           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


B.W.,                                       :
                      Petitioner            :
                                            :   CASE SEALED
              v.                            :   No. 220 C.D. 2015
                                            :   Submitted: July 17, 2015
Department of Human Services,               :
                 Respondent                 :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                               FILED: November 23, 2015

              B.W. requests permission to appeal nunc pro tunc the order of the
Department of Human Services, Bureau of Hearings and Appeals1 that dismissed
his appeal of an indicated report that named him as a perpetrator of child abuse.
B.W. argues that he should be permitted to appeal because his former attorney
failed to inform him that the Department denied his request to have the indicated
report of abuse expunged from the ChildLine Registry. 2 For the reasons that
follow, we deny B.W.’s request.



1
  At the time the order was issued, the agency was known as the Department of Public Welfare.
Prior to the filing of the petition for review, the Department of Public Welfare became the
Department of Human Services. See Act of September 24, 2014, P.L. 2458, 62 P.S. §103
(effective November 24, 2014).
2
  ChildLine is a unit of the Department that operates a statewide toll free system for receiving
and maintaining reports of suspected child abuse, along with making referrals for investigation.
(Footnote continued on the next page . . .)
             On March 28, 2013, Cumberland County Children and Youth
Services (CYS) received a report that a female child, C.B. (Child), had been
abused by B.W., who was a friend of Child’s family. On May 23, 2013, CYS filed
an indicated report with the Department naming B.W. as a perpetrator of child
sexual abuse. The report stated that on August 8, 2006, when Child was nine years
old, B.W. digitally penetrated Child while he was babysitting her at his home.
Certified Record, Item No. 3, Exhibit C-2.         The CYS report found Child’s
statement of abuse credible and noted that B.W. refused to speak with CYS to
confirm or deny the allegations. After B.W. learned that he had been identified on
the ChildLine Registry as a perpetrator of sexual abuse, he requested a hearing
from the Department.
             On May 5, 2014, a hearing was held before an Administrative Law
Judge (ALJ).        Child testified about the abuse, as did her mother, a nurse
practitioner, a forensic examiner and a CYS intake supervisor. B.W., who was
present and represented by counsel, did not present rebuttal testimony.
             The ALJ issued a recommended adjudication. The ALJ found Child
and her witnesses credible and recommended that B.W.’s appeal be denied and the
indicated report be maintained on the ChildLine Registry.
             On July 31, 2014, the Department adopted the recommended
adjudication in its entirety. The Department’s order informed B.W. that he had 15
days to request reconsideration by the Secretary of the Department and 30 days
from the date of the order to appeal to this Court. Certified Record, Item No. 4.


(continued . . .)
55 Pa. Code §3490.4. The ChildLine Registry is maintained in accordance with the Child
Protective Services Law, 23 Pa. C.S. §§6301-6386.


                                          2
B.W. did not seek reconsideration from the Secretary or file a petition for review
with this Court.
                 On October 6, 2014, B.W. contacted the Department by letter stating,
inter alia, that he had heard nothing from his attorney about the status of his case.
B.W. requested various documents including a copy of the hearing transcript and
any brief that was submitted. B.W. Brief, Exhibit C.
                 On January 15, 2015, B.W. again contacted the Department by letter
listing what he referred to as “[r]easons for appeal or a new trial.” B.W. Brief,
Exhibit B at 2. B.W. asked the Department for a ruling on several evidentiary
issues.
                 On January 26, 2015, the ALJ mailed a letter to B.W.’s attorney
informing him of B.W.’s October 6, 2014, and January 15, 2015, letters to the
Department and stating that the Department had no jurisdiction over the matter
because no appeal was filed within 30 days of the Department’s July 31, 2014,
order. B.W. Brief, Exhibit B at 1.
                 On February 25, 2015, B.W., represented by new counsel, filed a
petition for review with this Court. CYS filed an application for intervention,
which this Court granted. This Court’s order of March 13, 2015, instructed the
parties to address in their briefs on the merits whether the ALJ’s January 26, 2015,
letter constitutes an agency adjudication from which an appeal may be taken.3
                 In his brief, B.W. specifies that he is not advancing an argument that
the January 26, 2015, letter should be considered an administrative adjudication.
B.W. Brief at 12. B.W. considers the letter as “merely a response to [his] inquiry.”


3
    The Department opted not to file a brief.


                                                3
B.W. Brief at 18. B.W. acknowledges that the Department’s July 31, 2014, order
was the final administrative adjudication and that he had 30 days to file a timely
appeal, a deadline that he missed. Nevertheless, B.W. argues that he is entitled to
an appeal nunc pro tunc because he lost his right to appeal the Department’s July
31, 2014, order due to extraordinary circumstances that were not his fault.
             Failure to timely appeal an administrative agency’s action is a
jurisdictional defect; therefore, the time for taking an appeal cannot be extended as
a matter of grace or mere indulgence. H.D. v. Department of Public Welfare, 751
A.2d 1216, 1219 (Pa. Cmwlth. 2000). However, an appeal nunc pro tunc may be
permitted if the delay in filing an appeal was caused by extraordinary
circumstances involving fraud or some breakdown in the administrative process, or
“non-negligent circumstances related to the appellant, his or her counsel or a third
party.” Id. (emphasis added). This Court has explained that “any delay caused by
mere negligence or neglect of an attorney in failing to appeal within the required
time period does not provide a basis for granting an appeal nunc pro tunc.” J.C. v.
Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998).
             B.W. explains that his prior attorney, who received the Department’s
adjudication, did not notify B.W. or file an appeal, despite the fact that B.W. had
previously indicated to his attorney that he wished to appeal should it become
necessary. B.W. characterizes his former attorney’s failure to communicate with
him or to file an appeal on his behalf as an “extraordinary circumstance”
warranting an appeal nunc pro tunc. B.W. argues that he should not lose his right
to appeal simply because he retained counsel rather than representing himself
during the proceedings before the Department, in which case B.W. would have
received a copy of the Department’s order.


                                         4
               CYS rejoins that there is no evidence to support any of B.W.’s
allegations about why an appeal was not filed. Even so, these allegations do not
constitute extraordinary circumstances to allow an appeal nunc pro tunc.
               Under the circumstances alleged by B.W., he is not entitled to appeal
the Department’s order nunc pro tunc. It is not sufficient to show that the failure to
file a timely appeal is not the appellant’s personal fault. The failure to file a timely
appeal must be due to non-negligent conduct by the appellant’s counsel. B.W. has
described conduct that was negligence on the part of his former counsel. That
situation, although unfortunate, does not justify allowing an appeal nunc pro tunc.
J.C., 720 A.2d at 197.4
               Nevertheless, B.W. is not without recourse. The Child Protective
Services Law was amended effective December 31, 2014, to provide another
avenue to challenge a listing on the ChildLine Registry “at any time.” The statute
now provides, in relevant part:

               At any time, the secretary may amend or expunge any record in
               the Statewide database under this chapter upon good cause
               shown and notice to the appropriate subjects of the report. The
               request shall be in writing in a manner prescribed by the
               department. For purposes of this paragraph, good cause shall
               include, but is not limited to, the following:
                      (i) Newly discovered evidence that an indicated
                      report of child abuse is inaccurate or is being
                      maintained in a manner inconsistent with this
                      chapter.


4
  In the alternative, B.W. requests a remand for a hearing regarding timeliness, so that he can
submit to the Department the information attached to his brief regarding his letters to his former
attorney and the Department about his case. No remand is warranted, because we have already
concluded that even taking B.W.’s allegations as true, he is not entitled to an appeal nunc pro
tunc.


                                                5
                     (ii) A determination that the perpetrator in an
                     indicated report of abuse no longer represents a
                     risk of child abuse and that no significant public
                     purpose would be served by the continued listing
                     of the person as a perpetrator in the Statewide
                     database.

23 Pa. C.S. §6341(a)(1) (emphasis added). Whether the failure of B.W.’s attorney
to communicate with him constitutes “good cause” is for the Department to
determine in the first instance. Further, there has been no record on whether
B.W.’s allegations about his attorney’s acts or omissions are factually true.
              For the above-stated reasons, B.W.’s request to appeal nunc pro tunc
is denied.5

                                                  ______________________________
                                                  MARY HANNAH LEAVITT, Judge




5
  B.W. argues that the Department’s adjudication is not supported by substantial evidence.
Because we are denying B.W.’s request to appeal nunc pro tunc, we do not address his argument
on the merits.


                                             6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


B.W.,                               :
                 Petitioner         :
                                    :   CASE SEALED
           v.                       :   No. 220 C.D. 2015
                                    :
Department of Human Services,       :
                 Respondent         :

                                 ORDER

           AND NOW, this 23rd day of November, 2015, the request of
Petitioner, B.W., for permission to appeal nunc pro tunc from the order of the
Department of Human Services dated July 31, 2014, is hereby DENIED.

                                          ______________________________
                                          MARY HANNAH LEAVITT, Judge
