decided: July 26, 1988.
JOHN RULLI, APPELLANT
DANIEL T. DUNN ET AL., APPELLEES
Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of John Rulli v. Daniel T. Dunn, Warren L. Shaffer and Pennsylvania State Police, and Jay Cochran, Jr. and Michael Gavitt, No. GD 83-12918.
Louis P. Vitti, Louis P. Vitti and Assoc., P.C., for appellant.
Eugene G. Berry, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees.
President Judge Crumlish, Jr., Judge Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 118 Pa. Commw. Page 159]
John Rulli appeals an Allegheny County Common Pleas Court order sustaining the preliminary objections
[ 118 Pa. Commw. Page 160]
of State Police Commissioner Jay Cochran and Director of Records Michael Gavitt and dismissing the complaint against them.
This case is related to a case decided earlier by this Court in Dunn v. Rulli, 109 Pa. Commonwealth Ct. 355, 531 A.2d 103 (1987). Rulli was convicted of various crimes between 1961 and 1964, for which he received a full gubernatorial pardon in 1975. Thereafter, he petitioned the Allegheny Common Pleas Court for expungement of his criminal records, which ordered expungement in 1979. When he was precipitously dismissed from his employment with a Las Vegas casino, he discovered that information on his criminal record was made available to his employer by the State Police. In Dunn v. Rulli, we concluded that Rulli's contempt action against officials of the State Police could not be sustained. In this case, we must decide if Rulli's action for damages against Commissioner Cochran and Director Gavitt may be sustained.*fn1 For the reasons which follow, we conclude that it may not.
[ 118 Pa. Commw. Page 161]
In his complaint, Rulli averred that the State Police was "negligent in expressly refusing to carry out" the common pleas court's expungement order. Complaint, para. 14. Rulli contends on appeal that the court erred in sustaining Cochran and Gavitt's preliminary objections because his complaint set forth sufficient facts to present the case to a jury. We disagree.
As stated in Dunn v. Rulli, the common pleas court's expungement order did not refer to the State Police, Commissioner Cochran or to Director Gavitt. Although the order specifically names certain Pittsburgh and Allegheny County officials who were directed to expunge Rulli's record of conviction from their files, it merely directs those persons to "request the return of records made available to 'state or federal agencies.'" If we assume that the state agencies referred to in this order include the State Police, then it is clear that that agency is not being ordered to do anything at all. To the contrary, the named "keeps of criminal records" were directed merely to ask for the return of criminal records in the hands of state agencies. Had the common pleas court determined to order the State Police to expunge its records, then it would have employed the same, specific, mandatory language used to so direct the county and city officials.
Moreover, until the recent case of Commonwealth v. C.S., 517 Pa. 89, 534 A.2d 1053 (1987), where our Supreme Court held that criminal records must be expunged even when the beneficiary of a gubernatorial pardon had been convicted, prior authority supported the State Police position that it was required to maintain conviction data when pardons were granted for reasons other than innocence. See Cohen v. Barger, 11 Pa. Commonwealth Ct. 617, 314 A.2d 353 (1974); Commonwealth v. Homison, 253 Pa. Superior Ct. 486, 385 A.2d 443 (1978); and Commonwealth v. Binder, 267 Pa. Superior Ct. 558,
[ 118 Pa. Commw. Page 162407]
A.2d 50 (1979). Moreover, Section 1 of the Act of April 27, 1927*fn2 provides that the State Police
shall continue to procure and file for record, photographs, pictures, descriptions, fingerprints, and such other information as may be pertinent, of all persons who have been, or may hereafter be, convicted of crime within this Commonwealth . . . .
Thus, until the recent decision of Commonwealth v. C.S., the State Police were under no duty to expunge conviction records.
In view of the fact that the expungement order was not directed to Cochran and Gavitt and that there was no duty under the case law or statutes to expunge, we hold that the common pleas court properly dismissed Rulli's complaint against them. Simply stated, Rulli's pleadings do not set forth any duty on the part of Cochran or Gavitt, the breach of which caused Rulli's termination.
Accordingly, the common pleas court order is affirmed.
The Allegheny County Common Pleas Court order, No. GD 83-12918, dated May 23, 1985, is affirmed.