             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.W.,                                         :
                             Petitioner       :
                                              :
              v.                              :    CASE SEALED
                                              :
Department of Human Services,                 :    No. 44 C.D. 2015
                      Respondent              :    Submitted: December 31, 2015



BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: February 24, 2016

              Petitioner S.W. (Petitioner) petitions for review of an order of the
Secretary (Secretary) of the Department of Human Services (Department). The
Secretary adopted the December 3, 2014 recommended decision of an
Administrative Law Judge (ALJ), denying Petitioner’s request to appeal
a 2001 decision of the Department confirming the identification of Petitioner as a
perpetrator in an indicated report of child abuse and advising that ChildLine2
would maintain the report.           Petitioner also filed with the Department an

        1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
        2
         ChildLine is defined as “[a]n organizational unit of [the Department] which operates a
Statewide toll-free system for receiving reports of suspected child abuse established under
Section 6332 of the Child Protective Services Law,” 23 Pa. C.S. § 6332.
application/petition for reconsideration of that final order, which the Department
denied by decision dated December 24, 2014. Petitioner filed a petition for review
with this Court on January 16, 2015, which this Court deemed to constitute a
timely appeal only of the Secretary’s denial of reconsideration. Accordingly, the
order denying reconsideration of the Secretary’s order is the only order we now
review.
             We briefly note the facts as found by the ALJ.                         On
September 20, 2001, the Department sent a letter to Petitioner advising her that she
was listed on ChildLine as a child abuse perpetrator. That letter also informed
Petitioner of her right to request, within forty-five days of the date of the notice,
that the indicated report of child abuse be amended or destroyed.            Petitioner
apparently requested the Department to review and expunge the indicated report,
and, on December 3, 2001, the Department issued a letter notifying Petitioner that
it believed the report was accurate and that it would maintain the report. That
letter also advised Petitioner that she had the right to request, within forty-five days
of the date of the notice, a hearing on the matter. The Department sent the letter to
2046 North Gratz Street, 1st Floor, Philadelphia, PA 19121-1512.
             On October 21, 2014, Petitioner mailed an appeal of the
December 3, 2001 notice.        The ALJ conducted a hearing and issued a
recommended decision. The ALJ considered Petitioner’s own testimony that the
North Gratz Street address to which the Department mailed the notice advising
Petitioner of her hearing rights was the address at which she resided between 2000
and 2004. Petitioner offered no other evidence concerning her delay in filing an
appeal, such as any alleged fraud or breakdown of the administrative process, or




                                           2
other factors that might support a review of Petitioner’s untimely request for a
hearing on the indicated report of child abuse.
               After noting the pertinent regulations regarding timely appeals, the
ALJ considered whether any grounds existed to support an appeal nunc pro tunc.
The ALJ identified the salient factors that could support the consideration of an
appeal on such basis, but he noted that Petitioner testified that she remembered
nothing     from     2001     and    neither     admitted     nor     denied     receiving     the
December 3, 2001 notice. Additionally, the ALJ reiterated the fact that the address
to which the notice was mailed was Petitioner’s residence at the time. The ALJ
recommended that Petitioner’s appeal be denied as untimely and that nunc pro tunc
relief was not appropriate.           Petitioner requested reconsideration, which the
Secretary denied.
               Petitioner raises the following issues:            (1) whether the Secretary
abused her discretion in concluding that the evidence in the record does not support
a nunc pro tunc appeal; and (2) whether the Secretary abused her discretion in
applying the “Mailbox Rule.”3
               Our review of an order denying reconsideration of an administrative
order is limited to considering whether the Secretary abused her discretion.
Payne v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 928 A.2d 377, 379
(Pa. Cmwlth. 2007). An abuse of discretion in the denial of reconsideration of an
administration decision occurs only where the decision to deny reconsideration is

       3
          The so-called Mailbox Rule is a common law evidentiary tool which provides a
presumption to the party raising it that where evidence indicates that mail has been deposited in a
post office or mail box and addressed correctly to a recipient with adequate postage, the mail has
reached the party to whom it was addressed. In re rural Route Neighbors, 960 A.2d 856, 861
(Pa. Cmwlth. 2008), appeal denied, 989 A.2d 10 (Pa. 2010).



                                                3
manifestly unreasonable or is based upon bad faith, fraud, capricious action, or an
abuse of power. Id.
             Petitioner contends that the Secretary abused her discretion by
concluding that the Mailbox Rule applied in the first instance. Petitioner cites
decisions of this Court where we have held that the Mailbox Rule does not apply
when a party seeking to employ the rule has not provided sufficient evidence that a
letter or notice was mailed in the usual course of business. Dep’t of Transp. v.
Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Cmwlth. 1986). Petitioner asserts
that the ALJ should not have applied the Mailbox Rule because the Department did
not provide any evidence of mailing. Petitioner asserts that the Secretary abused
her discretion in discounting Petitioner’s testimony that she did not remember
receiving the December 3, 2001 notice.
             In response, the Department contends that, given the limited standard
of review over a decision denying reconsideration and in light of Petitioner’s
burden in seeking nunc pro tunc review, the record in this matter reveals no abuse
of discretion. The record fails to support a conclusion that the Secretary’s decision
was manifestly unreasonable or was the result of partiality, prejudice, bias, or ill
will. While Petitioner alleges that the ALJ and Secretary erred as a matter of law
in applying the Mailbox Rule, we agree with the Department that the record does
not reveal any factors that could lead the Court to conclude that the Secretary’s
decision to deny reconsideration was manifestly unreasonable or the result of
partiality, prejudice, or ill will. Consequently, we need not accept Petitioner’s




                                         4
invitation to inquire into the legal correctness of the Secretary’s decision on the
merits.4
               Accordingly, we conclude that the Secretary did not abuse her
discretion in denying Petitioner’s application/petition for reconsideration, and we
affirm the Secretary’s order.




                                     P. KEVIN BROBSON, Judge




       4
         Petitioner relies upon this Court’s unreported decision in B.B. In re: J.K. (Pa. Cmwlth.,
2022 C.D. 2014, filed June 10, 2015). We conclude that, even if B.B. had been filed as a
reported decision, it would not control the outcome in this matter, because it is distinguishable.
Although the Court in that appeal from a denial of reconsideration by the Secretary delved into
the merits of the underlying decision to deny a request to appeal nunc pro tunc, we did so
apparently based upon the conclusion that the record revealed the Secretary to have reached a
manifestly unjust decision in denying reconsideration. In contrast to B.B., Petitioner here, who
bore the burden in seeking to obtain nunc pro tunc relief, see J.C. v. Department of Public
Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998), testified only that she could not recall whether
or not she received the December 3, 2001 letter. Unlike the petitioner in B.B., there are simply
no apparent non-negligent grounds to support nunc pro tunc review of Petitioner’s untimely
appeal.



                                                5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S. W.,                                :
                       Petitioner     :
                                      :
           v.                         :   CASE SEALED
                                      :
Department of Human Services,         :   No. 44 C.D. 2015
                      Respondent      :


                                    ORDER


           AND NOW, this 24th day of February, 2016, the order of the
Secretary of the Department of Human Services is AFFIRMED.




                             P. KEVIN BROBSON, Judge
