           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Sherese Abrams,                                 :
                                                :
                              Appellant         :
                                                :
               v.                               :    No. 2167 C.D. 2014
                                                :
The Juvenile Justice Department                 :    Submitted: July 10, 2015



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                       FILED: September 3, 2015

       Sherese Abrams, pro se, appeals from the November 4, 2014 Order of the
Court of Common Pleas of Philadelphia County (trial court) that sustained the
Preliminary Objections (POs) filed by The Juvenile Branch of the Family Division
of the Philadelphia County Court of Common Pleas (Juvenile Court)1 asserting that
Ms. Abrams’ pro se civil action Complaint did not state a claim under
Pennsylvania law. The trial court concluded that the Juvenile Court, as part of the


       1
         Although the caption in this matter identifies the appellee/defendant as The Juvenile
Justice Department, the trial court concluded that the true party implicated in Ms. Abrams’ civil
action Complaint is the Juvenile Court. Our review of Ms. Abrams’ Complaint supports this
determination and, therefore, we will refer to the Juvenile Court as the appellee/defendant in this
matter.
Unified Judicial System of Pennsylvania, is an agency of the Commonwealth of
Pennsylvania and is immune from suit pursuant to what is commonly referred to as
the Sovereign Immunity Act (Act).2 On appeal, Ms. Abrams argues, inter alia, that
the trial court erred in finding that the Juvenile Court is entitled to immunity from
suit under the Act. Because we find no error in the trial court’s Order, we affirm.


       In June 2014, Ms. Abrams filed the pro se Complaint, which included the
following averments. In October 2011, Ms. Abrams’ son (Son), then fifteen, was
falsely accused of participating in an assault of an individual on the campus of
Temple University. (Compl. at 1.) Notwithstanding video evidence establishing
that Son was not involved in the assault, but was only a witness, Son was
prosecuted and subjected to “in[-]home probation, . . . unnecessary drug
screenings[,] . . . and unnecessary distress by academic negligence.” (Compl. at 1.)
On December 21, 2011, Son was to appear for a hearing on the assault at the
Juvenile Court, but Ms. Abrams did not take him to the hearing because Son was
suffering major stomach cramping due to a diagnosed medical condition. (Compl.
at 1.) Because of Son’s nonappearance, the Juvenile Court issued a warrant for
Son and, “[i]n less than 72 hour[s], at least 11 or 12 armed officers from the
warrant unit came to the[ir] home . . . and brutally tried to knock the door off of the
hinges with full force. They had loaded guns drawn, pointing them and [said]
where’s [Son] . . . .” (Compl. at 1.) Ms. Abrams contends that this “activity was
excessive, unnecessary and very life threatening as [Son] had [n]o criminal

       2
          See Sections 8521-8528 of the Judicial Code, 42 Pa. C.S. §§ 8521-8528. Pursuant to
Section 8521(a) of the Act, Commonwealth agencies are immune from suit unless that immunity
is specifically waived under Section 8522(b) of the Act. 42 Pa. C.S. §§ 8521(a), 8522(b); Jones
v. Southeastern Pennsylvania Transportation Authority, 772 A.2d 435, 439 (Pa. 2001).

                                              2
background.” (Compl. at 1-2.) Thereafter, Son “was sentenced/ordered to attend a
school organized for troublesome young males,” which resulted in him not being
able to attend his local high school. (Compl. at 2.) In June 2013, Son was
sentenced by the Juvenile Court to attend an overnight school for nine months,
which further harmed Son’s academic potential and opportunities, and prevented
him from having “a fair chance to gain the needed credits towards achieving a high
school [d]iploma in a timely manner.” (Compl. at 2.) Ms. Abrams asserts, in the
Complaint, that there was corruption and a lack of concern for what was best for
Son’s future. (Compl. at 2.)


      As a result of the actions described above, Son failed all of his high school
classes and could not receive a high school diploma. (Compl. at 2.) Son, who
turned eighteen in July 2014, was forced to find work without training or skills,
which he had hoped to obtain by attending a vocational school. (Compl. at 2.)
Additionally, Son suffers “emotional distress upon having to provide for himself
and trying to gain academic status to qualify for college.” (Compl. at 2.) “The
Juvenile Justice System and the School District of Philadelphia [(School District)].
. . ha[ve] created, presented and forced a false illusion of betterment to [Son] and
has failed him in assistance as well as corrupted his achievements as an
adolescent.” (Compl. at 2.) Ms. Abrams sought $30,000 in punitive damages from
the Juvenile Court for negligence, compensation in the amount of $50,000 for
malicious prosecution and “for redirecting [Son’s] professional outlook,” and
$20,000 for aggravated assault with deadly weapons, excessive force, and the
inability of Son to reside in public housing. (Compl. at 2-3.)



                                          3
       Thereafter, Ms. Abrams filed a Motion to File an Amended Complaint
(Motion to Amend) and a Motion to Add an Additional Defendant (Motion to Add
Defendant; together, Motions). The Motions sought to add claims against the
School District to the Complaint and to add the School District as a defendant.3


       The Juvenile Court filed POs in the nature of a demurrer, asserting that the
Complaint did not state a claim upon which relief could be granted because: (1)
Ms. Abrams’ claims were barred by sovereign immunity because it was a
Commonwealth entity; and (2) those claims were also barred under the doctrine of
judicial immunity. (POs ¶¶ 6-8.) The trial court concluded that the Juvenile Court
was entitled to sovereign immunity under the Act and that no exception to that
immunity existed in these circumstances. Accordingly, the trial court sustained the
Juvenile Court’s POs in that regard and dismissed the Complaint with prejudice.
By separate orders dated November 4, 2014, the trial court also denied Ms.
Abrams’ Motions as moot because it had dismissed the Complaint based on the
Juvenile Court’s POs.




       3
         The allegations asserted in the Motions were unrelated to those in the Complaint. Ms.
Abrams averred that the School District harmed Son’s academic interests and caused Son
emotional distress by having insufficient teachers and resources at the middle school where Son
attended in the 2011-2012 school year. (Motions.) This, according to the Motion to Amend,
resulted in higher suspension rates for the students that attended this school, including Son,
leaving those students discouraged and reducing their interest in their education. (Motion to
Amend.)



                                              4
       Ms. Abrams filed a motion for reconsideration and an appeal.4 The trial
court directed her to file a Concise Statement of Errors Complained of on Appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (Statement). Ms.
Abrams filed a timely Statement which, essentially, reiterated the Complaint’s
allegations and asserted new allegations. Specifically, Ms. Abrams contended that
the trial court “failed [Son] in the nature of custody and control” because:

       1. The defendant failed to acknowledge the status of the Plaintiff
       (minor) witness[.]

       2. The defendant subjected the Plaintiff to danger[.]

       3. The Plaintiff’s parental rights and the right’s [sic] to the 8 th
       amendment to the constitution were violated.

       4. Plaintiff suffers loss of Educational support of the School District
       of Philadelphia[.]

       5. The Plaintiff suffers from a[n] economic setback which includes
       loss of present and future earnings due to lack of educational
       achievement inflicted by the defendant.

       6. The defendant has performed actions which reflects [sic] exceptions
       to Sovereign Immunity as Plaintiff’s [sic] have stated in their
       [C]omplaint.

(Statement at “Cause of Action.”) Ms. Abrams further asserted that Son was in the
care and control of, inter alia, the Juvenile Court, seemingly invoking the personal
property exception to sovereign immunity found at Section 8522(b)(3) of the Act.
(Statement at “Cruel and Unusual Punishment”; see also Motion for

       4
          When she filed her appeal with this Court, Ms. Abrams was not specific as to which of
the trial court’s November 4, 2014 orders she was appealing. By order dated March 30, 2015,
this Court indicated that we would consider the appeal as being taken from the Order sustaining
the Juvenile Court’s POs and dismissing the Complaint.

                                              5
Reconsideration at 1.) In its opinion pursuant to Rule 1925(a), the trial court held
that the Juvenile Court was a Commonwealth agency entitled to sovereign
immunity and that the exception to sovereign immunity Ms. Abrams relied upon,
the personal property exception, did not apply because Son is not personal
property. (Trial Ct. Op. at 3.) This matter is now ready for this Court’s review.5


       Ms. Abrams appears to argue that the trial court erred in concluding that the
Juvenile Court was entitled to immunity because: (1) she considered her underage
Son to be her belonging and personal property of which the Juvenile Court took
responsibility in 2012; and (2) the Juvenile Court is not immune because the judge
could not have been acting within the judge’s judicial capacity or within the
Juvenile Court’s jurisdiction because the warrant unit used excessive force and did
not comply with the principles of due process.6 Ms. Abrams also contends, as she
did in her Statement, that she has set forth a claim for negligence under, inter alia,
the No Child Left Behind Act of 20017 (NCLB Act) because Son was making


       5
          The “standard of review for preliminary objections is well settled. We must accept all
material facts set forth in the complaint as well as all the inferences reasonably deducible
therefrom as true.” Powell v. Drumheller, 653 A.2d 619, 621 (Pa. 1995). “The question
presented by a demurrer is whether, on the facts averred, the law says with certainty that no
recovery is possible.” Id. “Where a doubt exists as to whether a demurrer should be sustained,
this doubt should be resolved in favor of overruling it.” Id. Although sovereign immunity is
characterized as an affirmative defense that is properly raised as new matter, it also may be
raised in POs where the defense is apparent from the face of the pleadings. State Workmen’s
Insurance Fund v. Caparo Real Estate, Inc., 635 A.2d 705, 706 n.2 (Pa. Cmwlth. 1993).

       6
          We discern Ms. Abrams’ arguments pertaining to judicial immunity based on the circled
passages from the copies of the United States Supreme Court decisions Ms. Abrams has included
in her brief.

       7
           20 U.S.C. §§ 6301-7941.

                                               6
educational progress before being sentenced to the overnight school by the
Juvenile Court. Ms. Abrams asserts that her claims have merit and should go
forward so that she and Son have the opportunity to present evidence on how they
have suffered from Son’s prosecution for a crime he did not commit.8


       The Juvenile Court responds that Son is not Ms. Abrams’ personal property
and, therefore, the personal property exception to sovereign immunity is
inapplicable. Alternatively, the Juvenile Court asserts, as it did in its POs, that it is
entitled to judicial immunity and that the Juvenile Court judge in this matter was
acting in the judge’s capacity. The Juvenile Court maintains that the judge acted
within the Juvenile Court’s jurisdiction when the judge directed that a warrant be
issued based on Son’s nonappearance at the December 2011 hearing and sentenced
Son to an overnight school for nine months.


       We first consider whether the Juvenile Court is entitled to sovereign
immunity. Section 102 of the Judicial Code defines “Commonwealth government”
as “including the courts and other officers or agencies of the [U]nified [J]udicial
[S]ystem.”      42 Pa. C.S. § 102.           Pursuant to Article V, Section 1 of the
Pennsylvania Constitution, the Unified Judicial System includes, inter alia, “courts
of common pleas.” Pa. Const. art. V, § 1. Thus, the Juvenile Court, which is a part



       8
          We note that Ms. Abrams appears to aver additional facts and raise additional claims in
her brief filed in this Court. To the extent that such claims were not asserted in the Complaint or
filings in the trial court, we will not consider them in this appeal. See Pennsylvania Rule of
Appellate Procedure 302(a), Pa. R.A.P. 302(a) (stating that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal”).

                                                7
of the court of common pleas, is included in the definition of “Commonwealth
government.”


      Section 8521(a) of the Act states: “[e]xcept as otherwise provided in [the
Act], no provision of this title [(the Judicial Code)] shall constitute a waiver of
sovereign immunity for the purpose of 1 Pa. C.S. § 2310 (relating to sovereign
immunity reaffirmed; specific waiver) or otherwise.”        42 Pa. C.S. § 8521(a).
Section 8522 of the Act outlines where the General Assembly has waived this
immunity and states, in relevant part:

             (a) Liability imposed. -- The General Assembly, pursuant to
      section 11 of Article I of the Constitution of Pennsylvania, does
      hereby waive, in the instances set forth in subsection (b) only and only
      to the extent set forth in this subchapter and within the limits set forth
      in section 8528 (relating to limitations on damages), sovereign
      immunity as a bar to an action against Commonwealth parties, for
      damages arising out of a negligent act where the damages would be
      recoverable under the common law or a statute creating a cause of
      action if the injury were caused by a person not having available the
      defense of sovereign immunity.

42 Pa. C.S. § 8522(a). Thus, pursuant to Section 8522(a) of the Act, in order to
recover against the Juvenile Court, Ms. Abrams had to prove: “(1) that damages
would be recoverable for negligence under a common law theory of negligence or
based on statute against a person not having available the defense of sovereign
immunity; and (2) that the requirements for one of the exceptions . . . in subsection
(b) have been satisfied.”     Morewood Point Community Association v. Port
Authority of Allegheny County, 993 A.2d 323, 328 (Pa. Cmwlth. 2010). There are




                                          8
nine exceptions set forth in Section 8522(b),9 and we are required to interpret these
exceptions to sovereign immunity strictly. Jones v. Southeastern Pennsylvania
Transportation Authority, 772 A.2d 435, 440 (Pa. 2001). Absent the existence of
one of these exceptions, liability may not be imposed against the Commonwealth
or one of its entities. Id.


       Here, Ms. Abrams appears to rely on the personal property exception to
sovereign immunity in subsection (b)(3), which provides, in relevant part:

              (b) Acts which may impose liability. --The following acts by a
       Commonwealth party may result in the imposition of liability on the
       Commonwealth and the defense of sovereign immunity shall not be
       raised to claims for damages caused by:
                                           ...
              (3) Care, custody, or control of personal property. -- The
       care, custody or control of personal property in the possession or
       control of Commonwealth parties, including Commonwealth-owned
       personal property and property of persons held by a Commonwealth
       agency . . . .

42 Pa. C.S. § 8522(b)(3). However, like the trial court, we do not find merit in Ms.
Abrams’ assertion that Son was her personal property that was injured while in the
care, custody, and control of the Juvenile Court.


       Son is a person, not personal property, which is defined as “[a]ny movable
or intangible thing that is subject to ownership and not classified as real property.”

       9
          The nine exceptions under which sovereign immunity is waived are categorized as: (1)
vehicle liability; (2) medical-professional liability; (3) care, custody, or control of personal
property; (4) dangerous conditions of Commonwealth real estate, highways, and sidewalks; (5)
potholes and other dangerous conditions; (6) care, custody, or control of animals; (7) liquor store
sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. C.S. § 8522(b).

                                                9
Black’s Law Dictionary 1337 (9th Ed. 2004).                   In Gallagher v. Bureau of
Correction, 545 A.2d 981, 984 (Pa. Cmwlth. 1988), an inmate at a state
correctional institute argued “that he was in the custody and control of the
Commonwealth by virtue of his status as a prisoner, thereby making himself the
personal property of the Commonwealth.” We rejected the inmate’s argument in
Gallagher, and we similarly reject Ms. Abrams’ assertion in the present matter.
Therefore, we hold that the trial court did not err in concluding that the personal
property exception to sovereign immunity does not apply here or in sustaining the
Juvenile Court’s POs in that regard.10


       Based on the allegations Ms. Abrams asserts in the Complaint, we
understand why she has brought these claims and sympathize with her and Son for
the disruption in their lives that they believe was not deserved. However, the law
does not provide a remedy for every perceived wrong and, as discussed above, the
law does not allow the remedy Ms. Abrams requests in the present matter.


       Accordingly, we affirm the trial court’s Order.



                                               ________________________________
                                               RENÉE COHN JUBELIRER, Judge


       10
          We observe, as the trial court did in its opinion, that the NCLB Act does not provide a
private cause of action for alleged violations of its provisions. Horne v. Flores, 557 U.S. 433,
456 n.6 (2009). Furthermore, because we conclude that the Juvenile Court is entitled to
sovereign immunity under the Act, it is not necessary to address the Juvenile Court’s alternate
assertion that it is entitled to absolute judicial immunity and Ms. Abrams’ assertions that such
immunity is inapplicable.

                                               10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Sherese Abrams,                       :
                                      :
                        Appellant     :
                                      :
            v.                        :   No. 2167 C.D. 2014
                                      :
The Juvenile Justice Department       :



                                    ORDER

      NOW, September 3, 2015, the Order of the Court of Common Pleas of
Philadelphia County, entered in the above-captioned matter, is hereby
AFFIRMED.


                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
