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MARK S. KEENHEEL v. COMMONWEALTH PENNSYLVANIA (10/25/89)

decided: October 25, 1989.

MARK S. KEENHEEL, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA SECURITIES COMMISSION, ROBERT M. LAM, CHAIRMAN OF THE PENNSYLVANIA SECURITIES COMMISSION, ELIOTT KLEIN, CHIEF COUNSEL OF THE PENNSYLVANIA SECURITIES COMMISSION, VICTOR WRIGHT, DIRECTOR OF ENFORCEMENT, PENNSYLVANIA SECURITIES COMMISSION, APPELLEES



Appeal from the Order of the Commonwealth Court of Pennsylvania, entered at No. 976 C.D. on July 25, 1988. IN A MATTER OF ITS ORIGINAL JURISDICTION.

COUNSEL

Mark S. Keenheel, pro se.

David M. Donaldson, Senior Deputy Atty. Gen., for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, Former Justice, did not participate in the decision in this case. Zappala, J., files a concurring opinion. Flaherty, J., files a dissenting opinion.

Author: Nix

[ 523 Pa. Page 224]

OPINION

The issue to be addressed in this appeal is whether the Board of Claims had exclusive jurisdiction to hear and to determine the underlying claim in this matter. This is a direct appeal from an order of the Commonwealth Court, under its original jurisdiction, which transferred to the Board of Claims the action filed by appellant herein, Mark S. Keenheel, whereby he sought to rescind or to nullify an agreement entered into with his former employer, the Pennsylvania Securities Commission ("Commission"). The transfer order issued in response to preliminary objections filed by the Commission challenging the subject matter jurisdiction of the Commonwealth Court. The Honorable Doris A. Smith viewed the matter as based upon a contract executed between appellant and the Commonwealth and concluded that, pursuant to section 4 of the Board of Claims Act, 72 P.S. § 4651-4 ("section 4"),*fn1 the appropriate forum to resolve

[ 523 Pa. Page 225]

    appellant's complaint in equity was the Board of Claims, hence, the Commonwealth Court lacked jurisdiction. Accordingly, that court transferred the matter pursuant to section 5103 of the Judicial Code, 42 Pa.C.S. § 5103. For the reasons that follow, we conclude that this action is not one arising from a contract action against the Commonwealth as envisioned in section 4, thus we reverse the decision below and remand the matter to the Commonwealth Court for it to reach the merits of the claim submitted.

Appellant was employed as an attorney with the Commission, and, in March of 1987, he filed race discrimination charges against the Commission and certain of its officials through the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. On June 17, 1987, the Commission terminated appellant's employment, effective September 1, 1987. In response, appellant filed a petition in the Commonwealth Court alleging that the termination was in retaliation for filing the charges of race discrimination. Negotiations then commenced between appellant and the Commission. On August 27, 1987, shortly before the termination was to occur, the parties entered into the settlement agreement at issue in this case.

The agreement voided the termination of appellant's employment, and provided that appellant would resign effective September 1, 1987. It also provided that the Commission would pay appellant the sum of six thousand dollars in satisfaction of "costs and expenses," and further provided that all personnel records, other than routine data, generated during 1987 pertaining to appellant, would be held by the Commission as non-public records pursuant to the "Right to Know Act," Act of June 21, 1957, P.L. 390, § 1 et seq., 65 P.S. § 66.1 et seq. The agreement further established that information as to these records would not be disclosed publicly, and that, if inquiries were ever made to the Commission regarding the quality of appellant's job performance, the Commission would state that his performance had been "very good," inasmuch as this corresponded to appellant's

[ 523 Pa. Page 226]

    performance evaluation of December, 1986. The agreement obliged appellant to withdraw the charges of racial discrimination.

On April 25, 1988, appellant, alleging that the Commission had committed a material breach in that the Commission had purportedly disclosed to a member of the general public certain unfavorable allegations regarding appellant's job performance, commenced this action seeking equitable rescission of the settlement agreement. On June 13, 1988, appellant amended his complaint to include the allegation that the agreement was void under provisions of the "Sunshine Act," Act of July 3, 1986, P.L. 388, No. 84, § 1 et seq., 65 P.S. § 271 et seq. He asserted that the agreement had been adopted by the Commission in a private session which, under the Sunshine Act, should have been open to the public, and, further, that information as to the private nature of the session had only recently come to light. In seeking to be released from the agreement, appellant admittedly desires to reinstate his discrimination complaints.

The jurisdiction of the Board of Claims is set forth under section 4, which provides in pertinent part:

The Board of Claims shall have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more.

In Shovel Transfer and Storage, Inc. v. Simpson, et al., 523 Pa. 235, 565 A.2d 1153 (1989), this Court recently stated that the determining factor as to whether the jurisdiction of the Board of Claims is invoked depends on whether the claim asserted against the Commonwealth is founded in contract.

The mere fact that the validity of a contract may turn upon issues of statutory duty does not create a statutory right of action. Rather, the focus is upon the origin of the rights claimed. In the instant matter, Shovel's objective is to establish the enforceability of ...


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