            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly Hinnershitz and Manuel                :
Torres-Columbo,                             :
                        Petitioners         :
                                            :
             v.                             :   No. 1977 C.D. 2014
                                            :   Submitted: June 19, 2015
Department of Public Welfare,               :
                       Respondent           :


BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: August 12, 2015

             Petitioners Kelly Hinnershitz and Manuel Torres-Columbo, pro se,
petition for review of an order of the Department of Public Welfare1 (DPW),
Bureau of Hearings and Appeals (BHA), dated September 29, 2014. The BHA’s
order denied Petitioners’ appeal of Berks County Children & Youth Services’
(CYS) denial of Petitioners’ application to become kinship care foster parents for
their granddaughter, B.M. For the reasons set forth below, we now affirm.




      1
       The General Assembly recently redesignated the Department of Public Welfare as the
Department of Human Services. Section 103 of the Act of June 13, 1967, added by the Act of
September 24, 2014, P.L. 2458.
            Petitioners are paramours who have lived together since 1993.
Petitioners’ grandson, E.M., and their daughter, V.T., both live with Petitioners.
Petitioners applied to become kinship care foster parents for their granddaughter,
B.M., on October 11, 2013. (Certified Record (C.R.), at 29.) CYS conducted
home studies on October 13, 2013, November 8, 2013, November 27, 2013, and
December 13, 2013. (Id. at 17.) CYS also required Mr. Torres-Columbo to
undergo a psychological evaluation.          A CYS family resource coordinator,
Samantha Zerr, recommended that CYS deny Petitioners’ application, because
Mr. Torres-Columbo      had    been    aggressive      toward      CYS    employees,
Mr. Torres-Columbo’s psychological evaluation indicated that he should seek
anger   management     counseling,    and     Petitioners   were   untruthful   about
Mr. Torres-Columbo’s smoking and criminal history on their application. (Id. at
23.)    CYS denied Petitioners’ application, and Petitioners appealed.            An
administrative law judge (ALJ) conducted a hearing for the BHA.
            At the hearing before the ALJ, CYS presented the testimony of
Ms. Zerr, Amanda Wargo, and Arthur Hamarich.                Petitioners presented the
testimony of Donna Morganti and Manuel Torres-Columbo. Ms. Zerr testified that
she was the resource family coordinator that CYS assigned to work with
Petitioners throughout the kinship care foster parent application process. (Notes of
Testimony (N.T.), 7/22/14, at 30-31.) She testified that Petitioners’ application
was missing information concerning Petitioners’ consumption of alcohol. (Id. at
31.)    The application also contained untruthful information.           Specifically,
Petitioners indicated that Mr. Torres-Columbo had never been arrested or
convicted of a crime, but Mr. Torres-Columbo’s criminal history report showed
that he had been arrested for simple assault and convicted of public drunkenness.


                                         2
(Id. at 32-33, 50.)    Petitioners further provided that there had never been a
protection from abuse order (PFA) filed against them. (Id. at 33-34.) Ms. Zerr
discovered, however, that B.M.’s father, A.L., had filed an emergency temporary
PFA against Mr. Torres-Columbo. (Id. at 34.) Further, Petitioners indicated that
they did not smoke, but Ms. Zerr observed Mr. Torres-Columbo smoking. (Id. at
35.)
            Ms.       Zerr   testified   that   she      was    concerned    about
Mr. Torres-Columbo’s mental state after she received the psychological evaluation
completed by Mr. Hamarich, which indicated that Mr. Torres-Columbo would
benefit from anger management counseling and “could improve on how he
cooperates with [CYS] staff.”      (Id. at 41-42.)    There was no indication that
Mr. Torres-Columbo complied with Mr. Hamarich’s recommendations. (Id. at 65.)
Further, Mr. Torres-Columbo was aggressive and argumentative during his
interactions with Ms. Zerr. (Id. at 43.) She felt that Mr. Torres-Columbo was
attempting to intimidate her, and she became anxious about visiting Petitioners’
home for home studies and meetings. (Id. at 44.) Mr. Torres-Columbo called CYS
multiple times a day and would come to the office without an appointment,
demanding to see a CYS employee if he did not receive an answer on the phone.
(Id.) In one instance, Mr. Torres-Columbo saw Ms. Zerr across the street and
“began yelling, saying hi, Ms. Zerr, I know you saw me, why are you ignoring
me?” (Id. at 48.) This behavior made Ms. Zerr uncomfortable. (Id. at 49.)
            Ms. Zerr also indicated that Mr. Torres-Columbo had been involved in
a physical altercation with A.L. (B.M.’s father), during which A.L. sustained
injuries requiring hospitalization. (Id. at 56.) Mr. Torres-Columbo initiated the
altercation. (Id.) A.L. requested the PFA against Mr. Torres-Columbo as a result


                                         3
of this altercation. (Id. at 57.) Mr. Torres-Columbo subsequently sought a PFA
against A.L. (Id. at 58.) The charges against Mr. Torres-Columbo which resulted
from the altercation were ultimately dismissed. (Id. at 60.) Ms. Zerr explained
that the police had also responded to Petitioners’ home to investigate a domestic
dispute between Mr. Torres-Columbo and Ms. Hinnershitz. (Id. at 93-94.) With
respect to Ms. Hinnershitz, Ms. Zerr testified that she had observed E.M. fail to
respond to Ms. Hinnershitz’s direction, and Mr. Torres-Columbo had to intervene.
(Id. at 103.)
                Ms. Wargo testified that she is employed by CYS as a kinship unit
supervisor. (Id. at 111.) As part of her job duties, she supervised Ms. Zerr and
reviewed Ms. Zerr’s cases. (Id. at 126.) She stated that Ms. Zerr was not easily
intimidated. (Id. at 134.) Ms. Wargo testified that during visitation with B.M.,
Petitioners had difficulty dividing their time between E.M. and B.M. (Id. at 116.)
Further, during a meeting with Ms. Zerr and Petitioners, Ms. Wargo observed
Mr. Torres-Columbo become agitated and argumentative. (Id. at 118.) Ms. Wargo
also expressed concern about domestic violence in Petitioners’ home. (Id. at
126-27.) Ms. Wargo testified that Ms. Hinnershitz has a tumultuous relationship
with A.L., and that A.L. allegedly has an addiction to drugs and alcohol. (Id. at
131-32.) She did not believe that A.L. would agree with placing B.M. with
Petitioners. (Id. at 133.)
                Mr. Hamarich testified that he is a licensed psychologist. (Id. at 144.)
Mr. Hamarich performed the psychological evaluation of Mr. Torres-Columbo and
recommended that Mr. Torres-Columbo should see a psychiatrist on a monthly
basis. (Id. at 145.) He further recommended that Mr. Torres-Columbo increase his
visits with his counselor from once a month to twice a month at a minimum. (Id. at


                                            4
146.) Mr. Hamarich explained that Mr. Torres-Columbo “was caught up in a very
nonproductive pattern of arguing, fighting and feeling inept.” (Id. at 146.) He
believed that increased counseling would help Mr. Torres-Columbo become less
defensive.   (Id.)   Mr. Hamarich did not believe that Mr. Torres-Columbo’s
altercation with A.L. indicated a lifelong problem with anger management. (Id. at
151.)   Mr. Torres-Columbo denied drug or alcohol abuse, but he did smoke
cigarettes. (Id. at 155, 158-59.)   Mr. Torres-Columbo explained that his public
drunkenness conviction was the result of an adverse reaction to prescription drugs,
rather than intoxication.    (Id. at 160.)   Mr. Hamarich did not believe that
Mr. Torres-Columbo presented a risk to children or that Mr. Torres-Columbo was
violent towards Ms. Hinnershitz. (Id. at 161, 166.) Mr. Hamarich explained,
however, that Mr. Torres-Columbo did have problems interacting with CYS, and
that he should learn “to settle down and not respond as aggressively.” (Id. at 162.)
             Ms. Morganti testified that she is Ms. Hinnershitz’s sister and that she
has known Mr. Torres-Columbo for fifteen or twenty years. (Id. at 185.) She
attended meetings with Petitioners and CYS on several occasions.                (Id.)
Ms. Morganti explained that Jacqueline Carpenter and Amy Shimmerhorn, CYS
employees who are not a part of the kinship unit, did not answer Petitioners’
questions concerning visitation with B.M. (Id. at 190-91.) Ms. Morganti testified
that Ms. Carpenter slammed the door and became agitated when Ms. Morganti
insisted on accompanying Ms. Hinnershitz and B.M.’s mother, T.M., to a meeting.
(Id. at 199-200.)    Ms. Morganti believed that B.M. should be placed with
Petitioners, because B.M. “should be with family.” (Id. at 207.)
             Mr. Torres-Columbo testified that he is unemployed because he is
disabled due to depression and post-traumatic stress disorder (PTSD). (Id. at


                                         5
234-35.) Mr. Torres-Columbo was psychiatrically hospitalized prior to 2005, and
he currently takes medications for his disorders. (Id. at 237-38.) He explained that
he rarely drinks alcohol and that he did not see the question concerning alcohol use
on the application. (Id. at 239.) Mr. Torres-Columbo testified that he is currently
unable to return to work due to his depression and PTSD, but he is pursuing a
GED. (Id. at 246.)
             Mr. Torres-Columbo testified that prior to his altercation with A.L., he
had asked A.L. to leave Petitioners’ home. (Id. at 250.) The altercation that
resulted was the only physical altercation that occurred between A.L. and
Mr. Torres-Columbo. (Id.) Mr. Torres-Columbo argued with A.L. about A.L.’s
abuse of drugs and alcohol. (Id. at 250.) Petitioners have tried to secure help for
A.L.’s addiction problems, and A.L. has lived with them twelve times. (Id. at
251.)    A.L. and Mr. Torres-Columbo have resolved their differences, and
Mr. Torres-Columbo regrets his actions. (Id. at 262.) Mr. Torres-Columbo would
permit A.L. to live in Petitioners’ home if A.L. is able to end his drug and alcohol
addictions and if A.L.’s presence did not negatively affect the children. (Id. at
263.) Mr. Torres-Columbo denied that his disputes with Ms. Hinnershitz became
violent. (Id. at 253.)
             Mr. Torres-Columbo explained that E.M. has autism, which causes
behavioral problems such as aggression. (Id. at 255.) Due to his autism, E.M.
requires a lot of attention from Petitioners. (Id. at 256.) E.M. has appointments
with various specialists five days a week.          (Id. at 258.)    E.M. receives
developmental medication, special education, and counseling services.         (Id. at
256.) V.T. attends public school, a decision with which Mr. Torres-Columbo
disagrees. (Id. at 265.)


                                         6
              After considering the DPW’s regulations2 concerning the approval of
applicants as foster parents, the ALJ recommended that the DPW deny Petitioners’
appeal:


       2
         55 Pa. Code § 3700.64 requires CYS to assess an applicant’s capability as a foster
parent using the following factors:
              (a) The [Foster Family Care Agency (FFCA)] shall consider the
              following when assessing the ability of applicants for approval as
              foster parents:
                     (1) The ability to provide care, nurturing and supervision to
                     children.
                     (2) A demonstrated stable mental and emotional
                     adjustment. If there is a question regarding the mental or
                     emotional stability of a family member which might have a
                     negative effect on a foster child, the FFCA shall require a
                     psychological evaluation of that person before approving
                     the foster family home.
                     (3) Supportive community ties with family, friends and
                     neighbors.
              (b) In making a determination in relation to subsection (a) the
              FFCA shall consider:
                     (1) Existing family relationships, attitudes and expectations
                     regarding the applicant’s own children and parent/child
                     relationships, especially as they might affect a foster child.
                     (2) Ability of the applicant to accept a foster child’s
                     relationship with his own parents.
                     (3) The applicant’s ability to care for children with special
                     needs, such as physical handicaps and emotional
                     disturbances.
                     (4) Number and characteristics of foster children best suited
                     to the foster family.
                     (5) Ability of the applicant to work in partnership with an
                     FFCA.



                                               7
               The hearing record reflects that . . . [Petitioners] are not
               capable of providing care for additional relatives or foster
               children that might be placed in their home. The record
               demonstrates that . . . [Petitioners] may have the will but
               not the ability to provide a safe, healthy, nurturing and
               supervised environment for relatives and foster children;
               that they do not have the proven ability to work in
               partnership with . . . [CYS]; that they have a somewhat
               toxic, volatile, fragile and estranged relationship with
               Ms. Hinnershitz’[s] son A.L., which would certainly
               complicate the placement of any of A.L.’s children, or
               any other child placed in . . . [Petitioners’] home; and that
               Mr. Torres-Columbo has not demonstrated stable mental
               and emotional adjustment, among other concerns noted
               above.
(ALJ Op. at 16.) The ALJ further determined that CYS had not shown that
Petitioners were incapable of taking care of a special needs child, nor had it shown
that Petitioners lacked support from friends and family. Considering the evidence
as a whole, the ALJ concluded that CYS properly denied Petitioners’ application to
become kinship care foster parents. The DPW adopted the ALJ’s recommendation
on September 29, 2014.3 Petitioners petitioned this Court for review.



       3
          Petitioners filed an application for reconsideration with the DPW on October 7, 2014.
The date of Petitioners’ appeal to this Court was October 24, 2014. On October 30, 2014, the
DPW granted Petitioners’ application for reconsideration and remanded the matter to the ALJ.
The ALJ issued a revised opinion on December 4, 2014. When a petitioner files both a petition
for review with this Court and an application for reconsideration with the agency, this Court has
jurisdiction if the agency does not expressly grant reconsideration within thirty days of the filing
of the final order. Pa. R.A.P. 1701(b)(3)(ii); 1 Pa. Code § 35.241(e)-(f). Here, the DPW did not
grant reconsideration until October 30, 2014, more than thirty days after the issuance of the final
order. Because the DPW did not timely grant the application for reconsideration, the application
is deemed denied. See 1 Pa. Code § 35.241(e)-(f). Accordingly, the only opinion which we may
consider is the opinion issued on September 29, 2014. In their petition for review and brief,
Petitioners specifically challenge the September 29, 2014 opinion and order.



                                                 8
                On appeal,4 Petitioners argue that the ALJ erred in admitting
irrelevant evidence, substantial evidence did not exist to show that Petitioners were
untruthful on their application, substantial evidence did not exist to show that
Petitioners were incapable of caring for a special needs child, substantial evidence
did not exist to show that Mr. Torres-Columbo did not demonstrate stable mental
and emotional adjustment, substantial evidence did not exist to show that
Petitioners were incapable of working with CYS, and that the ALJ erred in failing
to consider Petitioners’ brief.
                We first address Petitioners’ argument that the ALJ erred in admitting
irrelevant evidence. Specifically, Petitioners take issue with the admission of
evidence concerning Mr. Torres-Columbo’s criminal history as well as the
admission        of    evidence     that   a   temporary     PFA      was     filed   against
Mr. Torres-Columbo. Petitioners argue that the evidence of Mr. Torres-Columbo’s
criminal history is irrelevant, because he was not convicted of a crime that would
disqualify him from fostering children under 23 Pa. C.S. § 6344.5 Petitioners
further contend that the PFA is irrelevant because it was ultimately dismissed.
                The Administrative Agency Law6 provides:                    “Commonwealth
agencies shall not be bound by technical rules of evidence at agency hearings, and

       4
         “Our scope of review is limited to determining whether constitutional rights have been
violated, whether the adjudication is in accordance with the law and whether the necessary
findings of fact are supported by substantial evidence.” J.M. v. Dep’t of Pub. Welfare, 52 A.3d
552, 554 n.6 (Pa. Cmwlth. 2012).
       5
          23 Pa. C.S. § 6344(c) provides a list of criminal convictions that automatically
disqualify an applicant, including, inter alia, criminal homicide, kidnapping, rape, and sexual
abuse of children.
       6
           2 Pa. C.S. §§ 501-08, 701-04.



                                               9
all relevant evidence of reasonably probative value may be received.” 2 Pa. C.S.
§ 505. “Relevant evidence is that which tends to make a fact at issue more or less
probable.” Agresta v. Gillespie, 631 A.2d 772, 779 (Pa. Cmwlth. 1993), overruled
in unrelated part by City of Phila. Police Dep’t v. Gray, 633 A.2d 1090 (Pa. 1993).
Here, the ALJ did not admit the evidence of Mr. Torres-Columbo’s criminal
history and PFA to show that he should be automatically disqualified as an
applicant based on past convictions, that he had a propensity for violence, or that
he had a drinking problem. Rather, the evidence was admitted to show that
Petitioners were untruthful on their application when they responded that Mr.
Torres-Columbo had no criminal history and that a PFA was never filed against
him. The evidence was also admitted to demonstrate the strained relationship
between Petitioners and A.L.          In this respect, the evidence was relevant and
admissible. Accordingly, we reject Petitioners’ argument that the ALJ erred in
admitting irrelevant evidence.
              Petitioners next argue that substantial evidence7 does not exist to show
that Petitioners were untruthful on their application. Specifically, Petitioners take
issue with the ALJ’s determination that Petitioners were untruthful concerning
whether Mr. Torres-Columbo was a smoker, whether he had been arrested in the
past, and whether a PFA had ever been filed against him.
              Petitioners    argue    that    they   were     truthful   with    respect    to
Mr. Torres-Columbo’s smoking habits, as he did not smoke at the time he filled
out the application. They contend that he began smoking several months after

       7
        “‘Substantial evidence’ has long been defined as such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Mihok v. Dep’t of Pub. Welfare,
580 A.2d 905, 909 (Pa. Cmwlth. 1990).



                                              10
filling out the application.    Ms. Zerr, however, testified that she observed
Mr. Torres-Columbo smoking in December 2013.            (N.T., 7/22/14, at 83-84.)
Mr. Hamarich’s report in December 2013 indicated that, after a heart attack in
June 2013, Mr. Torres-Columbo “continues to smoke knowing full well that he has
been instructed by his physician with all seriousness that he should stop smoking.”
(C.R. at 58, N.T., 7/22/14, at 159.) Ms. Zerr and Mr. Hamarich’s testimony
constitutes substantial evidence to conclude that Mr. Torres-Columbo was a
smoker, and, therefore, that Petitioners were untruthful on the application.
Accordingly, we reject Petitioners’ argument that they were truthful with respect to
Mr. Torres-Columbo’s smoking habits.
            Petitioners next contend that they were truthful with respect to
Mr. Torres-Columbo’s arrest history.      They argue that Mr. Torres-Columbo
answered that he had never been arrested based on his understanding of the word
“arrest.” The criminal history report concerning Mr. Torres-Columbo, however,
indicates that he was arrested on September 4, 2010, for simple assault. (C.R. at
66, 79.)   This constitutes substantial evidence that Mr. Torres-Columbo was
arrested, and, therefore, Petitioners were untruthful on their application.
Accordingly, we reject Petitioners’ argument that they were truthful regarding
Mr. Torres-Columbo’s arrest history.
            Petitioners also argue that they were truthful concerning the PFA filed
against Mr. Torres-Columbo. Specifically, they contend that although a temporary
PFA had been filed against Mr. Torres-Columbo, the PFA never became final and
the related criminal charges against him were ultimately dismissed. Petitioners
admit that a temporary PFA was filed against Mr. Torres-Columbo, and the PFA is
in the record. (Pet’r’s Br. at 18, C.R. at 85-101.) Despite Petitioners’ assertions


                                        11
that the PFA was temporary, the application did not specify that applicants must
only disclose final PFAs. (C.R. at 27.) Rather, the application sought disclosure of
all PFAs, whether temporary or final.              Petitioners’ admission and the PFA
constitute substantial evidence that Mr. Torres-Columbo had a PFA filed against
him, and, therefore, Petitioners were untruthful on their application. Accordingly,
we reject Petitioners’ argument that they were truthful regarding the PFA filed
against Mr. Torres-Columbo.
              Petitioners next argue that substantial evidence does not exist to show
that Petitioners could not take care of a child with special needs. Within this
argument, Petitioners also contend that the ALJ ignored evidence that Petitioners
were already taking care of a child with special needs. The ALJ, however, did not
conclude that Petitioners could not take care of a special needs child. Rather, the
ALJ determined:
              [A]lthough . . . [CYS] did not show that . . . [Petitioners]
              could not handle a child placed in their home who had
              special needs since they already care for a special needs
              child, E.M., what is significant to note is that the one
              special needs child currently in their home, E.M.,
              requires quite a bit of time and attention to care for and
              has multiple appointments, almost on a daily basis. It is
              highly unlikely that . . . [Petitioners] would be able to
              handle another special needs child placed in their home,
              along with Mr. Torres-Columbo’s 14-year old.
(ALJ Op. at 14 (emphasis added).)              The ALJ, therefore, did not find that
Petitioners were incapable of caring for a special needs child.8                 Rather, she
reiterated her finding that Petitioners would be unable to care for an additional

       8
        There is no indication that B.M. has any “special needs, such as physical handicaps and
emotional disturbances.” 55 Pa. Code § 3700.64(b)(3).



                                              12
child.9 This finding is supported by Mr. Torres-Columbo’s testimony concerning
Petitioners’ exhaustive care of E.M., as well as Ms. Zerr’s testimony that
Ms. Hinnershitz had difficulty in getting E.M. to comply with her instructions.
(N.T., 7/22/14, at 104-05, 255-59.) Accordingly, we reject Petitioners’ argument
concerning their ability to care for a child with special needs.
               Petitioners next contend that substantial evidence did not exist to
show that Mr. Torres-Columbo did not demonstrate stable mental and emotional
adjustment. Petitioners cite Mr. Hamarich’s report and claim that Mr. Hamarich
did not believe that Mr. Torres-Columbo was a threat to children or that he was
aggressive. Despite Petitioners’ contentions, substantial evidence existed for the
ALJ to find that Mr. Torres-Columbo did not exhibit mental and emotional
stability. Mr. Torres-Columbo testified that he suffers from depression and PTSD,
which are severe enough to prevent him from working. (Id. at 234-35, 246.)
Mr. Hamarich recommended that Mr. Torres-Columbo seek further treatment. (Id.
at 145-46.) Petitioners presented no admissible evidence that Mr. Torres-Columbo
complied with Mr. Hamarich’s recommendation.10 Further, Ms. Zerr testified that


       9
           Petitioners assert that the ALJ improperly stated that her opinion applied to B.M. and
“any other relative or foster child that might be placed in their home.” (ALJ Op. at 13.) Again,
the ALJ was reiterating her finding that Petitioners are incapable of caring for an additional child
at this time. The ALJ did not preclude Petitioners from applying to become foster parents in the
future. We, therefore, reject Petitioners’ argument concerning the applicability of the ALJ’s
opinion to future foster care applications.
       10
          Petitioners sought to admit into evidence several letters from Mr. Torres-Columbo’s
counselors to show that Mr. Torres-Columbo was compliant with Mr. Hamarich’s
recommendations. These documents were excluded as hearsay. (N.T., 7/22/14, at 279.)
Petitioners contend that these documents should have been admitted. Hearsay is defined as “an
out-of-court statement offered to prove the truth of the matter asserted.” Six L’s Packing Co. v.
Workers’ Comp. Appeal Bd. (Williamson), 2 A.3d 1268, 1275 (Pa. Cmwlth. 2010), aff’d, 44 A.3d
(Footnote continued on next page…)

                                                13
Mr. Torres-Columbo’s behavior towards CYS employees was aggressive. (Id. at
43-49.) Accordingly, we reject Petitioners’ argument that substantial evidence did
not exist to show that Mr. Torres-Columbo did not demonstrate stable mental and
emotional adjustment.
             Petitioners next contend that substantial evidence did not exist to
show that Petitioners were not able to work in partnership with CYS. Specifically,
Petitioners argue that if Ms. Zerr felt intimidated, she could have brought a
co-worker to home studies with Petitioners. Substantial evidence exists to show
that Petitioners were unable to work in partnership with CYS. Ms. Zerr testified
that she was intimidated by Petitioners’ aggressive behavior, even though she
continued to meet with Petitioners alone.          (Id.)   The ALJ determined that
Ms. Zerr’s testimony was credible. Further, the ALJ provided additional reasons
for finding that Petitioners were incapable of working with CYS. Specifically, the
ALJ explained that she considered Petitioners’ failure to truthfully complete the
application and Mr. Torres-Columbo’s failure to comply with Mr. Hamarich’s
recommendations in rendering her finding. Accordingly, we reject Petitioners’
argument that substantial evidence did not exist to show that Petitioners were
incapable of working in partnership with CYS.




(continued…)

1148 (Pa. 2012). Mr. Torres-Columbo’s counselors did not testify before the ALJ, yet
Petitioners offered the letters as proof that Mr. Torres-Columbo was compliant with
Mr. Hamarich’s recommendations. Such evidence constitutes hearsay, which the ALJ was
permitted to exclude. Accordingly, we reject Petitioners’ argument that the letters from
Mr. Torres-Columbo’s counselors should have been admitted into evidence.



                                          14
             Petitioners last argue that the ALJ erred in failing to consider their
brief. Specifically, they contend that the ALJ did not consider their brief because it
was submitted on September 18, 2014, rather than September 17, 2014. Petitioners
assert that they attempted to fax their brief on September 17, but they were unable
to connect after several attempts. Pursuant to the Administrative Code, the ALJ
“shall fix the time for the filing and service of briefs.” 1 Pa. Code § 35.191.
“Briefs not filed and served on or before the dates fixed . . . may not be accepted
for filing.” 1 Pa. Code § 35.193. In the instant matter, the ALJ fixed the date for
the filing and service of briefs as September 17, 2014. Petitioners did not serve
their brief until September 18, 2014. Regardless of the reasons for Petitioners’
delay, the brief was still submitted untimely. The ALJ did not err in failing to
consider Petitioners’ untimely brief.
             Accordingly, we affirm the DPW’s order.




                                P. KEVIN BROBSON, Judge




                                         15
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly Hinnershitz and Manuel          :
Torres-Columbo,                       :
                        Petitioners   :
                                      :
            v.                        :   No. 1977 C.D. 2014
                                      :
Department of Public Welfare,         :
                       Respondent     :


                                  ORDER


            AND NOW, this 12th day of August, 2015, the order of the
Department of Public Welfare is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
