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RICHARD N. WILT v. COMMONWEALTH PENNSYLVANIA (11/06/81)

decided: November 6, 1981.

RICHARD N. WILT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE ET AL., RESPONDENTS



Original jurisdiction in the case of Richard N. Wilt v. Department of Revenue, Commonwealth of Pennsylvania, and Milton Lopus, Secretary of Revenue, Commonwealth of Pennsylvania.

COUNSEL

Jay R. Braderman, Baskin & Sears, for petitioner.

Herbert L. Olivieri, Chief, Torts Litigation Unit, with him, Randall G. Gale, Deputy Attorney General, and Harvey Bartle, III, Attorney General, for respondents.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. President Judge Crumlish and Judges Mencer, Rogers, Blatt and MacPhail. Opinion by Judge Blatt. Dissenting Opinion by Judge Rogers.

Author: Blatt

[ 62 Pa. Commw. Page 317]

This matter now reappears before us, we having previously sustained some and overruled some other

[ 62 Pa. Commw. Page 318]

    preliminary objections to the amended petition for review of the petitioner, Richard N. Wilt, filed by the respondents Department of Revenue and Milton Lopus, former Secretary of Revenue. Wilt v. Department of Revenue, 46 Pa. Commonwealth Ct. 559, 406 A.2d 1217 (1979). The petitioner has now filed an amended complaint, as we directed, and the respondents have again raised preliminary objections which we must now address. We will not repeat the facts which are succinctly and ably described by Judge Rogers in the opinion above cited.

The respondents have raised preliminary objections as to the official immunity of Respondent Lopus, the running of the statute of limitations and this Court's lack of jurisdiction. And, because we agree that this Court does not have jurisdiction, we need not address the other objections.

We believe that we lack jurisdiction because the appeal here is predicated on a dismissal allegedly invalidated by the respondents' failure to comply with the Governor's Management Directive relating to the dismissal of non-civil service employees. In this connection, our opinion in Robinson v. Shapp, 23 Pa. Commonwealth Ct. 153, 350 A.2d 464 (1976), is instructive. There, in a case also involving an executive order of the Governor, we sustained a preliminary objection raising the issue of justiciability for the obvious reason that if there is no justiciable issue we have no jurisdiction.

In Pagano v. Pennsylvania State Horse Racing Commission, 50 Pa. Commonwealth Ct. 499, 413 A.2d 44 (1980), we held that only those directives of the Governor, which are authorized by the Constitution or promulgated pursuant to statutory authority, have the force of law. Judge Wilkinson wrote:

Of course, the Governor may issue proclamations or communications ...


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