IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Geneva Johnson

, : Petitioner :

:

v. :

: Pennsylvania Department of Human : Services Bureau of Hearings and : Appeals, : No. 517 M .D. 2015 Respondent : Submitted : February 19

, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE ANNE E. COVEY , Judge

HONORABLE ROCHELLE S. FRIEDMAN , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: May 5, 2016

The Pennsylvania Department of Human Services (Department) filed

preliminary objections in the nature of a demurrer to Geneva Johnson’s (Johnson)

petition for review (Petition) filed in this Court’s original jurisdiction . In her Petition,

Johnson asks this Court to revers e the Department’s Bureau of Hearings and Appeals’

(Bureau) September 28, 2015 order denying Johnson’s permanent legal custodian

(PLC) subsidy and affirming Johnson’s eligibility to receive the PLC subsidy s o long

as Johnson’s niece

, Zakiyyah Johnson (Zakiyyah)

, continues to engage in qualifying

activities through age 21. The issue before this Court is whether Johnson has stated a

claim upon which relief can be granted in this Court’s original jurisdiction. After

review, we sustain the Department’s preliminary objections.

In 2001, the G eneral Assembly created a subsidy program which

provides crucial financial support for families willing to become permanen t legal

custodians pursuant to S ection 6351(f.1)(3) of the Juvenile Act , 42 Pa.C.S. §2

6351(f.1)(3)

. The PLC subsidy is a need

- based program which mandates the legal

custodian to meet all of the requirements for foster parenthood, submit to an annual

eligibility evaluation and have the ability to provide for the child without court

supervision

.

Johnson is the primary car egiver and permanent legal custodian of

Zakiyyah, who is a full

- time Pennsylvania State University (PSU) student in State

College, Pennsylvania. Johnson has been Zakiyyah’s sole caregiver and permanent

legal custodian

, and has received a PLC subsidy since 2009, when Zakiyyah was 11

years old. The PLC s ubsidy has been crucial to Johnson’s ability to financially

provide for her niece’s basic needs, as Johnson solely uses th at money for Zakiyyah’s

books, clothing, food, toiletries and other personal items.

In June 2012, Johnson’s sister, Zakiyyah’s mother, filed a petition to

modify custody, in which she sought full legal and physical custody of then

- 14

- year

old Zakiyyah. In response, a new set of permanency hearings were conducted to

determine if Zakiyya h ’s reunification with her mother was possible. In January 2013,

when Zakiyyah was 15 years old, the petition to modify custody was resolved

, and

Johnson retained her PLC s ubsidy. Zakiyyah graduated from Multicultural Academy

Charter School in Philadelph ia on June 12, 2015. Zakiyyah has always been a hard

working student dedicated to pursuing a college education. Zakiyyah turned 18 years

old in August 2015, as she was leaving for PSU to begin her first year of college

.

In 2012, the definition of “chi ld” eligible for the PLC subsidy was

amended by Act of June 30, 2012, P.L. 668, No. 80 ( Act 80 ), which revised what was

then called the Public Welfare Code 1 to extend subsidy eligibility to age 21 for

1 The Act of June 13, 1967 (P.L. 31, No. 21), as amended, 62 P.S. §§ 101

– 1503

. Effective
December 28, 2015, the Public Welfare Code was renamed the “Human Services Code.” 62 P.S. §

101.3

caretakers of children who were older than age 13 when their associated PLC o rder s

w er e e ffective and who engaged in one of the following activities:

(i) completing secondary education or an equivalent credential;

(ii) enrolled in an institution which provides postsecondary

or vocational education;

(iii) par ticipating in a program actively designed to promote

or remove barriers to employment;

(iv) employed for at least 80 hours per month; or

(v) incapable of doing any of the activities described in subparagraph (i), (ii), (iii) or (iv) due to a medical or

b ehavioral health condition, which is supported by regularly updated information in the permanency plan of the child.

Section 1302 of the Public Welfare Code, 62 P.S. § 1302. 2

The Department notified Johnson by July 9, 2015 letter , received on July

17, 2015, that her PLC s ubsidy would be discontinued on Zakiyyah’s 18 th birthday in

August 2015. O n August 11, 2015, Johnson appealed from the Department’s July 9,

2015 notice

. On August 25, 2015, the Department issued a Rule to Show Cause

requesting factua l and legal sup port to continue Johnson’s PLC s ubsidy. On

September 16, 2015, Johnson submitted her response to the Rule to Show Cause. On

September 28, 2015, the Bureau issued an o rder denying Johnson’s PLC s ubsidy. On

October 28, 2015, Johnson filed h er Petition in this Court’s original and appellate

jurisdictions. On November 25, 2015, the Department filed preliminary objections in

the nature of a demurrer to Johnson’s P etition filed in this Court’s original

jurisdiction . On December 8, 2015, Johnso n opposed the Department’s preliminary

objections.

2 Added by Section 1 of Act of September 30, 2003, P.L. 169.4 This Court’s review of preliminary objections is limited to the pleadings.

Pa

. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.

,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d , 924 A .2d 1203 ( Pa. 2007).

[This Court is] required to accept as true the well

- pled

averments set forth in the . . . c omplaint, and all inferences reasonably deducible therefrom. Moreover, the [C]ourt need not accept as true conclusions of law, unwarranted

i nferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the preliminary objectio ns should be sustained, the doubt must be resolved in favor of overruling the preliminary objections.

Id. at 415

- 16 (citations omitted).

The Department argues that Johnson’s Petition fails to state a claim for

which relief can be awarded in this Court’s original jurisdiction because the Petition

is based solely on alleged errors in the Bureau’s adjudication and does not assert or

identify an original jurisdiction cause of action. We agree.

The Pennsylvania Supreme Court expressly held:

[T] hose matte rs our legislature has p laced within

Commonwealth Court’ s appellate jurisdiction under Section

763 [of the Judicial Code, 42 Pa.C.S. § 763

, ] are excluded from its original jurisdiction under Section 761(a)(1) [of the Judicial Code, 42 Pa.C.S. § 761(a)(1)]. I n short, the

Commonwealth Court’ s original jurisdiction of actions against the Commonwealth is limited to those not within its

. . . appellate jurisdiction over appeals from Commonwealth agencies, whether directly under Section 763(a)(1) or (2) [of the Judicial Code], indirectly under Section 762(a)(3) or (4) [of the Judicial Code] or otherwise within its appellate jurisdiction.5

Pa. Dep’t of Aging v. Lindberg , 469 A.2d 1012, 1015

- 16 (Pa. 1983). Section

763 (a)(1) of the Judicial Code defines this Court’s appellate jurisdiction, in relevant

part:

General rule.

--

. . . the Commonwealth Court shall have

exclusive jurisdiction of appeals from final orders of government agencies in the following cases:

(1) All appeals from Commonwealth agencies under Subchapter A of Chapter 7 of Title 2 (relating to judicial review of Commonwealth agency action) or otherwise

. . . and from any other Commonwealth agency having Statewide jurisdiction.

42 Pa.C.S. § 763 (a)(1)

.

Johnson prop erly admits in her answer to the Department’s preliminary

objections that “Johnson has applied for a review of a final order of a Commonwealth

agency, which is squarely within th e appellate jurisdiction of this Honorable

Court under 42 Pa.C.S. § 763(a)(1)

. ” Johnson’s Answer to Depar t ment ’s

Preliminary Objections at 2 (emphasis added).

This Court has observed since its inception that it

e xercises jurisdiction which is ‘ unique in that it is predicated upon the identity of the parties and the capacity in wh ich they sue or are sued rather than upon the nature of the cause of action asserted. ’ Thus, absent statutory exception, the identity of [the Department] defines the perimeters of this Court ’ s jurisdiction. The identity of [the Department] as a Commonwea lth agency is not in dispute. Therefore, [Johnson] may not circumvent the jurisdiction of this Court, original or appellate, by simply labeling [ her ] action against [ the Department ] as [ a complaint in equity ]

.

[ E

. Stroudsburg Univ. v. Hubbard

, 591 A.2d 1181,] 1184 [(Pa. Cmwlth. 1991)] (emphasis added) (citations omitted).
Here, [Johnson] sought to place this matter in this Court’ s original jurisdiction by labeling it [an equity] action, not an appeal from the underlying

. . . proceedings. Regardless of6 how her claim is labeled, [Johnson] is seeking the review of

the [Bureau’s September 28, 2015 order.]

As such, this Court lacks original jurisdiction over the

matter.

Tran v. State S

ys. o f H igher Educ., 986 A.2d 179, 184 (Pa. Cmwlth. 2009).

Accordingly, the Department’s preliminary objection s to Johnson’s Petition filed in

this Court’s original jurisdiction are sustained

. 3 Since Johnson filed in both this

Court’s original and appellate jurisdiction s , Johnson’s Petition filed in this Court’s

original jur isdiction is dismissed, and the Petition will proceed in this C ourt ’s

appellate jurisdiction.

___________________________ ANNE E. COVEY, Judge

3 “ Due to our disposition, we dismiss as moot [the Department’s remaining ] preliminary
objections

. . . .” Seitel Data, Ltd. v . Ctre. Twp., 92 A.3d 851 , 863 (Pa. Cmwlth. 2014).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Geneva Johnson, : Petitioner :

:

v. :

: Pennsylvania Department of Human : Services Bureau of Hearings and : Appeals, : No. 517 M.D. 2015 Respondent :

O R D E R

AND NOW, this 5 th day of May , 201 6

, the Pennsylvania Department of

Human Services ’ preliminary objections in the nature of a demurrer to Geneva

Johnson’s (Johnson) petition for review (Petition) filed in this Court’s original

jurisdiction are SUSTAINED. Accordingly, Johnson’ s Petition filed in this C ourt’s

original jurisdiction is DISMISSED.

__________________ _________ ANNE E. COVEY, Judge