              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

L.H.,                                     :   SEALED CASE
                          Petitioner      :
                                          :
                   v.                     :
                                          :
Department of Human Services,             :   No. 406 C.D. 2018
                      Respondent          :   Argued: October 16, 2018


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION BY
JUDGE COVEY                                   FILED: November 6, 2018

             L.H. petitions this Court for review of the Department of Human
Services’ (DHS) February 26, 2018 order upholding the Bureau of Hearings and
Appeals’ (BHA) September 20, 2017 order adopting the Administrative Law Judge’s
(ALJ) Adjudication dismissing L.H.’s appeal as untimely. L.H. presents two issues
for this Court’s review: (1) whether DHS erred by denying nunc pro tunc relief; and
(2) whether using the mailbox rule violated L.H.’s statutory and due process rights.
             On April 13, 2016, Beaver County Children and Youth Services (CYS)
filed a Child Protective Services Investigation Report (CY-48) naming L.H. as a
perpetrator in an indicated report of child abuse. CYS identified the subject child as
E.K., and stated the report was being indicated for sexual abuse. On April 13, 2016,
CYS sent L.H. a letter notifying him it had concluded its investigation of the report of
sexual abuse of E.K. and determined the report to be indicated (April 13, 2016
Letter). The April 13, 2016 Letter was sent to L.H. On April 14, 2016, ChildLine
and Abuse Registry (ChildLine)1 allegedly mailed L.H. a letter notifying him that he
is listed on the statewide central register of child abuse as a perpetrator in an
indicated report of child abuse against E.K. (E.K. Notice).2 The E.K. Notice advised
L.H. of his right to request that the indicated report be amended or destroyed, and
instructed L.H. that the request must be made within 90 days of the E.K. Notice date.
                On March 9, 2017, L.H. appealed from the E.K. Notice. L.H.’s appeal
was postmarked 314 days after the E.K. Notice was purportedly mailed. On May 4,
2017, ChildLine issued a letter notifying L.H. that it had received his appeal, but
could not review it because the appeal was not received within 90 days of the E.K.
Notice mailing date. The May 4, 2017 letter notified L.H. that if he believed the
appeal should be considered even though it was not received within the time required
by law, L.H. must request that the BHA review the indicated finding of child abuse,
and the request must be received within 90 days of the date of the May 4, 2017 letter.
On August 2, 2017, L.H. filed a response to the May 4, 2017 letter.
                An ALJ held a hearing on September 7, 2017 to address whether L.H.’s
appeal was timely filed and, if not, whether sufficient grounds exist to allow the
appeal to proceed nunc pro tunc. On September 14, 2017, the ALJ recommended
that L.H.’s appeal be dismissed as untimely. On September 20, 2017, the BHA
adopted the ALJ’s recommendation.                L.H. filed a Motion for Reconsideration

       1
           ChildLine is defined as
                [a]n organizational unit of [DHS] which operates a Statewide toll-free
                system for receiving reports of suspected child abuse established
                under [S]ection 6332 of the [Child Protective Services Law, 23
                Pa.C.S. § 6332] (relating to establishment of [s]tatewide toll-free
                telephone number), refers the reports for investigation and maintains
                the reports in the appropriate file.
55 Pa. Code § 3490.4.
       2
         On April 14, 2016, ChildLine also sent L.H. a notice informing him that he is listed as a
perpetrator of child abuse against S.H., Report Number 7543931.


                                                  2
(Motion) which DHS received on October 6, 2017.                        On October 12, 2017,
notwithstanding that the Motion was untimely filed, having been received one day
late,3 DHS granted the Motion. On February 26, 2018, DHS upheld the BHA’s
September 20, 2017 order. On March 28, 2018, L.H. appealed to this Court.4
               At the outset, because the Motion was untimely filed, DHS was without
jurisdiction to grant the Motion. Ciavarra v. Commonwealth, 970 A.2d 500, 503 (Pa.
Cmwlth. 2009) (“[T]he fifteen-day period is mandatory and [] the failure to request
reconsideration within that period deprives an agency of jurisdiction to consider the
request.”). Further, because DHS did not have jurisdiction to grant the Motion, its
order upholding the BHA’s September 20, 2017 order is null and void.                             Id.
Consequently, L.H. had 30 days to appeal from the BHA’s September 20, 2017 order,
rather than DHS’ February 26, 2018 order. However, because DHS granted the
Motion before the 30-day appeal period expired, L.H. reasonably could have believed
that no appeal from the September 20, 2017 order was necessary. Thus, L.H.’s
failure to timely appeal was caused by an administrative breakdown, i.e., DHS’
inadvertent granting of the Motion. Accordingly, this Court will treat L.H.’s instant
appeal as a petition for leave to appeal nunc pro tunc from the September 20, 2017
order and grant the petition. See H.D. v. Pa. Dep’t of Pub. Welfare, 751 A.2d 1216,
1219 (Pa. Cmwlth. 2000) (“An appeal nunc pro tunc may be allowed where the delay


       3
          “An application for . . . reconsideration may be filed by a party to a proceeding within 15
days[.]” Section 35.241(a) of the General Rules of Administrative Practice and Procedure, 1 Pa.
Code § 35.241(a); see also the BHA’s September 20, 2017 order, Reproduced Record at 12a
(“Either party to this proceeding has fifteen (15) calendar days from the date of this decision to
request reconsideration by the Secretary of the Department.”).
        4
          “This Court’s standard of review on appeal from a BHA order ‘is limited to determining
whether the adjudication is supported by substantial evidence, whether the decision is in accordance
with the applicable law, or whether constitutional rights are violated.’” Support Ctr. for Child
Advocates v. Dep’t of Human Servs., 189 A.3d 497, 499 n.5 (Pa. Cmwlth. 2018) (quoting Casey
Ball Supports Coordination, LLC v. Dep’t of Human Servs., 160 A.3d 278, 282 n.8 (Pa. Cmwlth.
2017)).
                                                 3
in filing the appeal was caused by extraordinary circumstances involving . . . some
breakdown in the administrative process[.]”) (italics added).
             L.H. first argues that DHS erred by denying nunc pro tunc relief because
his untimely filing was due to not having received the E.K. Notice.
             Initially, Section 6341(a)(2) of the Child Protective Services Law
(CPSL) provides:

             Any person named as a perpetrator . . . in an indicated
             report of child abuse may, within 90 days of being notified
             of the status of the report, request an administrative review
             by, or appeal and request a hearing before, the secretary to
             amend or expunge an indicated report on the grounds that it
             is inaccurate or it is being maintained in a manner
             inconsistent with this chapter. The request shall be in
             writing in a manner prescribed by [DHS].

23 Pa.C.S. § 6341(a)(2). It is undisputed that L.H. did not appeal from the indicated
report within 90 days. Thus, the appeal was untimely.
             “An appeal nunc pro tunc may be allowed where the delay in filing the
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.” H.D., 751 A.2d. at 1219 (italics
added). L.H. contends that there was an administrative breakdown because he never
received the E.K. Notice. DHS rejoins that, under the mailbox rule, there is a
presumption that L.H. received the E.K. Notice. Specifically, “[u]nder the mailbox
rule, evidence that a letter was mailed ordinarily will be sufficient to permit a fact-
finder to find that the letter was, in fact, received by the party to whom it was
addressed.” Douglas v. Unemployment Comp. Bd. of Review, 151 A.3d 1188, 1191
(Pa. Cmwlth. 2016).




                                           4
               In the ALJ’s September 14, 2017 Recommendation, he states:

               In this case, counsel for [L.H. (Counsel)] argued there was a
               breakdown in the administrative process in this case as
               [L.H.] did not receive the [E.K. Notice] for the above-
               captioned indicated report of child abuse. To that end,
               [C]ounsel argued that [L.H.] received three notices of
               another indicated report of child abuse [(S.H. Notices)]
               (Exhibit[s] A-1 and A-2), but [L.H.] did not receive a notice
               from ChildLine regarding the above-captioned indicated
               report of child abuse. However, the [E.K. Notice] was sent
               to [L.H.’s] correct address . . . and it was not returned
               by the [United States Postal Service (]USPS[)] as
               undeliverable. Thus, pursuant to the mailbox rule, it is
               presumed that [L.H.] received the [E.K. Notice].
               Furthermore, there was no testimony presented at the
               hearing to rebut the presumption that [L.H.] received the
               [E.K. Notice]. In addition, [L.H.] received the [S.H.
               Notices], as well as the Agency’s April 13, 2016 letter
               [(April 13, 2016 Letter)], which were also sent to [the
               correct address].

Reproduced Record (R.R.) at 18a-19a (emphasis added). “However, in order for the
mailbox rule to apply, . . . ‘there must be some evidence . . . that the [E.K. N]otice
was mailed . . . . Until there is proof that a letter was mailed, there can be no
presumption that it was received.’” Ne. Eye Inst. v. Unemployment Comp. Bd. of
Review, 176 A.3d 455, 458 (Pa. Cmwlth. 2017) (quoting Douglas, 151 A.3d at 1192
(internal citations omitted)). A review of the record reveals that DHS did not present
any evidence that the E.K. Notice “was sent,” or that “it was not returned by the
USPS as undeliverable.” Id. Indeed, DHS did not present any evidence at the
hearing.5

       5
          There is an “AFFIDAVIT OF MAILING” in both the certified record and the reproduced
record; however, it was not introduced at the hearing, as revealed after a thorough review of the
transcript. BHA Counsel admitted at oral argument that the Affidavit was not presented at the
hearing and thus, it is not evidence this Court can rely upon in making its determination. Further, as
the ALJ explained: “The hearing record remained open for five (5) business days [after the hearing]
to allow for submission of post-hearing exhibits. On September 11, 2017, the [ALJ] received
exhibits A-1 through A-3 [L.H.’s exhibits] and the hearing record was closed.” R.R. at 14a.
                                                  5
             Further, although L.H. did not present testimony at the hearing, L.H.
submitted the S.H. Notice. See R.R. at 3a-7a. It is uncontested that L.H. appealed
from the S.H. Notice upon receipt. L.H. offered the S.H. Notice into evidence for the
inference that if he had received the E.K. Notice, he would have appealed therefrom
as well. Thus, L.H. maintains that he did not assert a mere denial of receipt but,
rather, he presented circumstantial evidence that he did not receive the E.K. Notice.
             By way of background, as set forth in the September 7, 2017 hearing
transcript submitted by DHS as part of its Supplemental Reproduced Record (S.R.R.),
see S.R.R. at 30b-37b, L.H. has cognitive difficulties, thus L.H.’s mother (Mother) is
the person who contacted Counsel for purposes of the appeals. L.H.’s Counsel
revealed that he was alerted of the E.K. Notice during the week of February 12, 2017,
when he reviewed the transcript with Mother in the S.H appeal. Apparently, the
transcript was redacted in connection with any material related to E.K. Counsel
asked Mother about the redactions and she reported that there was a second
accusation by E.K.     When Counsel inquired whether Mother had received any
documentation pertaining to the second matter, Mother described an April 13, 2016
Letter, see R.R. at 11a, stating it was an indicated report but they never received an
official appealable notice. At some point thereafter, Mother read the April 13, 2016
Letter to Counsel over the phone. On March 9, 2017, Counsel filed the instant
appeal.
             Notwithstanding, the ALJ did “not find there is sufficient evidence to
show there was a breakdown in the administrative process in this case” because
“pursuant to the mailbox rule, it is presumed that [L.H.] received the [E.K. Notice].”
R.R. at 19a. However, because DHS did not submit any evidence of mailing, the ALJ
erred by applying the mailbox rule.       As there was no evidence of mailing, no
presumption of receipt was created and, thus, “the adjudication [to the contrary was
not] supported by substantial evidence, . . . [and] the decision [was not] in accordance
                                           6
with the applicable law[.]”6 Support Ctr. for Child Advocates v. Dep’t of Human
Servs., 189 A.3d 497, 499 n.5 (Pa. Cmwlth. 2018) (quoting Casey Ball Supports
Coordination, LLC v. Dep’t of Human Servs., 160 A.3d 278, 282 n.8 (Pa. Cmwlth.
2017)).
                Further, the ALJ concluded:

                [L.H.] also has the burden of establishing that the appeal
                was filed within a short time after learning of and having an
                opportunity to address the untimeliness. Here, [DHS] sent a
                letter to [L.H.] on April 13, 2016 informing [L.H.] that they
                have concluded their investigation of a report of sexual
                abuse involving E.K., and they determined the report to be
                indicated [(April 13, 2016 Letter)]. While the letter does
                not provide a report number, the letter identifies the subject
                child as E.K. and states that it involves a report of sexual
                abuse. Likewise, the [April 13, 2016 Letter] identified E.K.
                as the subject child, and the report was indicated for sexual
                abuse. Additionally, the April 13, 2016 [L]etter was sent
                the same day as [DHS] filed the above-captioned indicated
                report of child abuse. Thus, if [L.H.] actually did not
                receive the [E.K. N]otice, I find that [L.H.] was aware of
                the above-captioned indicated report of child abuse since
                April 2016, but [L.H.] did not file an appeal until almost a
                year later on March 9, 2017. Therefore, I do not find [L.H.]
                acted within a short time of having an opportunity to
                address the untimeliness.

R.R. at 19a. However, a review of the April 13, 2016 Letter (which L.H. offered at
the hearing and was accepted into evidence), and the S.H. Notice (which L.H. offered
at the hearing and was accepted into evidence; DHS never introduced the E.K.
Notice), evidences the lack of foundation for the ALJ’s conclusion.
                The April 13, 2016 Letter is formatted as a typical business letter, i.e.,
CYS letterhead across the top, date in the upper right corner, L.H.’s address in the
upper left corner, RE, salutation and letter content. See R.R. at 11a. In stark contrast,


      6
          Given the disposition of the first issue, we do not reach L.H.’s second issue.
                                                   7
the   S.H.    Notice     contains:    “IMPORTANT            INFORMATION             -    READ
CAREFULLY” centered across the top of the page, immediately below the CYS
caption which is in the top left corner of the page. R.R. at 3a (emphasis in original).
In addition, the S.H. Notice includes: “YOU ARE LISTED IN THE STATEWIDE
DATABASE FOR CHILD ABUSE AS A PERPETRATOR IN AN INDICATED
REPORT OF CHILD ABUSE” centered below L.H.’s address. Id. (emphasis in
original). Finally, the S.H. Notice concludes: “You must request a review within
90 days of the mailing date listed at the top of this notice.” Id. (emphasis in
original). There is no indication whatsoever in the April 13, 2016 Letter that L.H.
could appeal therefrom. Thus, the ALJ’s conclusion that L.H. “learn[ed] of and ha[d]
an opportunity to address the untimeliness[,]” since April 2016, R.R. at 19a, is not
“supported by substantial evidence.”7 Support Ctr. for Child Advocates, 189 A.3d at
499 n.5 (quoting Casey Ball Supports Coordination, LLC, 160 A.3d at 282 n.8).
              For all of the above reasons, DHS’ September 20, 2017 order is reversed
and L.H.’s nunc pro tunc appeal is granted. The matter is remanded to the BHA for
further proceedings.



                                           ___________________________
                                           ANNE E. COVEY, Judge




       7
         Counsel did not learn of nor have an opportunity to address the untimeliness until after
speaking with L.H.’s Mother, sometime between February 12 and March 9, 2017.



                                               8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

L.H.,                                      :   SEALED CASE
                         Petitioner        :
                                           :
                   v.                      :
                                           :
Department of Human Services,              :   No. 406 C.D. 2018
                      Respondent           :


                                      ORDER

            AND NOW, this 6th day of November, 2018, the Department of Human
Services’ September 20, 2017 order is REVERSED, and L.H.’s nunc pro tunc appeal
is GRANTED. The matter is remanded to the Bureau of Hearings and Appeals for
further proceedings.
            Jurisdiction relinquished.


                                         ___________________________
                                         ANNE E. COVEY, Judge
