Pagano v. Pennsylvania State Horse Pacing Commission

Opinion by Judge Wilkinson, Jr., The Court has before it defendants’ preliminary objections to plaintiff’s complaint seeking declaratory judgment.1 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 [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.2 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 granting an entitlement to continued employment to an employee in a [503] non union position not included within the civil service system. Absent legislative action such a proposition is dubious. Mahoney v. Philadelphia Housing Authority, 13 Pa. Commonwealth Ct. 243, 320 A.2d 459 (1974) (allocatur refused), cert. denied, 419 U.S. 1122 (1975) . The basis of plaintiff’s asserted property right being insufficient, we sustain defendant’s preliminary objections. Order And Now, this fifteenth day of April, 1980, the preliminary objections of the defendant 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 a Commissioner of the Pennsylvania State Horse Racing Commission and Robert B. Class, 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 an Attorney for the Pennsylvania State Horse Racing Commission, are sustained and the complaint of Plaintiff, Peter Y. Pagano, is hereby dismissed. President Judge Crumlish concurs in the result only. Footnotes [1] Prior to the commencement of this action plaintiff initiated a suit in the United States District Court for the Middle District of Pennsylvania against most of the instant defendants alleging they had denied him a property interest in his job without due process of law. The United States District Court abstained from deciding the case pending resolution of plaintiff’s property rights under state law. Plaintiff filed a complaint for declaratory judgment which is being considered as a petition for review addressed to this Court’s original jurisdiction as per Pa. R.A.P. 1502 and 1503. [2] There are three documents, consisting of two memos from the Governor’s Secretary of Personnel and one management directive from the Governor.