              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Victorian Manor, LLC,                   :
                  Petitioner            :
                                        :   No. 174 C.D. 2015
            v.                          :
                                        :   Submitted: June 19, 2015
Department of Human Services,           :
                 Respondent             :


BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                 FILED: August 27, 2015


            Victorian Manor, LLC (Victorian Manor) petitions for review of the
January 20, 2015 order of the Pennsylvania Department of Human Services (DHS)
that denied Victorian Manor’s petition for reconsideration of DHS’s Bureau of
Hearings and Appeals’ (Bureau) final administrative action order dismissing
Victorian Manor’s appeal from its license revocation as untimely.
            Victorian Manor is a personal care home in Lehighton, Pennsylvania.
(Reproduced Record (R.R.) at 1a.) By letter dated August 29, 2014, DHS notified
Victorian Manor that, as a result of its licensing inspections on July 16, August 13,
and August 18, 2014, it was revoking Victorian Manor’s license to operate a personal
care home due to violations of DHS’s regulations. (ALJ’s Finding of Fact No. 1;
R.R. at 1a-2a.) The letter informed Victorian Manor of its right to appeal and stated
that an appeal must be received within ten calendar days from the date of the notice.
(ALJ’s Finding of Fact No. 2.) A Licensing Inspection Summary attached to this
letter detailed forty-three separate violations, Victorian Manor’s plan of correction for
each violation, DHS’s approval of each plan, and the status of each correction. This
Licensing Inspection Summary reveals that certain corrections were fully
implemented on or before August 18, 2014, while others were only partially
implemented or not implemented at all.
             The letter stated that “[t]he enclosed Licensing Inspection Summary
specifies plans of correction and dates by which corrections must be made. If you
choose to appeal, this plan of correction must be followed during your operation
pending your appeal.” (R.R. at 2a) (emphasis added). Victorian Manor received the
August 29, 2014 letter on September 2, 2014; on September 11, 2014, thirteen days
after DHS mailed the notice, Victorian Manor filed an appeal. (ALJ’s Findings of
Fact Nos. 3-5.)
             On September 22, 2014, the Bureau issued a rule to show cause,
ordering Victorian Manor to demonstrate why its appeal should not be dismissed as
untimely, to which Victorian Manor responded on October 2, 2014. In the response,
Jennifer Bachert (Bachert), Victorian Manor’s owner/administrator, acknowledged
that Victorian Manor’s appeal was untimely and that it was a miscommunication and
error on her part. Bachert stated that she mistakenly thought that an appeal did not
have to be filed, asserting that all but one of the corrections had been implemented
and approved by a DHS representative prior to the expiration of the ten-day appeal




                                           2
period.1 Bachert apologized in her letter and sought to rectify the situation so that
Victorian Manor’s certificate of compliance could be renewed. (R.R. at 48a-50a.)
              The Bureau scheduled a hearing before an administrative law judge
(ALJ) on November 20, 2014. At the hearing, Bachert reiterated that she did not
realize that she needed to file an appeal because a DHS representative had visited
Victorian Manor and approved the implemented corrective actions.                     Bachert
acknowledged that she was never informed by any DHS employee that it was not
necessary for Victorian Manor to file an appeal and that it was an oversight on her
part. (R.R. at 64a-65a.)
              By adjudication and recommendation dated December 12, 2014, citing 1
Pa. Code §35.20, the ALJ found that Victorian Manor’s appeal was untimely because
it was filed after the requisite ten-day filing period. The ALJ noted that Bachert
acknowledged that the untimely filed appeal was due to an error on her part. The
ALJ concluded that Victorian Manor presented no evidence to show the filing of the
late appeal was caused by fraud or its equivalent on the part of the administrative
authorities, a breakdown in the administrative process, or the non-negligent conduct
of Victorian Manor or someone acting on Victorian Manor’s behalf or the negligent
conduct of a third party. Accordingly, the ALJ recommended that Victorian Manor’s
appeal be dismissed as untimely filed.
              By final administrative action order dated December 22, 2014, DHS
adopted the ALJ’s adjudication and recommendation in its entirety. Victorian Manor
filed a petition for reconsideration with DHS. (R.R. at 71a-72a.) DHS denied



       1
        The record does not contain any evidence regarding a follow-up inspection and approval
by a DHS representative prior to the expiration of the ten-day appeal period.



                                              3
Victorian Manor’s petition for reconsideration by order dated January 20, 2015, for
the reasons stated by the Bureau in its final administrative action order.
             On appeal to this Court, Victorian Manor argues that DHS erred and
abused its discretion in denying its petition for reconsideration because Victorian
Manor demonstrated that it was entitled to an appeal nunc pro tunc.
             Initially, we note that our scope of review of an agency’s decision on a
reconsideration request is limited to determining whether the secretary abused his or
her discretion. J.B. Steven, Inc. v. Department of Transportation, 627 A.2d 278, 280
(Pa. Cmwlth. 1993). An abuse of discretion will only be found where the evidence
shows there was fraud, bad faith, capricious action, or abuse of power. Id.
             The applicable regulations provide that “[a]ctions taken by a subordinate
officer under authority delegated by the agency head may be appealed to the agency
head by filing a petition within 10 days after service of notice of the action.” 1 Pa.
Code §35.20. “The date of service shall be the day when the document served is
deposited in the United States mail . . . .” 1 Pa. Code §33.34. A party’s failure to file
a timely appeal of an administrative agency’s decision creates a jurisdictional defect,
and an extension of time to file an appeal cannot be granted as a matter of grace or
mere indulgence. C.E. v. Department of Public Welfare, 97 A.3d 828, 832 (Pa.
Cmwlth. 2014).
             An appeal nunc pro tunc may be allowed only where a delay in filing the
appeal is caused by extraordinary circumstances involving fraud or some breakdown
in the administrative process, or non-negligent circumstances related to an appellant
or her counsel or a third party. Russo v. Unemployment Compensation Board of
Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). A party seeking an appeal nunc
pro tunc must also show that the period of time between the deadline and the actual



                                            4
filing of the appeal was short and that the appellee will not be prejudiced by the
delay. C.E., 97 A.3d at 832. Further, an appeal nunc pro tunc may be allowed where
a party has been “unintentionally misled by officials as to the proper procedure to be
followed.” Monroe County Board of Assessment Appeals v. Miller, 570 A.2d 1386,
1388 (Pa. Cmwlth. 1990).
             Victorian Manor relies on Miller to argue that it is entitled to nunc pro
tunc relief. In Miller, a property owner filed an appeal from a board of assessment’s
(Board) property assessments with the common pleas court within sixty days of entry
of the Board’s order. The appeal was untimely, because it was required to be filed
within thirty days of entry of the Board’s order. However, the Board’s notices of the
property assessments that were sent to the property owner incorrectly stated that an
appeal must be filed within sixty days.
             On appeal to this Court, the Board argued that the common pleas court
lacked jurisdiction to hear the appeal because it was untimely filed. We stated that an
appeal nunc pro tunc may be granted when officials unintentionally mislead a party
as to the correct procedure that must be followed. Because the property owner in
Miller “relied on the erroneous statement contained on the Board’s notice of decision
and timely filed her appeal within that period,” we determined that the common pleas
court did not abuse its discretion in hearing the appeal. Id. at 1388.
             In its brief on appeal, Victorian Manor asserts that DHS’s confirmation
that all violations were corrected misled Victorian Manor into believing that an
appeal was no longer necessary.           However, during her testimony, Bachert
acknowledged that no DHS employee misled her into believing that she did not need
to file an appeal and that it was an oversight on her part for failing to file the appeal
on time. And, while Bachert testified before the ALJ that all corrective actions had



                                            5
been implemented and approved by a DHS representative prior to the expiration of
the ten-day appeal period, when she responded to the rule to show cause on October
2, 2014, which was approximately three weeks after expiration of the appeal period,
she indicated that at least one corrective action remained outstanding at that time.
             More importantly, DHS’s August 29, 2014 revocation letter specifically
stated that the correction plans must be followed pending the appeal, and it in no way
suggested that an appeal need not be filed. Bachert acknowledged that she realized
that an appeal was needed after re-reading the revocation letter. There is no evidence
of any fraud, breakdown in the administrative process, or non-negligent
circumstances that caused the appeal to be untimely filed. To assert otherwise on
appeal is contrary to Bachert’s testimony and the record evidence.            Moreover,
Victorian Manor failed to present any evidence that DHS’s denial of reconsideration
was the result of any fraud, bad faith, capricious action, or abuse of power. J.B.
Steven.
             Accordingly, we affirm.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                           6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Victorian Manor, LLC,                  :
                  Petitioner           :
                                       :    No. 174 C.D. 2015
            v.                         :
                                       :
Department of Human Services,          :
                 Respondent            :



                                   ORDER


            AND NOW, this 27th day of August, 2015, the order of the
Pennsylvania Department of Human Services, dated January 20, 2015, is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
