            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Y. S.-R.,                                            :         SEALED CASE
                              Petitioner             :
                                                     :
                 v.                                  :         No. 362 C.D. 2019
                                                     :         Submitted: March 26, 2020
Department of Human Services,                        :
                      Respondent                     :

BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                              FILED: May 8, 2020

               Y. S.-R. (Petitioner), represented by counsel, petitions for review from
an order of the Secretary of Human Services (Secretary) denying her application for
reconsideration of the Department of Human Services (Department) Bureau of
Hearings and Appeals’ (BHA) order denying her request for expunction of an
indicated report of physical abuse from the ChildLine and Abuse Registry
(ChildLine).1 Petitioner did not appeal the BHA’s order on the merits. Discerning
no abuse of discretion by the Secretary, we affirm.


                                        I. Background
               Because the merits are not before us, we briefly summarize the incident
underlying the expunction matter.

       1
          ChildLine, a unit within the Department, operates a statewide system for receiving
indicated and actual reports of child abuse; refers the reports for investigation; and maintains the
reports for reference. 55 Pa. Code §3490.4 (definition of “ChildLine”). ChildLine is maintained
in accordance with the Child Protective Services Law, 23 Pa. C.S. §§6301–6386.
             Petitioner worked at a day care center in the City of Philadelphia, where
she was responsible for the care of young children, including C.T., a 10-month-old
boy (Child). While supervising the children in the television room, Petitioner struck
Child in the forehead more than once with a remote control (Incident). The mother
of Child (Mother) noticed visible bruising on his forehead when she picked him up
from day care that evening. Mother questioned Petitioner regarding the bruises and
was told Child fell in the playpen. Mother then took Child to the local hospital where
he was treated for a concussion and kept overnight for observation. Child was
listless, distressed and vomiting over the next 24 hours.


             Subsequently, Mother reported the Incident to the Philadelphia
Department of Human Services (Philadelphia DHS), which placed an indicated report
on ChildLine naming Petitioner as a perpetrator of physical abuse pursuant to the
Child Protective Services Law, 23 Pa. C.S. §§6301–6386. Philadelphia DHS sent
notice to Petitioner that she was listed in ChildLine. Petitioner timely requested
expunction and a hearing. Reproduced Record (R.R.) at 8a.


             An administrative law judge (ALJ) held a hearing. Philadelphia DHS
presented testimony of its social worker who investigated the Incident (Investigator),
Mother, and Dr. Marita Lind, regarding Child’s medical treatment, via telephone.
Petitioner, represented by counsel, testified on her own behalf. Critically, and
relevant here, during the hearing, her counsel did not identify any other witnesses.
Rather, he stated that no one else was expected to appear on behalf of Petitioner.
ALJ Hr’g, 12/10/18, Notes of Testimony (N.T.) at 8.




                                          2
                During the hearing, Philadelphia DHS’s witnesses testified about the
content of a security video that depicted the Incident. N.T. at 9 (“Workers viewed the
daycare video and observed [Petitioner] using object and hits [sic] [Child].”); R.R.
at 22a. Investigator testified about her knowledge of the Incident, based on both her
review of the security video footage and her interview with Petitioner. Investigator
confirmed that Petitioner admitted to using the remote to “tap” Child’s forehead, but
insisted it was not hard. R.R. at 37a.


                However, Petitioner’s counsel raised an objection to any testimony about
the content of the video based on the best evidence rule.2 The video depicting the
Incident was erased when the local police attempted to copy it, so it was no longer
available. Counsel stipulated that there was no ill intent in erasing the video, and its
erasure should not give rise to an adverse inference. R.R. at 73a. The ALJ refrained
from ruling on the objection at that time, allowing the record to include the testimony.
Therefore, Petitioner’s counsel questioned the Department’s witnesses about the
Incident based on their review of the video. Investigator testified she saw Petitioner
strike Child in the forehead three times with a remote control. N.T. at 51; R.R. at 64a.


                Petitioner described the Incident as follows. Child was crawling toward
her, and stood up near a highchair holding another child. Petitioner was concerned
he was going to topple the other child, so she gestured close to his head so he would
move away. She claimed she did not touch Child, and that her co-worker was
present. Her co-worker treated Child with an ice pack and wrote an incident report.

        2
           The best evidence rule generally requires the original of a record, usually a writing, as the
“best evidence” of its contents. Rule 1002 of the Pennsylvania Rules of Evidence applies this
rationale to recordings as well. Nonetheless, the technical rules of evidence do not apply to agency
proceedings. See 2 Pa. C.S. §505.

                                                   3
             Following the hearing, the ALJ issued an adjudication that denied
Petitioner’s request for expunction. The ALJ found that Child suffered physical
injury, including a concussion. He did not credit Petitioner’s testimony that when
she hit Child, she did not do so hard. Based on the testimony, including Petitioner’s
conflicting accounts of the Incident, he concluded Petitioner’s conduct caused bodily
harm to Child when she intentionally struck Child on the forehead.


             The BHA adopted the ALJ’s adjudication in its entirety (Merits Order).
The Merits Order, issued January 28, 2019, stated that “an appeal may be filed within
thirty (30) days from the date of this order … [and] must be filed” with the Clerk of
this Court. Pet., Ex. A (emphasis in original); R.R. at 11a. Petitioner did not appeal
the Merits Order.


             Instead, Petitioner filed an application for reconsideration. See Pet., Ex.
B; R.R. at 12a. Therein, she challenged the completeness of the record before the
BHA in that “there were [sic] no video that proves that I ‘hit’ the child and there
were no witnesses of mines [sic] to call on and testify what happened that day of the
[I]ncident.” Id. She requested a remand for another hearing where additional,
unidentified witnesses could testify on her behalf. The Secretary denied her request
for reconsideration by order dated February 28, 2019 (Reconsideration Order).


             Petitioner timely filed a petition for review (Petition) of the
Reconsideration Order on March 28, 2019. Although she asks this Court to reverse
the Merits Order in her Petition, she appealed only the Reconsideration Order.




                                           4
                 Philadelphia DHS intervened in the matter. After briefing,3 the matter
is ready for disposition.


                                          II. Discussion
                 On appeal, represented by different counsel, Petitioner argues the
Secretary abused her discretion in denying reconsideration of the Merits Order
because the BHA decided the merits on an incomplete record, without hearing
witnesses in her favor. She also maintains the BHA should not have upheld the
report when the video was not available and there were no witnesses to the Incident.


                 The Department counters that Petitioner appealed only the
Reconsideration Order, without showing that the denial of reconsideration was
manifestly unreasonable or that the Secretary abused her discretion.


                 In a ChildLine expunction case, the Department bears the burden of
proof and persuasion. G.V. v. Dep’t of Human Servs., 91 A.3d 667 (Pa. 2014). Here,
Petitioner, represented by counsel in the hearing before the BHA, did not appeal the
Merits Order. Thus, she lost the right for this Court to review that order. Keith v.
Dep’t of Pub. Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988). To the extent Petitioner’s
arguments pertain to the outcome of the hearing, a decision that she failed to timely
appeal, we are precluded from considering these issues.4 Accordingly, we confine
our review to the Reconsideration Order.

       3
           Declining to file its own brief, Philadelphia DHS joined in the Department’s brief.
       4
        As part of her relief request, she asks this Court to reverse the BHA’s Merits Order dated
January 28, 2019. Again, this is a challenge to the merits, and not before us. In the alternative,



                                                  5
               “Our scope of review of an agency’s decision on a reconsideration
request is limited to determining whether the secretary has abused his or her
discretion.” Keith, 551 A.2d at 336. “The grant or denial of reconsideration is a
matter of administrative discretion” that we may “reverse only for an abuse of
discretion.” Modzelewski v. Dep’t of Pub. Welfare, 531 A.2d 585, 587 (Pa. Cmwlth.
1987). An abuse of discretion will only be found where the record shows there was
fraud, bad faith, capricious action, or an abuse of power. Keith; see also Becirovic v.
Dep’t of Human Servs. (Pa. Cmwlth., No. 2139 C.D. 2015, filed Sept. 9, 2016), 2016
WL 4709195 (unreported) (affirming Secretary order denying reconsideration).5 Cf.
B.B. v. Dep’t of Pub. Welfare, 118 A.3d 482, 485 (Pa. Cmwlth. 2015) (reversing order
denying reconsideration when secretary denied appeal nunc pro tunc; counsel had
emergency eye surgery resulting in late appeal of merits order).6


               Essentially, Petitioner assigns error in that the BHA decided the matter
without hearing witnesses in her favor or reviewing the video evidence. She asserts
she has a right to another hearing where she can present witnesses in her favor.


               To the extent Petitioner challenges the due process of the hearing, we
are unpersuaded.

she asks this Court to vacate the Secretary’s Reconsideration Order and remand with instructions
to hold a hearing on reconsideration. Pet. ¶7.
       5
         We cite this case for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).
       6
         In B.B., like this case, the matter involved expunction of an indicated child abuse report
from ChildLine. However, that order was appealed a few days late, and it was the ALJ’s denial of
nunc pro tunc relief that was the basis for the application for reconsideration. This Court
determined the Secretary abused his discretion in denying reconsideration on the acceptance of an
untimely appeal because it was a couple days late as a result of counsel’s medical procedure, which
this Court deemed a non-negligent circumstance warranting relief.

                                                 6
               Due process in administrative proceedings is a flexible concept,
affording the parties “an opportunity to hear the evidence, cross-examine witnesses,
introduce evidence on one’s own behalf, and present argument.” R.J.W. v. Dep’t of
Human Servs., 139 A.3d 270, 289 (Pa. Cmwlth. 2016). In addition, “[t]ypically,
questions concerning the admission or exclusion of evidence in an administrative
proceeding are within the discretion of the tribunal conducting the hearing and are
not to be disturbed on appeal absent a finding of abuse of discretion.” Id.


               As to the video, there is no dispute that the video was destroyed and
that the ALJ did not consider the testimony regarding the video content in making
his adjudication.7 Nevertheless, to constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to the complaining party.
“Evidentiary rulings which did not affect the decision will not provide a basis for
disturbing the fact-finder’s judgment.” R.J.W., 139 A.3d at 290 (determining
absence of videotape of forensic interview of child did not warrant remand as ALJ
made decision based on other facts).


               We carefully reviewed the record in this case and find nothing in it or
in Petitioner’s brief which suggests that the Secretary acted in bad faith, fraudulently,
or capriciously, or abused her power in denying Petitioner’s request for
reconsideration. First, we discern no merit in Petitioner’s claims that she was
precluded from presenting witnesses in her favor at the hearing.


       7
          This Court has reasoned that “[t]he best evidence rule does not apply where the matter to
be proved exists independently of the [evidence at issue].” Abruzzese v. Bureau of Prof’l & Occ’l
Affairs, State Bd. of Cosmetology, 185 A.3d 446, 455 (Pa. Cmwlth. 2018). In this case, the BHA
made its findings based on the testimony, primarily, Petitioner’s admissions regarding the Incident.

                                                 7
             From our careful review of the transcript, Petitioner did not request to
present any rebuttal witnesses or other evidence supporting her case. Indeed, during
the hearing, Petitioner’s counsel advised that she was the sole witness in her case.


             Significantly, at no point in these proceedings has Petitioner identified
a single eyewitness, much less made an offer of proof as to the unidentified new
witnesses’ testimony. Further, Petitioner’s claim that there were eyewitnesses to the
Incident, other than herself and Child, is unsupported by the record. To the extent
there is testimony regarding the Incident and what the video depicted, the witnesses
testified that there was no one in the room other than Petitioner. Thus, it is not clear
that there were any additional eyewitnesses to support Petitioner’s account.


             Additionally, although Petitioner testified as an eyewitness to the
Incident, the fact-finder did not credit her testimony regarding the Incident. R.J.W.
She initially testified she did not touch Child, and then testified that “there was like
a tapping;” she admitted she tapped his head three times. N.T. at 118. Then, after
counsel noted she previously denied touching Child, she stated it was “hard for [her]
to explain” how she tapped but did not touch Child. Id.


             This Court is not able to reconsider credibility determinations, even on
the merits. R.J.W. In adopting the ALJ’s adjudication, the BHA became the final
fact-finder in this expunction appeal. Id. Absent an abuse of discretion, we will not
disturb the BHA’s determinations as to credibility and evidentiary weight. Id.




                                           8
               Ultimately, the BHA did not credit Petitioner’s account. It bears noting
that Petitioner only advised there were additional witnesses after receiving an
adverse decision. Moreover, Petitioner offers no explanation about her neglect in
presenting these additional witnesses during the hearing. Unless the evidence was
not available, her request for a hearing on reconsideration amounts to no more than
a veiled attempt to take a second bite at the apple.


               Thus, we conclude Petitioner had an opportunity to call favorable
witnesses at the hearing and thus be heard pursuant to Section 504 of the
Administrative Agency Law, 2 Pa. C.S. §504. Her claim that she was unable to do
so is unsupported by the record. N.T. at 9.


                                       III. Conclusion
               Because the ALJ afforded Petitioner a full opportunity to develop the
record in this matter, we discern no basis for a remand for another hearing.
Regardless, Petitioner did not establish the Secretary abused her discretion.
Accordingly, there is no basis for reversal here. For these and the foregoing reasons,
we affirm the Secretary’s Reconsideration Order.8


                                                    ______________________________
                                                    J. ANDREW CROMPTON, Judge




       8
         Even had Petitioner appealed the Merits Order regarding the indicated report, we would
not have reached a different result. In light of Petitioner’s admissions and the BHA’s credibility
determinations, there was substantial credited evidence in support of the BHA’s order, and we
would be constrained to affirm the BHA had that order been properly before us. G.V. v. Dep’t of
Human Servs., 91 A.3d 667 (Pa. 2014).

                                                9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Y. S.-R.,                                 :      SEALED CASE
                        Petitioner        :
                                          :
              v.                          :      No. 362 C.D. 2019
                                          :
Department of Human Services,             :
                      Respondent          :


                                     ORDER

             AND NOW, this 8th day of May 2020, the order of the Secretary of
Human Services, of the Department of Human Services, denying Petitioner’s
application for reconsideration is AFFIRMED



                                          ______________________________
                                          J. ANDREW CROMPTON, Judge
