Wilt v. Commonwealth

Opinion by

Judge Blatt,

This matter now reappears before us, we having previously sustained some and overruled some other *318preliminary 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 as executive orders *319absent such authority, but these gubernatorial communications cannot 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 non-union position not included in the civil service system. Absent legislative action such a proposition is dubious.

50 Pa. Commonwealth Ct. at 502, 413 A.2d at 45 (citations omitted).

In the instant case the only authority cited by the petitioner for the Governor’s Management Directive is a regulation appearing at 4 Pa. Code §38.2 (5 Pa. B. 3098 (1975)). Surely, a bureaucratic or departmental regulation is not the kind of constitutional or statutory authority contemplated by this Court in Pagano.

Inasmuch as the sole basis alleged by the petitioner here for his appeal is the failure of the respondents to follow the Governor’s Management Directive and because that directive is not derived from any constitutional or statutory authority, we must hold that the issue before us is non-justiciable and must dismiss the petition for review because we lack jurisdiction to adjudicate it.

Order

And Now, this 6th day of November, 1981, the preliminary objections of the Pennsylvania Department of Revenue and Milton Lopus, the respondents herein, to the jurisdiction of the Commonwealth Court *320are sustained and the amended petition for review in the above-captioned matter is dismissed.