            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carbon County Children and Youth                  :
Services,                                         :
                       Petitioner                 :
                                                  :
                       v.                         :    No. 1 C.D. 2018
                                                  :    SUBMITTED: September 12, 2018
Department of Human Services,                     :
                      Respondent                  :    CASE SEALED


BEFORE:        HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                         FILED: September 26, 2018

               Carbon County Children and Youth Services (CYS) petitions for
review of a December 19, 2017, order of the Secretary of the Department of Human
Services (Department) denying as untimely CYS’s application for reconsideration
of the November 21, 2017, decision of the Bureau of Hearings and Appeals (Bureau)
granting the request to expunge indicated reports of child abuse against alleged
perpetrators C.S. and A.S. As a threshold matter, we note that CYS’s January 2,
2018, appeal was timely from the denial of its application for reconsideration, but
was not timely from the November 21 order on the merits.1 Therefore the only issue
before us is whether the Department abused its discretion in denying reconsideration.


    1
     A party that fails to file a petition for review of the Bureau’s final order within the thirty-day
appeal period loses the ability to challenge the merits of the decision. See Keith v. Dep’t of Pub.
Welfare, 551 A.2d 333, 335 (Pa. Cmwlth. 1988).
Because we agree that CYS’s application for reconsideration was untimely, the
denial was proper and, therefore, we affirm.
              The relevant background of this matter is as follows. On November 21,
2017, the Bureau issued an order sustaining the appeals of the alleged perpetrators
and directing the Department to expunge the indicated reports of child abuse against
them. In addition to indicating that any appeal to the Commonwealth Court had to
be filed within thirty days from November 21, the order provided as follows:

                     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. . . .
              The application/petition shall be addressed to the
              Secretary, but delivered to the Director, Bureau of
              Hearings and Appeals, P.O. Box 2675, Harrisburg,
              Pennsylvania, 17105-2675, and must be received in the
              Bureau . . . within fifteen (15) calendar days from the date
              of this Order. This action does not stop the time within
              which an appeal must be filed to Commonwealth Court.

(November 21, 2017, Order) (emphasis in original).                  Accordingly, with the
November 21 mailing date triggering the beginning of the fifteen-day period, the
application for reconsideration had to be received in the Bureau by December 6.2
              Subsequently, CYS mailed an application for reconsideration to the
Bureau on December 5, 2017, attaching a certificate of mailing reflecting that date.
(Application for Reconsideration, Certificate of Mailing; Reproduced Record “R.R.”
at 76a.) The Bureau received CYS’s application for reconsideration on December 7
and time stamped it accordingly. (Id. at p. 1; R.R. at 72a.) On December 19, the
Secretary denied CYS’s application for reconsideration as untimely. On appeal,



    2
      Colonial Manor Pers. Care Boarding Home v. Dep’t of Pub. Welfare, 551 A.2d 347, 350
(Pa. Cmwlth. 1988) (holding that the mailing date triggers the beginning of the appeal period).


                                              2
CYS argues that its December 5 certificate of mailing rendered its application for
reconsideration timely. Its position is without merit.
             Section 35.241(a) of the General Rules of Administrative Practice and
Procedure provides that an application for reconsideration may be filed by a party to
a proceeding “within 15 days, or another period as may be expressly provided by
statute applicable to the proceeding, after the issuance of an adjudication or other
final order by the agency.” 1 Pa. Code § 35.241(a). Additionally, Section 31.11 of
the same Rules provides:

             Pleadings, submittals or other documents required or
             permitted to be filed under this part, the regulations of the
             agency or any other provision of law shall be received for
             filing at the office of the agency within the time limits, if
             any, for the filing. The date of receipt at the office of the
             agency and not the date of deposit in the mails is
             determinative.

1 Pa. Code § 31.11 (emphasis added). See also Colonial Manor Pers. Care Boarding
Home v. Dep’t of Pub. Welfare, 551 A.2d 347, 350 (Pa. Cmwlth. 1988) (holding that
the day upon which the petition is received is controlling for purposes of time
computation for an application for reconsideration). CYS could not rely upon the
date it mailed its application for reconsideration to establish its timeliness.
Accordingly the Department’s denial was appropriate, and certainly not an abuse of
discretion and, therefore, we affirm.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Senior Judge




                                          3
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carbon County Children and Youth       :
Services,                              :
                       Petitioner      :
                                       :
                 v.                    :   No. 1 C.D. 2018
                                       :
Department of Human Services,          :
                      Respondent       :   CASE SEALED




                                    ORDER


           AND NOW, this 26th day of September, 2018, the order of the Secretary
of the Department of Human Services is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
