                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.K., Jr.,                                      :   SEALED CASE
                              Petitioner        :
                                                :
                      v.                        :
                                                :
Department of Human Services,                   :   No. 489 C.D. 2015
                      Respondent                :   Submitted: September 25, 2015


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: December 30, 2015

               J.K., Jr. (J.K.), pro se, petitions this Court for review of the Department
of Human Services’ (DHS)1 Bureau of Hearings and Appeals’ (BHA) January 22,
2015 order dismissing J.K.’s request to expunge his indicated report2 from the
ChildLine3 & Abuse Registry (ChildLine Registry). The sole issue for this Court’s


       1
        Effective November 24, 2014, Department of Public Welfare was officially renamed the
Department of Human Services.
      2
        An “[i]ndicated report” is

               a report of child abuse . . . if an investigation by [DPW] or county
               agency determines that substantial evidence of the alleged abuse by a
               perpetrator exists based on any of the following: (i) [a]vailable
               medical evidence[;] (ii) [t]he child protective service investigation[;
               or,] (iii) [a]n admission of the acts of abuse by the perpetrator.
23 Pa.C.S. § 6303(a) (emphasis omitted); see also 55 Pa. Code § 3490.4. “Substantial evidence” is
defined in the Child Protective Services Law (Law) as “[e]vidence which outweighs inconsistent
evidence and which a reasonable person would accept as adequate to support a conclusion.” 23
Pa.C.S. § 6303(a) (emphasis omitted); see also 55 Pa. Code § 3490.4.
         3
           “ChildLine” is defined as “[a]n organizational unit of [DHS] which operates a Statewide
toll-free system for receiving reports of suspected child abuse established under [S]ection 6332 of
the [Law] (relating to establishment of Statewide toll-free telephone number), refers the reports for
review is whether DHS erred by dismissing J.K.’s 2014 expungement appeal.4 After
review, we affirm.
               On October 23, 2002, DHS mailed J.K. a notice advising him that,
following an investigation of a report made to the Lackawanna County Office of
Youth & Family Services (OYFS),5 he was listed on the ChildLine Registry as a
perpetrator of child abuse (Notice). The Notice informed J.K. that he could request to
have the indicated report amended or destroyed if he believed that it was inaccurate
or not being legally maintained. See Reproduced Record (R.R.) at 4a. The Notice
further read: “ALL REQUESTS MUST BE MADE IN WRITING WITHIN 45 DAYS FROM
                                   6
THE DATE OF THIS NOTICE.”              R.R. at 4a. Because J.K.’s appeal was postmarked
December 31, 2002, the appeal was dismissed as untimely filed. J.K. requested a
hearing and, on April 25, 2003, BHA upheld the dismissal since J.K.’s appeal was
untimely and he failed to satisfy the nunc pro tunc appeal requirements. J.K. sought
reconsideration by the Secretary of Human Services (Secretary), which was granted
on May 13, 2003. By Final Order issued April 7, 2004, the Secretary upheld BHA’s
dismissal. J.K. did not appeal from the Final Order, and his name remained on the
ChildLine Registry.
               During the summer of 2014, when J.K. and his fiancé, with whom he
resided, were attempting to gain emergency custody of her grandchildren, J.K.’s
background check revealed that his name was on the ChildLine Registry.                            By
September 5, 2014 letter, J.K. requested information regarding the 2002 abuse

investigation and maintains the reports in the appropriate file. . . .” 55 Pa. Code § 3490.4 (emphasis
omitted).
        4
          J.K. stated the issue as follows: “Was the oversight of using nunc pro tunc in its correct
purpose, a direct hindrance of having false allegations of child abuse expunged back in 2002?
Ultimately, the government unit decided to dismiss the appeal with res judicata claiming
untimeliness.” J.K. Br. at 5 (italics added).
        5
          OYFS was formerly known as Lackawanna County Children & Youth Services.
        6
          An amendment to Section 6341(a)(2) of the Child Protective Services Law, 23 Pa.C.S. §
6341(a)(2), effective December 31, 2014 extended the period to 90 days.
                                                  2
allegations. On October 9, 2014, J.K. faxed a letter to BHA declaring his innocence
of the 2002 charges. BHA deemed J.K.’s letter a request to have his name expunged
from the ChildLine Registry.7 A hearing was held on December 17, 2014 before an
administrative law judge (ALJ), at which OYFS moved for dismissal because the
appeal: (1) was untimely, (2) did not satisfy the nunc pro tunc requirements, and (3)
was heard and fully adjudicated in 2003.8 The ALJ recommended that J.K.’s appeal
be “Dismissed for Res Judicata.” R.R. at 24a. By January 22, 2015 order, BHA
adopted the ALJ’s recommendation. J.K. sought reconsideration by the Secretary,
which he denied by March 10, 2015 order. J.K. appealed to this Court.9
               J.K. argues that his appeal delay was caused by OYFS using his
incorrect address on its investigative report and the Notice.10 However, the record
does not reflect that J.K. raised this issue to DHS.                 Except for a few limited


       7
            Effective December 31, 2014, Section 6341(a)(1) of the Law provides in pertinent part
that, “[a]t any time, the [S]ecretary may amend or expunge any record in the [ChildLine Registry] . .
. upon good cause shown and notice to the appropriate subjects of the report.” 23 Pa.C.S. §
6341(a)(1). Good cause could include newly-discovered evidence of an indicated report’s
inaccuracy or inconsistency and/or a determination that the perpetrator named on an indicated report
no longer represents a risk and no significant public purpose would be served by continuing to
maintain his or her name on the ChildLine Registry. See 23 Pa.C.S. § 6341(a)(1)(i)-(ii).
         8
            OYFS counsel stated at the hearing that since OYFS’ file had been expunged and
investigating caseworkers were no longer on staff, in order to properly present this case, it had to
reconstruct it from another case-related court file and, thus, it was prejudiced by J.K.’s extreme
delay. See R.R. at 48a-51a, 62a-63a.
         OYFS representative Rachel Green testified that OYFS records are expunged when the
victim reaches 23 years of age. At that same time, the victim’s name and the allegations are
removed from the ChildLine Registry. However, the perpetrator’s name remains on the ChildLine
Registry for life, unless it is expunged on appeal. See R.R. at 76a-78a.
         9
           “Our ‘scope of review in expunction proceedings is limited to a determination of whether
constitutional rights were violated, whether errors of law were committed, or whether necessary
findings of fact are supported by substantial evidence.’” K.R. v. Dep’t of Pub. Welfare, 950 A.2d
1069, 1073 n.6 (Pa. Cmwlth. 2008) (quoting E.D. v. Dep’t of Pub. Welfare, 719 A.2d 384, 387 (Pa.
Cmwlth. 1998)).
         10
            J.K. avers that if OYFS had correctly addressed the documents, “this issue could’ve been
resolved back in 2002.” J.K. Br. at 11. J.K. does not specify in what manner the address OYFS
used in 2002 was incorrect.
                                                 3
circumstances not relevant here, Pennsylvania Rule of Appellate Procedure 1551(a)
states in pertinent part: “No question shall be heard or considered by the court which
was not raised before the government unit . . . .” Pa.R.A.P. 1551(a). “The reasoning
behind this rule is to provide the agency the opportunity to correct its own error, as
well as to give us the benefit of its expertise and reasons for its actions.” Ardolino v.
Pa. Sec. Comm’n, 602 A.2d 438, 442 (Pa. Cmwlth. 1992). Because J.K. failed to
raise this issue before DHS in either his 2002 or 2014 appeals, he waived it. Thus,
this Court is precluded from addressing it.
             J.K. also contends that his 2002 appeal was untimely because at that
time he permitted his ex-wife to handle his paperwork.           However, res judicata
precludes this Court from reviewing that issue.         “[T]echnical res judicata and
collateral estoppel are both encompassed within the parent doctrine of res judicata[.]”
Weney v. Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 949, 954
(Pa. Cmwlth. 2008).

             Under the doctrine of technical res judicata, often referred
             to as claim preclusion, ‘when a final judgment on the merits
             exists, a future suit between the parties on the same cause of
             action is precluded.’ [Henion v. Workers’ Comp. Appeal
             Bd. (Firpo & Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwlth.
             2001)]. In order for technical res judicata to apply, there
             must be: ‘(1) identity of the thing sued upon or for; (2)
             identity of the cause of action; (3) identity of the persons
             and parties to the action; and (4) identity of the quality or
             capacity of the parties suing or sued.’ Id. at 366. Technical
             res judicata may be applied to bar ‘claims that were actually
             litigated as well as those matters that should have been
             litigated.’ Id. (emphasis added). ‘Generally, causes of
             action are identical when the subject matter and the ultimate
             issues are the same in both the old and the new
             proceedings.’ Id.
             The doctrine of collateral estoppel, often referred to as issue
             preclusion, ‘is designed to prevent relitigation of an issue in
             a later action, despite the fact that the later action is based
             on a cause of action different from the one previously
                                              4
              litigated.’ Pucci v. Workers’ Comp[.] Appeal B[d.]
              (Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa.
              Cmwlth. 1998). Collateral estoppel applies where:
                   (1) the issue decided in the prior case is identical to
                   the one presented in the later case; (2) there was a
                   final judgment on the merits; (3) the party against
                   whom the doctrine is asserted was a party or in
                   privity with a party in the prior case and had a full
                   and fair opportunity to litigate the issue; and (4) the
                   determination in the prior proceeding was essential
                   to the judgment.
              Id. at 648.

Weney, 960 A.2d at 954.
              At the 2014 ALJ hearing, OYFS offered its documents related to the
2002 ChildLine Registry expungement without objection from J.K.; thus, they were
admitted into evidence. When asked by the ALJ if he had seen BHA’s April 25, 2003
decision dismissing his 2002 appeal as untimely, J.K. responded that he “never did
paperwork for the house” because his “ex-wife . . . did all of that.” R.R. at 57a.
When asked if he signed the request to reconsider that decision, J.K. explained: “This
is what -- I understand that this part is my fault, because I let her do all of this. She --
she wound up -- she had a brain aneurysm, and she lost part of her memory, and she
insisted she had to do all of this.”11 R.R. at 60a. He further related: “So, she’s the

       11
           Notably, in J.K.’s 2015 request for reconsideration of BHA’s decision, he admitted: “Yes
I did sign a document. I am not disputing this. However, I thought that it had been handled and
resolved.” R.R. at 27a (emphasis added). J.K.’s admission is supported by the fact that his
signatures on both his 2003 and 2015 reconsideration requests appear nearly identical. See R.R. at
26a; see also Supplemental Reproduced Record at 101. Moreover, J.K. admits in his brief filed
with this Court that he, rather than his ex-wife, handled the 2002 appeal:
                On October[] 23, 2002, [OYFS] released a report indicating me of
                child abuse. Once I had this report, I filed an appeal postmarked
                December[] 31, 2002. I was denied the appeal, stating I was 24 days
                past the 45 days allotted amount of time to file. I continued to
                appeal this matter, until I had heard no more, and thought that it was
                resolved.
J.K. Br. at 9 (emphasis added); see also J.K. Br. at 6.
                                                5
one that mostly did the paperwork and everything for me. . . . Her doctors said there
was brain damage after the operation, and I wanted to believe in her.” R.R. at 67a.
He also offered that he had no hesitation in submitting his name for the 2014
background check because he “had no idea that this was -- . . . I have never been in
trouble in my life. And [Detective] Chris Kolcharno told me back then that there’s
nothing,” because the victim “told too many stories.” R.R. at 72a. Other than the
explanation regarding his ex-wife’s control over his paperwork, J.K. did not offer any
information or documentation to distinguish the circumstances of his 2002 appeal
from his 2014 appeal. J.K.’s 2014 appeal was just a later version of his untimely
2002 appeal.
               The ALJ held in his January 22, 2015 recommendation:

               In this case, [J.K.] filed an untimely appeal of [his]
               ChildLine Final Notice on December 31, 2002. BHA
               conducted a timeliness hearing to determine if the appeal
               should be allowed to proceed nunc pro tunc. The issue of
               timeliness was clearly identified at the hearing and was the
               only issue discussed. On April 25, 2003, BHA issued a
               Final Administration Action Order dismissing the appeal as
               untimely filed. Again, timeliness was the only issue
               addressed by BHA. In the prior hearing, timeliness was the
               only issue identified at the hearing and was the only issue
               decided in the Final Administration Action Order. In the
               current appeal, timeliness is again the only issue on appeal
               over the exact same issue as previously decided by [BHA].
               Therefore, res judicata applies because there was a prior-
               adjudication on the merits of the previous matter, which
               was timeliness.
               . . . . [J.K.] argued that the current issue is different than the
               issue decided by BHA on April 25, 2003; therefore, res
               judicata should not apply. However, [J.K.] filed an
               untimely appeal on December 31, 2002 and the subsequent
               appeal, filed by [J.K.] on October 9, 2014, remains
               untimely. As such, the issue of timeliness remains
               unchanged. BHA issued a Final Administration Action
               Order and decided the issue of timeliness on April 25, 2003.

                                               6
               Since the issues are in fact the same, collateral estoppel
               applies and the appeal should be dismissed.
               Accordingly, [J.K.’s] appeal should be dismissed due to the
               application of [r]es [j]udicata.

R.R. at 33a-34a (italics added). BHA adopted the ALJ’s recommendation.
               The record before us makes clear that J.K.’s 2002 and 2014 appeals from
the October 23, 2002 Notice seek to have his name expunged from the ChildLine
Registry, and both BHA reviews addressed whether J.K.’s appeals were timely, or
could be accepted nunc pro tunc.12 Because J.K.’s 2014 appeal is identical to his

       12
           Even if J.K.’s claim was not precluded, we would be compelled to affirm BHA’s
dismissal on the grounds that he failed to meet the requirements for a nunc pro tunc appeal. “It is
well established that the failure to timely appeal an administrative agency’s action is a jurisdictional
defect. The time for taking an appeal therefore cannot be extended as a matter of grace or mere
indulgence.” J.C. v. Dep’t of Pub. Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998) (citation
omitted).

               A perpetrator must request that an indicated report of child abuse be
               amended or expunged within forty-five (45) days of being notified of
               the indicated report. 23 Pa.C.S. § 6341(a)(2). An exception allows
               perpetrators to proceed nunc pro tunc where he or she can
               demonstrate that the delay in requesting an appeal was caused by
               extraordinary circumstances involving fraud, a breakdown in the
               administrative processes, or non-negligent circumstances related
               to the petitioner, his counsel or a third party.
Beaver Cnty. Children & Youth Servs. v. Dep’t of Pub. Welfare, 68 A.3d 44, 48 (Pa. Cmwlth. 2013)
(emphasis added).

               A party seeking permission to file a nunc pro tunc appeal . . . needs to
               establish that: (1) [he] filed the appeal shortly after learning of and
               having an opportunity to address the untimeliness; (2) the elapsed
               time is one of very short duration; and (3) the respondent will not
               suffer prejudice due to the delay.
Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091, 1094 n.4 (Pa. Cmwlth. 2013) (quoting J.A. v.
Dep’t of Pub. Welfare, 873 A.2d 782, 785 n.4 (Pa. Cmwlth. 2005)). “The question of whether there
are unique and compelling facts, which establish a non-negligent failure to timely appeal, is a legal
conclusion to be drawn from the evidence and is reviewable on appeal.” J.A., 873 A.2d at 785 n.5.
        According to BHA’s April 25, 2003 adjudication, J.K. provided no reason for his untimely
appeal. Although he provided testimony about why his 2014 appeal was so late, that testimony did
not establish that he did not timely receive the Notice or know of the 2002 appeal deadline, or that
                                                   7
2002 appeal, which was fully adjudicated with J.K.’s participation, BHA properly
dismissed his 2014 appeal as precluded by res judicata. Accordingly, BHA’s order is
affirmed.



                                           ___________________________
                                           ANNE E. COVEY, Judge




his delay was caused by any “extraordinary circumstances involving fraud, a breakdown in the
administrative processes, or non-negligent circumstances.” Beaver Cnty. Children & Youth Servs.,
68 A.3d at 48. Thus, J.K. did not meet the requirements to have his appeal heard nunc pro tunc in
either 2002 or 2014.


                                               8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.K., Jr.,                              :   SEALED CASE
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Department of Human Services,           :   No. 489 C.D. 2015
                      Respondent        :



                                      ORDER

             AND NOW, this 30th day of December, 2015, the Department of Human
Services’ Bureau of Hearings and Appeals’ January 22, 2015 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
