           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tioga County Department of                     :
Human Services,                                :
                      Petitioner               :    CASE SEALED
                                               :
                      v.                       :    No. 667 C.D. 2016
                                               :    Submitted: September 23, 2016
Department of Human Services,                  :
                      Respondent               :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge




OPINION
BY JUDGE COHN JUBELIRER                             FILED: December 28, 2016


       Tioga County Department of Human Services (CYS) petitions for review of
the March 29, 2016 Remand Order of the Department of Human Services
(Department),1 Bureau of Hearings and Appeals (Bureau), adopting the
Adjudication and Recommendation of an Administrative Law Judge (ALJ), which
sustained L.L.’s appeal and request to expunge an indicated report2 naming him as


       1
          The General Assembly recently redesignated the Department of Public Welfare as the
Department of Human Services. Section 103 of the Act of June 13, 1967, P.L. 31, added by the
Act of September 24, 2014, P.L. 2458, 62 P.S. § 103.
        2
          An “indicated report” is “a report of child abuse made . . . if an investigation by the
[D]epartment or county agency determines that substantial evidence of the alleged abuse by a
perpetrator exists based on any of the following”: available medical evidence, the child
protective service investigation, or an admission of the acts of abuse by the perpetrator. 23 Pa.
C.S. § 6303.
a perpetrator of sexual abuse of a child on the ChildLine Registry (Registry)3 under
the Child Protective Services Law (CPSL), 23 Pa. C.S. §§ 6301-6386, and
directing the Department to expunge the indicated report from the Registry.
Because we conclude that the Order of Remand directing the Bureau to hold a
hearing was not clear about what issues the hearing was to address, we vacate and
remand.
       On February 13, 2004, CYS received an oral report that alleged L.L. had
sexually abused a child during the years of 2000-2004. (Child Protective Service
Investigation Report (CY-48), R.R. at 8a.) CYS thereafter conducted a child
protective services investigation and generated the CY-48 report. (Id.) The report
also stated that the child gave a written statement to the Pennsylvania State Police,
and that L.L. admitted to the police that he engaged in the above conduct with the
child. (Id.) Based on its investigation, CYS filed an indicated report of child
abuse naming L.L. as the perpetrator of sexual abuse of the child. (R.R. at 9a.)
       By letter mailed March 19, 2004, the then-Department of Public Welfare
(DPW), Office of Children, Youth and Families (CYF), ChildLine & Abuse
Registry, notified L.L. that he was listed on the Registry as a perpetrator in an
indicated report of child abuse, that “[t]he report w[ould] remain on file in the state
and county offices until 23 years after the child’s birth[,]” and that he could appeal
the report, in writing, within 45 days from the date of the notice, if he believed the
report was inaccurate or not being maintained in accordance with the CPSL. (R.R.
at 11a.) The letter also stated that if the request was denied, “perpetrators may

       3
          The ChildLine Registry is a unit of the Department that operates a statewide toll-free
system for receiving and maintaining reports of suspected child abuse, along with making
referrals for investigation. See 55 Pa. Code § 3490.4. The ChildLine Registry is maintained in
accordance with the CPSL.

                                               2
have a right to a hearing.” (Id.) On April 26, 2004, L.L. timely appealed the
report, arguing that the abuse never happened and that “[t]he child recanted her
story a few days after it was reported and said that she had made everything up.”
(Appeal/Request, received May 3, 2004, R.R. at 12a.) L.L. also requested that the
status of the report be changed to unfounded and expunged from his record. (Id.)
By letter mailed August 16, 2004, CYF denied L.L.’s expungement request
because it determined the report was accurate and being maintained in accordance
with the law, and advised L.L. that he had the right to a hearing before the
Secretary of DPW, now, the Secretary of Human Services (Secretary), or its
designee, the Bureau, and if he so desired, he was asked to “please submit [his]
request in writing within 45 days of the date of th[e] letter.”       (R.R. at 14a
(emphasis in original).) L.L. did not request a hearing.
      On September 30, 2015, L.L. wrote to the Department requesting that the
case be expunged because state law requires that it be expunged on the child’s 23rd
birthday and the child is now more than 23 years old. (Appeal, received on Oct. 7,
2015, R.R. at 15a.) L.L. also stated that the case was dismissed in court, and that
“[t]he Judge ordered all records associated with the case be expunged.” Id. He
requested that the Department “please handle this matter and send [him] an
updated report.” (Id.) On November 13, 2015, the Acting Bureau Director of the
Bureau of Policy, Programs and Operations wrote a letter to the Director of the
Bureau apparently considering L.L.’s September 30, 2015 letter as a request for a
hearing. The Acting Bureau Director’s letter noted that “the request was not filed
within the 90-day time period” under 23 Pa. C.S. § 6341(a)(2), but directed that a
hearing be scheduled “on this request.” (R.R. at 5a (emphasis in original).)



                                         3
      On November 17, 2015, a Rule to Show Cause was issued by the Bureau
requiring L.L. to provide a signed response within 10 days to correct his improper
filing, as his September 30, 2015 letter did not have a signature (only a typed
signature), and this was a jurisdictional defect. (ALJ Adjudication, Dec. 2, 2015,
Finding of Fact (FOF) ¶¶ 1-5.) The Rule to Show Cause stated that failure to
respond within 10 days (by November 27, 2015) would result in dismissal of the
appeal. (FOF ¶ 5.) The Bureau received L.L.’s signed response on November 30,
2015, with a postmark date of November 28, 2015, which is one day late. (FOF ¶¶
6-7.) Because L.L. “improperly filed the appeal without a signature resulting in a
jurisdictional defect and failed to respond before the expiration of the . . . Rule to
Show Cause,” the ALJ recommended that L.L.’s appeal be dismissed; the Bureau
adopted the ALJ Adjudication and Recommendation in its entirety via order dated
December 4, 2015. (ALJ Recommendation, Dec. 2, 2015, R.R. at 18a; Order, Dec.
4, 2015, R.R. at 17a.)
      L.L. timely requested reconsideration of the order on December 11, 2015,
stating that “[t]he court ordered all materials from all agencies involved expunged”
and that “the [defendant] admitted in court that her whole story is fabricated. She
refused to testify and the judge dismissed the case.”              (Application for
Reconsideration Form, R.R. at 22a.) He cited to 55 Pa. Code § 3490.39, which
requires that the Registry expunge founded and indicated reports when the child
reaches 23 years of age or older, and he mentioned that he forgot to sign the
appeal. L.L. also submitted a signed letter, dated December 11, 2015, which
indicated the same as in his request for reconsideration. Additionally, he explained
that he recently moved back to Pennsylvania from out of state and that he had
coached all age groups from 5 to 12, both female and male, for the past 11 years


                                          4
without incident. (R.R. at 23a.) He also attached a State Police “Response for
Criminal Record Check” and a newspaper article stating that “the alleged
victim . . . has recanted, according to court documents.” (R.R. at 24a-25a.)
       On December 17, 2015, the Secretary granted L.L.’s request for
reconsideration and remanded his appeal to the Bureau, directed the Bureau “to
conduct a hearing on the merits of this matter,” and suggested that L.L. obtain legal
assistance with his appeal. (Order of Remand, R.R. at 26a.) A hearing was held
before a different ALJ on February 18, 2016. CYS appeared with one witness, a
CYS Supervisor, while L.L. did not appear at the hearing.
       CYS Supervisor testified that he worked for CYS since 1974. (Hr’g Tr. at
10.) He stated that CYS received notice of the hearing, and notice that L.L. wanted
to clear his record, but that CYS did not receive any copies of L.L.’s requests or
documents filed with the Department. (Id. at 11.) CYS Supervisor stated that
L.L.’s case was expunged on December 19, 2013, which included all records
related to the case, but not the indicated report.4 (Id. at 11-12.) CYS Supervisor
testified that L.L. did not meet the requirements for a nunc pro tunc appeal because
he appealed and requested a hearing 11 years too late. He further explained that
“[t]here is no statutory entitlement to have [L.L.’s] indicated report expunged
merely because the victim[-]child reached the age of 23.” (Id. at 22.)5 In the
alternative, CYS Supervisor recognized the Secretary’s “very broad authority to, at

       4
          We note that the Registry “will notify the county agency and the perpetrator of any
expunction of a report of child abuse, except when the expunction is the result of the Secretary’s
decision, in which case the county agency and all subjects shall be notified.” 55 Pa. Code §
3490.40(b).
        5
          The Department’s regulations provide that the Registry “shall expunge founded and
indicated reports when a subject child is 23 years of age or older[,]” with certain exceptions. 55
Pa. Code § 3490.39(a).

                                                5
any time, amend or expunge any record upon good cause shown” under 23 Pa. C.S.
§ 6341(a)(1), and that the burden is on L.L. (Id. at 23.) However, CYS Supervisor
testified that L.L. did not show good cause for expungement. (Id. at 23-24.) At the
end of CYS Supervisor’s testimony, the County Solicitor indicated that he never
received anything indicating that L.L. was asking for an appeal on the merits, and
he assumed L.L. was proceeding under 23 Pa. C.S. § 6341(a)(1), but the County
Solicitor did not know what the good cause was that L.L. was alleging. (Id. at 27.)
      In the adjudication, the ALJ construed the directive to conduct a hearing on
the merits as requiring it to determine “[w]hether the Department is maintaining an
indicated report of child abuse against . . . [L.L.] in a manner consistent with the
applicable regulations concerning an allegation of sexual abuse inflicted upon the
subject child.” (ALJ Remand Adjudication, Issue, R.R. at 30a.) This formulation
of the issue resulted in the burden resting on CYS to establish that the alleged child
abuse occurred. (FOF ¶ 9; ALJ Opinion, R.R. at 35a.) The ALJ acknowledged
that L.L. failed to appear, and that the subject child also did not appear or testify,
and that “CYS was unable to determine the subject child’s identity because all
evidence and information regarding the indicated report was expunged upon the
subject child turning the age of 23.” (FOF ¶ 8.) Nonetheless, because CYS could
not present evidence of the alleged sexual abuse that occurred between L.L. and
the subject child, the ALJ concluded that CYS did not meet its burden, and the
indicated report could not be maintained. (R.R. at 35a.) The ALJ noted CYS’s
arguments that the appeal was untimely filed and that L.L. was not entitled to nunc
pro tunc relief, but believed the Order of Remand directed only a review of the
“merits.” (R.R. at 35a.) Therefore, the ALJ recommended that the Department
sustain L.L.’s appeal and expunge the indicated report from the Registry. (Remand


                                          6
Recommendation, R.R. at 28a.) By Remand Order dated March 29, 2016, the
Bureau adopted the ALJ Recommendation in its entirety. (Remand Order, R.R. at
27a.) CYS now petitions this Court for review.6
       On appeal, CYS argues, inter alia, that the Bureau erred in scheduling a
hearing on the merits of the indicated report of child abuse more than 11 years after
the statutory deadline set forth in 23 Pa. C.S. § 6341(a)(2). CYS contends that
such action by the Bureau placed an impossible burden on it because it is not
possible for CYS to prove the facts of an indicated report of child abuse more than
11 years after the abuse occurred and after CYS complied with the CPSL to
destroy records relating to the abuse upon the child turning 23 years of age. CYS
also acknowledges in its brief that L.L. could have contested an indicated report of
child abuse under 23 Pa. C.S. § 6341(a)(1). However, CYS argues that because
L.L. did not appear at the hearing or present any evidence of good cause, which is
required under Section 6341(a)(1), he did not meet his burden, and that he
abandoned his appeal.
       In response, the Department asserts that L.L.’s request was treated as a
request for a hearing under 23 Pa. C.S. § 6341(a)(2), and based upon L.L.’s claims
that: he was incorrectly told that the records would be entirely expunged when the
victim-child reached age 23; the abuse never occurred; the victim-child recanted
her statement that she was abused; and that L.L. coached all age groups for the past
11 years without incident, the Department contends that the Secretary properly
remanded the matter to the Bureau for a hearing on the merits. The Department


       6
          This Court’s review considers whether the appellant’s constitutional rights have been
violated, an error of law was committed, or necessary findings of fact were unsupported by
substantial evidence. G.M. v. Dep’t of Pub. Welfare, 957 A.2d 377, 379 n.1 (Pa. Cmwlth. 2008).

                                              7
also recognizes that an individual’s right to his or her reputation requires due
process under the Pennsylvania Constitution, especially where one is seeking
expungement under the CPSL, and the Secretary takes this into consideration when
reviewing child abuse requests for reconsideration. The Department contends that
the Secretary properly exercised his discretion under 23 Pa. C.S. § 6341(a)(2), and
that it was unnecessary for the Secretary or Bureau to also evaluate whether L.L.
presented good cause under 23 Pa. C.S. § 6341(a)(1).
      We begin with a review of 23 Pa. C.S. § 6341(a)(1) and (a)(2), the statutory
language at issue. Section 6341(a)(1) of the CPSL provides, as follows:

      (a) General rule.--Notwithstanding section 6338.1 (relating to
      expunction of information of perpetrator who was under 18 years of
      age when child abuse was committed):

      (1) At any time, the secretary may amend or expunge any record in
      the Statewide database under this chapter upon good cause shown and
      notice to the appropriate subjects of the report. The request shall be in
      writing in a manner prescribed by the department. For purposes of this
      paragraph, good cause shall include, but is not limited to, the
      following:

      (i) Newly discovered evidence that an indicated report of child
      abuse is inaccurate or is being maintained in a manner inconsistent
      with this chapter.

      (ii) A determination that the perpetrator in an indicated report of
      abuse no longer represents a risk of child abuse and that no significant
      public purpose would be served by the continued listing of the person
      as a perpetrator in the Statewide database.

23 Pa. C.S. § 6341(a)(1) (emphasis added). Section 6341(a)(2) of the CPSL
provides, as follows:




                                         8
       (2) Any person named as a perpetrator, and any school employee
       named, in an indicated report of child abuse may, within 90 days[7] of
       being notified of the status of the report, request an administrative
       review by, or appeal and request a hearing before, the secretary to
       amend or expunge an indicated report on the grounds that it is
       inaccurate or it is being maintained in a manner inconsistent with this
       chapter. The request shall be in writing in a manner prescribed by the
       department.

23 Pa. C.S. § 6341(a)(2) (emphasis added). Thus, under Section 6341(a)(1), at any
time, the Secretary may amend or expunge a record, “upon good cause shown.”
However, under Section 6341(a)(2), there is a time period (now 90 days,
previously 45 days) within which a person named as a perpetrator may request a
review or hearing after having been notified of the status of the indicated report.
This Court has also held that a petitioner can request a hearing after the time period
only if he or she “can demonstrate the basis for a nunc pro tunc appeal.”8 C.S. v.
Dep’t of Pub. Welfare, 879 A.2d 1274, 1279 (Pa. Cmwlth. 2005) (petitioner was
entitled to file a nunc pro tunc appeal where he proved that he did not receive
notice that complied with the statute).
       In this case, L.L. was notified of the status of the indicated report of child
abuse by letter mailed March 19, 2004, and he did not thereafter request a hearing
within the statutory time period in which he could do so, then 45 days. Therefore,
he did not meet the time period in Section 6341(a)(2) to request a hearing to
expunge the indicated report “on the grounds that it is inaccurate or it is being

       7
          The 45-day deadline was set forth in 23 Pa. C.S. § 6341(a)(2). As of December 31,
2014, the law was amended, enlarging the time in which an alleged perpetrator must appeal a
refusal of a request for review from 45 days to 90 days.
        8
          “An appeal nunc pro tunc may be allowed where the delay in filing the appeal was
caused by extraordinary circumstances involving fraud or some breakdown in the administrative
process, or non-negligent circumstances related to the appellant, his or her counsel or a third
party.” H.D. v. Dep’t of Pub. Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000).

                                              9
maintained in a manner inconsistent with this chapter,” which would have placed
the burden of proof on CYS. Consequently, in order to receive relief under Section
6341(a)(2), L.L. would have the burden of demonstrating a basis for nunc pro tunc
relief.
          The Department argues in its brief that the Secretary had discretion to order
a hearing under Section 6341(a)(2), given the recognized and protected
constitutional right to reputation, if the Secretary “accepted L.L.’s understanding of
the circumstances to be correct: that L.L. was incorrectly told that the records
would be entirely expunged when the victim-child reached the age of 23, that a
civil judge had ordered the CY-48 expunged, and that the victim-child had
recanted . . . ,” and that it was unnecessary to evaluate the matter under Section
6341(a)(1), which requires good cause. (Dep’t’s Br. at 12.) This is incorrect.
Under Section 6341(a)(2), L.L. had the right to a hearing upon either a timely-filed
request, or if the request was untimely, upon demonstrating a basis for nunc pro
tunc relief. Otherwise, the Secretary had to evaluate the matter under Section
6341(a)(1), which does require good cause. However, in this case, because L.L.
did not appear at the hearing, there was no evidence to prove what were only
allegations in L.L.’s requests, namely what L.L. was told, the civil court order L.L.
alleges ordered the CY-48 expunged, or evidence that the victim-child had
recanted. Thus, there was no evidence for the Secretary to credit demonstrating
either a basis for nunc pro tunc relief or good cause.
          However, the Order of Remand directed that the Bureau conduct a hearing
“on the merits of this matter” without explanation. (Order of Remand, R.R. at
26a.) There was no citation to the CPSL, the Department’s regulations, or any
other case law indicating under what authority, precisely, the Secretary was acting.


                                            10
Therefore, it was unclear what issues the hearing was to address and, therefore,
which party was to bear the burden of proof at the hearing.
      Based on our discussion above, the Order of Remand should have specified
that the hearing would determine whether L.L. was entitled to nunc pro tunc relief
under Section 6341(a)(2) or whether he could show good cause under Section
6341(a)(1). Because the Order of Remand directing the Bureau to hold a hearing
was not clear, we are not satisfied that L.L. was aware that he bore the burden of
proof at the hearing to establish either his entitlement to nunc pro tunc relief or
good cause for the Secretary to expunge his records, and thus needed to present his
case at the hearing.
      Accordingly, we vacate the Remand Order of the Department, adopting the
Adjudication and Recommendation of the ALJ, and remand the case to the Bureau
to conduct a hearing in accordance with this opinion.



                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                        11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tioga County Department of           :
Human Services,                      :
                      Petitioner     :   CASE SEALED
                                     :
                     v.              :   No. 667 C.D. 2016
                                     :
Department of Human Services,        :
                      Respondent     :



                                   ORDER


      NOW, December 28, 2016, the March 29, 2016 Remand Order of the
Department of Human Services, Bureau of Hearings and Appeals (Bureau),
entered in the above-captioned matter, is VACATED, and the matter is
REMANDED to the Bureau to conduct a new hearing in accordance with the
foregoing opinion.


      Jurisdiction relinquished.


                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge
