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JAMES HASINECZ v. COMMONWEALTH PENNSYLVANIA (09/23/86)

decided: September 23, 1986.

JAMES HASINECZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT



Appeal from the Order of the Pennsylvania State Police in the case of Re: James Hasinecz, dated August 9, 1984.

COUNSEL

Anthony C. Busillo, II, Mancke, Lightman and Wagner, for petitioner.

Michael L. Harvey, Deputy Attorney General, with him, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Barry and Palladino. Opinion by Judge Doyle.

Author: Doyle

[ 100 Pa. Commw. Page 623]

This is an appeal by James Hasinecz (Petitioner) from an August 9, 1984 letter from the Director of the Bureau of Personnel of the Pennsylvania State Police denying Petitioner's request for a hearing. Petitioner had sought a hearing of (1) the State Police's refusal to reinstate him and (2) the State Police's refusal to grant him benefits for the period subsequent to his retirement which benefits Petitioner alleges he is entitled to under Section 1 of the Act of June 28, 1935, P.L. 477, as amended, 53 P.S. § 637 (Heart and Lung Act).

On July 15, 1981 Petitioner notified the State Police that he wished to exhaust his sick and annual leave and then take a disability retirement; in fact he did retire on December 31, 1981. Petitioner maintains that although he wanted to be placed on work related disability retirement he was actually placed on non-work related

[ 100 Pa. Commw. Page 624]

    disability retirement. Thus, in order to establish the work related nature of his disability, Petitioner instituted a workmen's compensation action and won a favorable determination in 1984. Because of the workmen's compensation finding that Petitioner's disability was work related, the State Police retroactively credited Petitioner with Heart and Lung Act benefits, but only for the period between the onset of his disability and his retirement. Then, in a May 9, 1984 letter to the State Police, Petitioner's counsel indicated that Petitioner wanted the State Police to "revoke the actions taken by the [State Police] so that [Petitioner] may be placed under The Heart-Lung Act and be restored to full duty when his doctors indicate he is able." In a May 21, 1984 letter to Petitioner's counsel the State Police Director of the Bureau of Personnel informed counsel that pursuant to a policy of which Petitioner was aware (a fact he does not deny) enlisted members of the State Police who terminate their employment are, categorically, not reinstated. A June 4, 1984 letter to Petitioner's counsel from the chief counsel for the State Police reiterated this position. Petitioner then, in an August 2, 1984 letter, requested a hearing before the State Police Heart and Lung Review Board to determine (1) whether he was entitled to benefits for the period subsequent to his resignation, (2) whether his condition was permanent (which would effectively bar Heart and Lung Act benefits) and (3) "the related legal implications of his prior retirement." An August 9, 1984 letter from the Director of the Bureau of Personnel denied the request for a hearing and Petitioner has timely appealed from that denial.

On appeal Petitioner maintains that the refusal to grant him a hearing on the issues of reinstatement and heart and lung benefits constituted the deprivation of property rights without due process. Under Sections

[ 100 Pa. Commw. Page 625504]

and 101 of the Administrative Agency Law, 2 Pa. C.S. § 504 and § 101, due process in the form of notice and an opportunity to be heard is required only when a personal or property right or other similar interest is affected by a final order. An individual has a property interest mandating due process protection only when he has a legitimate claim of entitlement to the asserted right, Marino v. Commonwealth, 87 Pa. Commonwealth Ct. 40, 486 A.2d 1033 (1985), or in other words, an enforceable expectation governed by statute or contract. Amesbury v. Luzerne County Institution District, 27 Pa. Commonwealth Ct. 418, 366 A.2d 631 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Additionally, because it has been held that duly promulgated "legislative" regulations have the force and effect of statutory law, Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978), they also can be the source of a substantive property right.

Petitioner asserts that his substantive right to reinstatement stems from the State Police policy of not reinstating former members. We fail to see how a policy which establishes no right to reinstatement could create, by its existence, a right to the very thing it denies. Accordingly, we reject Petitioner's ...


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