         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


T.C.,                                          :
                      Petitioner               : CASE SEALED
                                               :
              v.                               : No. 2225 C.D. 2015
                                               : Submitted: July 1, 2016
Department of Human Services,                  :
                 Respondent                    :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                                 FILED: July 19, 2016

              The Secretary of the Department of Human Services (Secretary)
issued an October 8, 2015 order denying reconsideration of the September 15,
2015 order issued by the Department of Human Services, Bureau of Hearings and
Appeals (Bureau) adopting the Recommendation of the Administrative Law Judge
(ALJ) denying T.C.’s (Petitioner) request to appeal nunc pro tunc and expunge an
indicated report of child abuse maintained on the Child Line Registry pursuant to
the Child Protective Services Law (CPS Law).1 We affirm.
              Failure to timely appeal an administrative agency’s action ordinarily
deprives an appellate court of jurisdiction; consequently, the time for taking an

1
  23 Pa. C.S. §§ 6301-6384. The Child Line Registry is a statewide system for receiving reports
of suspected child abuse, referring reports for investigation, and maintaining those reports. 23
Pa. C.S. § 6332. A report of suspected child abuse may be either “indicated,” “founded,” or
“unfounded.” 23 Pa. C.S. §§ 6337, 6338. In the case of “indicated” or “founded” reports, the
information is placed in the statewide central registry. 23 Pa. C.S. § 6338(a).
appeal cannot be extended as a matter of grace or mere indulgence.           J.A. v.
Department of Public Welfare, 873 A.2d 782, 785 (Pa. Cmwlth. 2005). In order
for an untimely appeal to proceed as though it had been timely filed, the petitioner
must demonstrate that the delay in filing was caused by extraordinary
circumstances involving fraud or some breakdown in the administrative process, or
non-negligent circumstances related to the petitioner, the petitioner’s counsel or a
third party. C.E. v. Department of Public Welfare, 97 A.3d 828, 832 (Pa. Cmwlth.
2014). In addition, a petitioner seeking permission to file an untimely appeal must
establish that: (1) the appeal was filed within a short time after learning of and
having an opportunity to address the untimeliness; (2) the elapsed time period is of
short duration; and (3) the respondent will not be prejudiced by the delay. H.D. v.
Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000).
            In the instant matter, a telephonic hearing was held before the ALJ on
August 11, 2015 to provide Petitioner, who appeared pro se, the opportunity to
present testimony and evidence in support of his argument that he should be
permitted to appeal nunc pro tunc.        (Certified Record Number 7, Hearing
Transcript (H.T.).) At the hearing, the ALJ gave Petitioner until August 18, 2015,
or five business days, to submit written documentation of the date upon which
Petitioner signed to acknowledge receipt of his legal file from his former attorney,
in order to support Petitioner’s testimony that he only received notice of the
indicated report when he took possession of the file kept by his former attorney.
(Id., H.T. at 22-24.) Petitioner did not provide the documentation in the time
period provided. (ALJ Adjudication and Recommendation, Procedural History.)
Based on the record created, the ALJ made the following findings of fact, which
were adopted by the Bureau:


                                         2
            1. On April 1, 2015, ChildLine sent [Petitioner] a letter
            giving notice that [Petitioner] is listed on the statewide
            central register of child abuse as a perpetrator in an
            indicated report of child abuse.

            2. The April 1, 2015 letter notified [Petitioner] of the
            right to request the indicated report be amended or
            destroyed and instructed [Petitioner] a request must be
            made within 90 days of the date of the notice.

            3. The April 1, 2015 letter was sent to [Petitioner’s]
            correct address at [address redacted].

            4. On July 9, 2015, [Petitioner] mailed an appeal of the
            April 1, 2015 notice.

            5. [Petitioner’s] appeal was dated June 29, 2015.

            6. [Petitioner’s] July 9, 2015 appeal was postmarked 99
            days after the mailing of the April 1, 2015 notice.

            7. At the hearing, [Petitioner] did not provide credible
            testimony that he did not receive the April 1, 2015 notice
            from ChildLine.

(ALJ Adjudication and Recommendation, Findings of Fact (F.F.) ¶¶1-7.) In the
accompanying discussion, the ALJ identified the question of whether or not
Petitioner’s appeal was untimely as the first issue for review. (ALJ Adjudication
and Recommendation, Discussion at 2.) Determining that Petitioner was advised
of the report and his right to appeal in a notice mailed on April 1, 2015, and that
Petitioner’s appeal was postmarked July 9, 2015, although it was dated June 29,




                                        3
2015, the ALJ concluded that Petitioner’s appeal was untimely. 2 Next, the ALJ
addressed whether Petitioner had produced sufficient evidence to demonstrate
circumstances warranting relief in the form of a nunc pro tunc appeal. (Id.) The
ALJ determined that Petitioner had not met his burden and, significantly, that the
testimony offered by Petitioner in support of his request for nunc pro tunc relief
was inconsistent and ultimately not credible. (Id. at 3.) The ALJ stated:


               [Petitioner] testified that he did not receive the April 1,
               2015 notice until he received a copy of his file from his
               former attorney. However, [Petitioner] could not explain
               how his former attorney obtained a copy of the notice
               from ChildLine, and his former attorney was not present
               at the hearing. Also, the April 1, 2015 notice was not
               sent to the address of [Petitioner’s] former attorney, but
               rather, it was mailed to the address of [Petitioner]. In
               addition, [Petitioner] testified he received his file from
               his former attorney on July 17, 2015 and filed an appeal
               thereafter, but [Petitioner’s] appeal was dated June 29,
               2015 and postmarked on July 9, 2015. Given the
               inconsistencies in [Petitioner’s] testimony, I do not find
               [Petitioner’s] testimony that he did not receive the April
               1, 2015 notice to be credible.


(Id. at 3.)
               Before this Court, Petitioner, represented by counsel, argues that the
Secretary erred in denying reconsideration because the ALJ committed an abuse of
discretion.3 Petitioner argues that he did not receive notice of the indicated report

2
  The CPS Law provides a 90 day appeal period in which a person named as a perpetrator of
child abuse in an indicated report may request that the report be expunged from the Child Line
registry. See 23 Pa. C.S. § 6341(a)(2).
3
  The Secretary’s decision to grant or deny a request for reconsideration is a matter of
administrative discretion and will be reversed only for an abuse of that discretion. 23 Pa. C.S. §
                                                4
and that notice instead went to his former counsel. Petitioner contends that he
became aware of the report only when he terminated his former counsel and his
former counsel provided Petitioner with his legal file. Petitioner further contends
that he had two other appeals with the Bureau and that it is illogical to assume he
would seek to have two indicated reports expunged, but not the third. Petitioner
also argues that the Bureau failed to offer any evidence demonstrating when the
notice-letter was sent to Petitioner or the method by which the notice-letter was
sent to Petitioner.
               Each of the arguments put forth by Petitioner were raised before the
ALJ and addressed in Petitioner’s testimony. The ALJ provided Petitioner with the
opportunity to submit additional evidence substantiating his testimony prior to the
close of the record. Petitioner did not do so. The ALJ did not find Petitioner’s
testimony to be credible, noting the multiple inconsistencies, and the inability to
offer a plausible explanation for how the notice-letter mailed to Petitioner at his
proper address found its way into his former attorney’s file without Petitioner’s
knowledge. The credibility and factual determinations made by the ALJ were
adopted in full by the Bureau and it is undisputed that the Bureau is the ultimate
finder of fact, with the sole province to determine the weight and credibility
afforded the evidence. 23 Pa. C.S. § 6341; F.R. v. Department of Public Welfare, 4
A.3d 779, 783 & n.3 (Pa. Cmwlth. 2010).                  Where a petitioner appealing an
administrative agency action seeks nunc pro tunc relief, it is the petitioner who
bears the evidentiary burden to establish circumstances warranting relief; the




6341(g); Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1987). An
abuse of discretion occurs where there is evidence of bad faith, fraud, capricious action or abuse
of power. Id.
                                                5
agency does not have the burden to show that relief is not warranted or to dispute
facts not proven.
             Finally, Petitioner argues that he exercised due diligence once he
discovered the need to appeal, that his appeal was filed merely nine days beyond
the appeal period, which included a weekend, and that there was no suggestion
below that the Bureau was prejudiced by his delay. Petitioner also argues that the
severity of the consequences accompanying the maintenance of an indicated report
of child abuse on the Child Line Registry vitiate in favor of relief.
             Petitioner’s argument that he exercised due diligence rests upon a
view of the evidence that was rejected; only if Petitioner’s testimony that he had
not received notice and had no knowledge of the indicated report was accepted
could we conclude that Petitioner exercised due diligence. There is no doubt that
maintenance of an indicated report on the Child Line registry has real and
substantial consequences for the individual identified as the perpetrator of child
abuse in the report. Accordingly, the General Assembly saw fit to provide a full 90
days for any person named as a perpetrator to seek amendment or expungement of
an indicated report. 23 Pa. C.S. § 6341(a)(2). Absent proof that the standard for
nunc pro tunc relief has been satisfied, this Court is prohibited from extending this
uncommonly long appeal period simply because, like the General Assembly, we
recognize the seriousness of the consequences of being named as a perpetrator of
child abuse in an indicated report maintained on the Child Line Registry.
             Petitioner has forfeited his right to seek amendment or expungement
due to his untimely appeal. Moreover, Petitioner has failed to make any showing
that would amount to evidence of an abuse of discretion by the Secretary.



                                           6
Accordingly, the Secretary’s October 8, 2015 order denying reconsideration of the
September 15, 2015 order issued by Bureau is affirmed.

                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge




                                       7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



T.C.,                                :
                 Petitioner          : CASE SEALED
                                     :
           v.                        : No. 2225 C.D. 2015
                                     :
Department of Human Services,        :
                 Respondent          :



                                ORDER


           AND NOW, this 19th day of July, 2016, the final Order of the
Secretary of the Department of Human Services denying reconsideration of the
order issued by the Department of Human Services, Bureau of Hearings and
Appeals in the above-captioned matter is AFFIRMED.



                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
