Pennsylvania State Education Ass'n ex rel. Wilson v. Commonwealth, Department of Community & Economic Development

4 A.3d 1156, 2010 Pa. Commw. LEXIS 522

• Court: Commonwealth Court of Pennsylvania
• Decided: September 24, 2010
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.

The Pennsylvania State Education Association (PSEA) petitions this court for a judgment declaring the home addresses of public school employees to be exempt from disclosure under the Right-to-Know Law¹ and enjoining the Office of Open Records from permitting their disclosure. In response, the Office of Open Records has filed preliminary objections seeking to have the action dismissed for lack of jurisdiction and for failure to state a cause of action. In essence, the Office of Open Records contends that the statutory procedure for resolving disputes arising from document requests made under the Right-to-Know Law is exclusive and bars PSEA’s attempt to seek declaratory and equitable relief.

Background

We begin with a procedural history of this case. Shortly after the enactment of the 2009 version of the Right-to-Know Law, PSEA requested an advisory opinion from the Office of Open Records that a public school employee’s home address is exempt from disclosure under the Right-to-Know Law. Petition for Review, ¶ 44. The Office of Open Records responded, after some delay, that PSEA’s request was moot because the Office had already made several determinations holding, generally, that the home addresses of public employees, including those employed by school districts, were not exempt from disclosure. Petition for Review, ¶ 49.

PSEA then filed the instant petition for review. It asserted that numerous school districts had received requests for the names and addresses of public school employees, and some had already released this information. Petition for Review, ¶¶ 92-93. Contending that the public school employee members of PSEA lacked any adequate remedy of law to prevent the release of private information protected by the Pennsylvania Constitution, PSEA sought to enjoin the Office of Open Records from continuing to sanction a violation of the “right to privacy of every ... public school employee....” Petition for Review, ¶ 91. PSEA’s theory is that the Right>-to-Know Law can be construed to exempt the disclosure of public school employees’ addresses or, alternatively, must be so construed lest the statute interfere with the right of privacy conferred upon public school employees by the Pennsylvania Constitution.

With its complaint, PSEA filed an application for a preliminary injunction to prevent the Office of Open Records from directing any school to release the addresses of public school employees, pending the outcome of a decision on the merits of its request for permanent injunctive relief.² On July 28, 2009, after a hearing, this Court granted the request for a preliminary injunction. Pennsylvania State Education Association ex rel. Wilson v. Department of Community and Economic Development, Office of Open Records, 981 A.2d 383 (Pa.Cmwlth.2009). On August 17, 2010, the Pennsylvania Supreme Court affirmed this Court’s order, without prejudice to any party’s right to appeal a final disposition of the present action. Pennsylvania State Education Association ex rel. Wilson v. Department of Community and Economic Development, Office of Open Records, — Pa. -, 2 A.3d 558 (2010).

On August 6, 2009, the Office of Open Records filed preliminary objections to PSEA’s petition for review, seeking the petition’s dismissal on several grounds. First, the Office of Open Records contends that this Court lacks subject matter jurisdiction. It contends that the statutory-remedy in the Right-to-Know Law is exclusive and deprives this Court of jurisdiction over PSEA’s request for declaratory relief. Second, it asserts that PSEA and its members lack standing because the alleged harm is speculative at best and not immediate, direct and substantial. Third, it asserts that the petition for review fails to state a cause of action because neither the Right-to-Know Law nor the Pennsylvania Constitution has established a blanket right in every public school employee to have his address kept private. Such rights, if any, can only be determined on a case-by-case basis, depending on the circumstances of the individual employee.

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations, as well as all inferences reasonably deducible therefrom. Pennsylvania Chiropractic Federation v. Foster, 1B6 Pa.Cmwlth. 465, 583 A.2d 844, 847 (1990). Preliminary objections will be sustained where, assuming the truth of the facts as pled, it is clear that the law does not permit recovery. Stilp v. Cappy, 931 A.2d 108, 110 (Pa.Cmwlth.2007).

Right-to-Know Law

The 1957 version of the Right-to-Know Law³ placed the burden on the requester to prove that the requested record was a public record. See Rowland v. Public School Employees’ Retirement System, 885 A.2d 621, 627 (Pa.Cmwlth.2005); Section 2 of the prior Right-to-Know Law, formerly 65 P.S. § 66.2.⁴ The former law defined “public record” to exclude those records that “would operate to the prejudice or impairment of a person’s reputation or personal security.” Section 1(2) of the prior Right-to-Know Law, formerly 65 P.S. § 66.1(2). This Court interpreted that statutory definition “as creating a privacy exception to the Right-to-Know Law’s general rule of disclosure.” Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897, 905 (Pa. Cmwlth.2006). When considering this “privacy exception,” we applied a balancing test that weighed the privacy interests at issue against the public benefits to follow from the disclosure of the document in question. Id. at 906. Generally, home addresses were exempted from disclosure under this balancing test, but the right to privacy in one’s home address was never absolute. See Goppelt v. City of Philadelphia Revenue Department, 841 A.2d 599, 606 (Pa.Cmwlth.2004) (allowing the disclosure of delinquent taxpayers’ addresses because it benefitted the public).

The current Right-to-Know Law became effective on January 1, 2009, and it differs from the 1957 version in two ways critical to PSEA’s petition for review. First, all records held by an agency are now presumed to be public records.⁵ Second, the language and scope of the “personal security” exemption has changed.

Beginning with the second of these key differences, the Right-to-Know Law now exempts the disclosure of a record that “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.” Section 708(b)(l)(ii) of the Right-to-Know Law, 65 P.S. § 67.708(b)(l)(ii). This standard is harder to satisfy than was the personal security exemption in the former law, which exempted the disclosure of a record that “would operate to the prejudice or impairment of a person’s reputation or personal security.” Section 1(2) of the former Right-to-Know Law, formerly 65 P.S. § 66.1(2). Notably, the current Right-to-Know Law requires a risk of physical harm to an individual and does not aim to protect an individual’s reputation.

The new Right-to-Know Law also expands the meaning of a “public record” by establishing a presumption that every record of a state or local agency is a public record. Section 102 of the Right-to-Know Law, 65 P.S. § 67.102. At the same time, the Law creates exemptions for certain information often contained in a public record. Specifically, Section 708(b)(6)(i)(A)-(C) identifies exemptions for the following information:

(A) A record containing all or part of a person’s Social Security number, driver’s license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number.

(B) A spouse’s name, marital status or beneficiary or dependent information.

(C) The home address of a law enforcement officer or judge.

65 P.S. § 67.708(b)(6)(i)(A)-(C). Notably, subsection (C) prevents the disclosure of home addresses for judges and law enforcement officers, but it is silent as to other state employees.

Finally, the new Right-to-Know Law provides that disclosure of a record will not be required where disclosure would violate another State or Federal law. Section 3101.1 states:

If the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply.

65 P.S. § 67.3101.1.

Positions of Parties

PSEA argues that there is a right to privacy implicit in Article I, Sections 1⁶ and 8⁷ of the Pennsylvania Constitution that prohibits the disclosure of any teacher’s home address. In other words, PSEA begins with the premise that to be constitutional, the Right-to-Know Law must be read to prohibit disclosure of teacher addresses. From this premise, PSEA makes two points.

First, PSEA argues that Section 708(b)(6)(i)(A) must be given the same effect as the personal security exemption in the 1957 version of the Right-to-Know Law. This means that a balancing test must be used whenever a requester demands a public record that may trigger the personal security exemption in the new law, as was done under the 1957 version. According to PSEA, in passing the new Right-to-Know Law:

[t]he General Assembly never intended to trench upon the right to privacy and never abolished the constitutional balancing act that courts and administrative agencies have been doing for decades when a Right-to-Know Law request implicates private personal information, such as a home address.

Brief of Petitioners, at 26. Accordingly, PSEA argues that a teacher’s home address is a “confidential personal identification number,” and exempt under Section 708(b)(6)(i)(A). This is true even though Section 708(b)(6)(i)(C) expressly exempts only the release of home addresses for judges and law enforcement officers.

Second, PSEA argues that because the Pennsylvania Constitution establishes a right of privacy, it is a “State law” that prohibits the disclosure of a teacher’s home address under Section 3101.1 of the Right-to-Know Law.⁸

In response, the Office of Open Records argues that the Pennsylvania Constitution does not establish a right to privacy in one’s home address and that PSEA’s effort to revive the “privacy exception,” judicially established under the 1957 version of the Right-to-Know Law, cannot be reconciled with the language of the new enactment.

First, the Office of Open Records argues that Article I, Section 1 of the Pennsylvania Constitution did not make a “right to privacy” one of the “indefeasible” rights acknowledged in Article I, Section 1, and no court has ever so construed Article I, Section 1. Further, Article I, Section 8, which relates to search and seizure, cannot be construed to create such a privacy right because our Supreme Court has expressly held that there is no reasonable expectation of privacy in one’s home address. Commonwealth v. Duncan, 572 Pa. 438, 455, 817 A.2d 455, 465 (2003) (holding that it “is all but impossible to live in our current society without repeated disclosure of one’s name and address.”).⁹ Without a reasonable expectation of privacy in a home address, Article I, Section 8 cannot be invoked. Simply, the Pennsylvania Constitution, although most assuredly a “law,” does not create or protect a citizen’s right to keep his home address a secret. Thus, it does not trigger Section 3101.1 of the Right-to-Know Law.

Second, the Office of Open Records argues that a teacher’s right to prevent disclosure of his or her address, if one exists, must come directly from the language of the new Right-to-Know Law. However, the new Law contains “different statutory language, [a] clear intent of openness, and [a] burden shift to the agency.” Brief of Respondents, at 23. Essentially, the Office of Open Records argues that the new Right-to-Know Law has changed so much that it is impossible to use precedent developed under the 1957 version of the Right>-to-Know Law that determined a “privacy” right by using a balancing test.

The Right-to-Know Law is intended to increase access to records by presuming all records held by an agency are public records. See Bowling v. Office of Open Records, 990 A.2d 813, 823 (Pa. Cmwlth.2010). In Bowling, this Court stated:

The new Law is significantly different in that the prior version of the Law narrowly defined the term “public record.” Under the current Law, however, any record, including financial records of a Commonwealth or local agency, is a public record to the extent the record: is not exempt from disclosure under the Law; is not exempt under Federal or State law, regulation, or judicial order or decree; or is not protected by privilege.

Id. Unlike the 1957 statute, the current version of the Right-to-Know Law makes the motive or reasonableness of a request for public records irrelevant.¹⁰ See, e.g., Section 302(b) of the Right-to-Know Law, 65 P.S. § 67.302(b) (agency may not deny “access to a public record due to the intended use of the public record ... ”). Likewise, the so-called privacy exception that arose in the decisional law interpreting the 1957 enactment was based upon the “personal security exemption” in the statute. Pennsylvania State University v. State Employees’ Retirement Board, 594 Pa. 244, 258, 935 A.2d 530, 538 (2007) (“[W]hile Appellants invite this Court to separate our right to privacy analysis from our personal security exception analysis, it is clear that no such division is warranted.”). To conclude that the privacy exception and its attendant balancing test have continued viability under the new Law is a proposition fraught with challenge, but we need not face that challenge because we conclude that we lack jurisdiction.

Jurisdiction

PSEA asserts that its request for declaratory relief is appropriate because there is an actual or threatened invasion of its members’ right to privacy in their home addresses and, therefore, an actual controversy. Additionally, PSEA argues that there are no administrative remedies available to its members to protect against this invasion. This is because a teacher does not know when a request for a home address is submitted to a school district, and there is no mechanism in the Right-to-Know Law by which a teacher, or any state employee, can oppose disclosure of personal information that could adversely affect the employee’s personal security.

The Office of Open Records rejoins that PSEA is trying to circumvent the statutory process established in the Right-to-Know Law. Under the Declaratory Judgments Act, a court lacks jurisdiction to grant declaratory relief in a matter subject to “a tribunal other than a court.” 42 Pa.C.S. § 7541(c)(2). In Lashe v. Northern York County School District, 52 Pa. Cmwlth. 541, 417 A.2d 260, 264 (1980), this Court held that where a statutory remedy exists, it is exclusive unless the jurisdiction of the courts is preserved in the statute creating the remedy. The Office of Open Records explains that the subject matter of PSEA’s complaint, i e., a school district’s disclosure of a teacher’s address by a requester, is a subject that has been placed within the exclusive jurisdiction of a tribunal other than a court, ie., the Office of Open Records.

The Office of Open Records explains the statutory procedures as follows. School districts, which are local agencies, decide whether or not to release a record. See Section 302(a) of the Right-to-Know Law, 65 P.S. § 67.302(a) (a “local agency shall provide public records in accordance with this act.”). The school district’s decision can then be appealed to the Office of Open Records. See Section 1101(a) of the Right-to-Know Law, 65 P.S. § 67.1101(a).¹¹ A teacher may elect to participate in a Section 1101(c)(1) proceeding. After the Office of Open Records makes a final determination, a teacher may appeal that determination to the Court of Common Pleas of the County where the school district is located. See Section 1302(a) of the Right-to-Know Law, 65 P.S. § 67.1302(a).¹² The Office of Open Records maintains that this statutory procedure is mandated by the Right-to-Know Law, which deprives this Court, or any court, of subject matter jurisdiction. This is likewise true for PSEA’s request for injunctive relief. Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 278-79, 328 A.2d 819, 824 (1974) (the existence of an adequate statutory remedy forecloses a court of equity’s jurisdiction over a matter).

Further, the Office of Open Records asserts that there is a statutory mechanism for a PSEA member, who feels threatened by the release of his or her home address, to participate in the statutory procedure. Section 1101(c)(1) of the Right-to-Know Law allows any individual with a direct interest in a record request to

file a written request to provide information or to appear before the appeals officer [of the Office of Open Records] or to file information in support of the requester’s or agency’s position.

65 P.S. § 67.1101(c)(1). The appeals officer can allow the submission of this information even when no hearing has yet been held and his opinion has not yet been written, so long as the hearing officer believes the proffered information will have probative value. Section 1101(c)(2) of the Right-to-Know Law, 65 P.S. § 67.1101(c)(2).¹³

Again, we do not decide the question of whether the statutory procedure established in the Right-to-Know forecloses the ability of this Court, or any court, to circumvent the statutory procedure by allowing PSEA’s action for declaratory and equitable relief to proceed. There is a more fundamental reason why this Court cannot hear PSEA’s complaint.

The Judicial Code confers original jurisdiction in the Commonwealth Court for “all civil actions or proceedings ... [a]gainst the Commonwealth government.” See 42 Pa.C.S. § 761(a)(1). Naming a Commonwealth agency is not enough to satisfy Section 761(a)(1). The Commonwealth agency so named must have a cognizable interest in the outcome of the action. Pennsylvania State Education Association v. Department of Education, 101 Pa.Cmwlth. 497, 516 A.2d 1308 (1986) (holding this Court lacked original jurisdiction over suit against Department of Education where Department had only minimal involvement in challenged inter-district tuition agreement). Stated otherwise, “[a] Commonwealth agency or official is only an indispensable party to a proceeding if the action ‘cannot conceivably be concluded with meaningful relief without the sovereign state itself becoming directly involved.’ ” Foreman v. Chester-Upland School District, 941 A.2d 108, 113 (Pa.Cmwlth.2008) (quoting Pennsylvania State Education Association, 516 A.2d at 1310). An indispensable party “is one whose rights are so connected with the claims of the litigants that no relief can be granted without infringing upon those rights.” Piper Aircraft Corp. v. Insurance Co. of North America, 53 Pa.Cmwlth. 209, 417 A.2d 283, 285 (1980).

In a request for records pursuant to the Right-to-Know Law, there are two parties: the requester and the agency whose records are being requested. The Office of Open Records is the tribunal that resolves disputes between requesters and agencies. The Office of Open Records itself, as a quasi-judicial tribunal, lacks any interest in the outcome of its adjudications. East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496, 507 (Pa.Cmwlth.2010) (holding that Office of Open Records lacks authority to participate in appeals of its decisions because as an adjudicatory body, “it is not aggrieved by the release of another’s agency records.”). Just as the Office of Open Records cannot participate in an appeal of one of its adjudications, it cannot serve as the appropriate defendant in PSEA’s original jurisdiction action at issue here.¹⁴

In his dissent, Judge Pellegrini contends that by naming not just the Office of Open Records but also its Executive Director and the Department of Community and Economic Development, PSEA has brought an action “against the Commonwealth government.” 42 Pa.C.S. § 761(a)(1). However, it is not the number of Commonwealth defendants named in the complaint but their function that is determinative of this Court’s jurisdiction.

PSEA seeks to direct the Office of Open Records in the exercise of its adjudicatory responsibility with respect to records in the possession of school districts. It is the school districts, not the Office of Open Records, that will receive the requests for teacher addresses. Accordingly, it is the school districts, not the Office of Open Records, that are the appropriate defendants to PSEA’s privacy claims.¹⁵ Further, the relief sought by PSEA, ie., a directive to the Office of Open Records on how to adjudicate, places this complaint beyond our jurisdiction. It would be error for a litigant to sue the Environmental Hearing Board for the purpose of directing how it should construe and apply a statute in future litigation, and this error would only be compounded, not corrected, by adding the Board’s individual judges as defendants.

A litigant challenging the constitutionality of the act commonly known as the Clean Streams Law,¹⁶ for example, must sue the Pennsylvania Department of Environmental Protection, which daily takes executive action to grant or deny permits under authority of the Law. See Section 5 of the Clean Streams Law, 35 P.S. § 691.5; Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa.Cmwlth. 192, 387 A.2d 989 (1978) (discussing, inter alia, Department’s considerations under Clean Streams Law when issuing permits). To pursue a claim that a provision of the Clean Streams Law, or any state environmental law, violates a constitutionally protected right, an action could be initiated in this Court against the Department and the Secretary of Environmental Protection. See, e.g., Northern Tier Solid Waste Authority v. Commonwealth, 825 A.2d 793 (Pa.Cmwlth.2003) (action in this Court’s original jurisdiction against the Departments of Revenue and Environmental Protection, and their Secretaries, asserting that municipal authorities’ constitutional rights to unimpaired contracts were violated by solid waste disposal fees). It would be error, however, to bring such an action against the Environmental Hearing Board, which “enforces” the Clean Streams Law strictly in a quasi-judicial capacity. Such a capacity does not give the Environmental Hearing Board a cognizable interest in the outcome of litigation, such as that found in Northern Tier to exist for the Department of Environmental Protection.

Courts enforce statutes. However, to challenge a statute or its application, it is never acceptable to name a court as the defendant. Indeed, merely to state the proposition is to refute it. It is no different for the Office of Open Records, which functions as a quasi-judicial tribunal, not a regulatory agency. It is not a proper defendant to PSEA’s action, which seeks to direct its future adjudicatory actions.

Conclusion

The appropriate defendant to the PSEA’s action is not the Office of Open Records but, rather, the school districts that hold the records and personal information sought to be protected from disclosure by PSEA. In the absence of a Commonwealth agency as a defendant, this Court lacks jurisdiction. Accordingly, the petition for review must be dismissed.

Judge SIMPSON did not participate in the decision in this case.

ORDER

AND NOW, this 24th day of September, 2010, it is hereby ORDERED that the preliminary objections of the Office of Open Records, in the above-captioned matter, are hereby SUSTAINED and the case DISMISSED without prejudice.

1 . Act of February 14, 2008, P.L. 6, No. 3, 65 P.S. §§ 67.101-67.3104.

2 . In support of its application for a preliminary injunction, PSEA argued that:

The threat to teachers and other school employees is real, not merely academic. It has been reported that between 1996 and 2000, 559,000 teachers were victims of violent crimes; approximately 28 out of every 1,000 teachers were victims of such crimes; and 3 out of 1,000 teachers were the victims of serious violent crimes such as rape, sexual assault, robbery and aggravated assault.

Petitioners' Brief in Support of a Preliminary Injunction, at 8 (citing Violence Against Teachers, http://www.safeyouth.org/scripts/ faq/violteacher.asp). Therefore, "[u]nfettered access to home addresses can bring school-related violence to a school employee’s door step.” Id. at 10.

3 . Act of June 21, 1957, P.L. 390, formerly 65 P.S. §§ 66.1-66.9, repealed by Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

4 . This section provided:

Every public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.

Id. This Court interpreted this provision as requiring the requester to prove that the record:

(1) is generated by an agency covered by the Act; (2) is a minute, order or decision of an agency or an essential component in the agency arriving at its decision; (3) fixes the personal or property rights or duties of any person or group of persons; and (4) is not protected by statute, order of decree of court.

Della Franco v. Department of Labor & Industry, 111 A.2d 776, 777 (Pa.Cmwlth.1999).

5 . Section 305 of the Right-to-Know Law, 65 P.S. § 67.305(a). An agency now has the burden of proving that a record is not a public record. Section 708 of the Right-to-Know Law, 65 P.S. § 67.708(a).

6 . Article I, Section 1, entitled "Inherent rights of mankind,” states:

All men are bom equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

7 .Article I, Section 8, entitled "Security from searches and seizures,” states:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable case, supported by oath or affirmation subscribed to by the affiant.

8 . In addition to Section 3101.1, PSEA notes that the definition of a "public record" under the Right-to-Know Law excludes any record that is exempt from disclosure because of "any other Federal or State law or regulation or judicial order or decree.” Section 102 of the Right-to-Know Law, 65 P.S. § 67.102. PSEA argues that decisions of the Pennsylvania Supreme Court holding that there is a right of privacy in one's home address constitute a "judicial order or decree," but it did not cite any case that produced that judicial order.

9 . In Duncan, 572 Pa. at 444, 817 A.2d at 458 (quoting Commonwealth v. Duncan, 752 A.2d 404, 412 (Pa.Super.2000)), the Supreme Court adopted the Superior Court's reasoning that "there is a fundamental difference between the type of information that is subject to a constitutionally protected right to privacy and a person's identification information, i.e., one’s name and address.”

10 . The 1957 version of the Right-to-Know Law was later amended to make the motive or reasonableness of a request irrelevant. Section 3.1 of the former Right-to-Know Law, formerly 65 P.S. § 66.3-1.

11 . It states:

(1) If a written request for access to a record is denied or deemed denied, the requester may file an appeal with the Office of Open Records or judicial, legislative or other appeals officer designated under section 503(d) within 15 business days of the mailing date of the agency’s response or within 15 business days of a deemed denial. The appeal shall state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request.

(2) Except as provided in section 503(d), in the case of an appeal of a decision by a Commonwealth agency or local agency, the Office of Open Records shall assign an appeals officer to review the denial.

65 P.S. § 67.1101(a)(l)(2).

¹²

Within 30 days of the mailing date of the final determination of the appeals officer relating to a decision of a local agency issued under section 1101(b) or of the date a request for access is deemed denied, a requester or local agency may file a petition for review or other document as required by rule of court with the court of common pleas for the county where the local agency is located. The decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.

65 P.S. § 67.1302(a).

13 . It provides:

The appeals officer may grant a request under paragraph (1) if:

(i) no hearing has been held;

(ii) the appeals officer has not yet issued its order; and

(iii)the appeals officer believes the information will be probative.

65 P.S. § 67.1101(c)(2).

14 . We are not implying, as Judge McCullough suggests in her dissent, that PSEA lacks standing to challenge requests for names and addresses of public school employees. PSEA's standing is not at issue.

15 . The Office of Open Records could be a proper defendant in some litigation. For example, if it failed to pay its vendors, it could be brought before the Board of Claims for breach of contract.

16 . Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001.