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PETER V. PAGANO v. PENNSYLVANIA STATE HORSE RACING COMMISSION ET AL. (04/15/80)

decided: April 15, 1980.

PETER V. PAGANO, PLAINTIFF
v.
THE PENNSYLVANIA STATE HORSE RACING COMMISSION ET AL., DEFENDANTS



Original jurisdiction in case of Peter V. Pagano v. The Pennsylvania State Horse Racing Commission and Andrew R. Johnson, individually and in his capacity as Chairman of the Pennsylvania State Horse Racing Commission, and A. Marylyn Moyer, individually and in his capacity as Commissioner of the Pennsylvania State Horse Racing Commission, and Robert B. Glass, individually and in his capacity as former Executive Secretary of the Pennsylvania State Horse Racing Commission, and Larrick B. Stapleton, individually and in his capacity as Attorney for the Pennsylvania State Horse Racing Commission.

COUNSEL

Concurring opinion by Judge Craig.

Michael D. Fishbein, with him, Arnold, Levin, Adler, Barish, Daniels, Levin & Creskoff, and Richard H. Elliott, Cotlar, Aglow & Elliott, for plaintiff.

Mary Ellen Krober, with her, Norman J. Watkins and Allen C. Warshaw, Deputy Attorneys General, and Edward G. Biester, Jr., Attorney General, for defendants.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Wilkinson, Jr. President Judge Crumlish concurs in the result only. Concurring Opinion by Judge Craig. President Judge Crumlish and Judges Rogers and Williams, Jr. join in this concurring opinion.

Author: Wilkinson

[ 50 Pa. Commw. Page 501]

The Court has before it defendants' preliminary objections to plaintiff's complaint seeking declaratory judgment.*fn1 Plaintiff was employed by the Pennsylvania State Horse Racing Commission beginning March 24, 1974 as an Administrative Officer I and rising to the level of Deputy Executive Secretary prior to his dismissal on July 3, 1975. Plaintiff asserts that his constitutional rights have been abused by the deprivation of a property interest in his continued employment.

In order to obtain a property interest in employment protected by the Constitution one must have a

[ 50 Pa. Commw. Page 502]

    legitimate entitlement to it which arises from state law. Bishop v. Wood, 426 U.S. 341 (1976); Board of Regents v. Roth, 408 U.S. 564 (1972). In Pennsylvania a public employee is subject to summary dismissal unless by some legislatively authorized act greater employment rights are created. Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960). Most recently in Tomasetti v. Bowers, 47 Pa. Commonwealth Ct. 355, 408 A.2d 192 (1979), this Court found a deputy game protector, an executive branch employee of state government, had no legal expectancy of continued employment absent a valid contractual or express statutory basis.

Plaintiff bases his claimed property interest on directives issued by the Governor or his Secretary of Personnel.*fn2 Thus, our threshold determination must be the legal import of these documents.

Only executive orders which are authorized by the Constitution or promulgated pursuant to statutory authority have the force of law. Shapp v. Butera, 22 Pa. Commonwealth Ct. 229, 348 A.2d 910 (1975). Of course, the Governor may issue proclamations or communications as executive orders absent such authority, but these gubernatorial communications will not be enforced by the Courts. Plaintiff offers no specific authority on which the instant executive orders were promulgated and this Court finds none.

Even if we had found that the documents were issued in a manner which made them legally cognizable executive orders, in order for plaintiff to prevail it would have been necessary that the Governor had the power to issue a directive ...


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