Opinion
No. 722 C.D. 2011
03-26-2012
E. A. In Re: D.K., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
E.A. In Re: D.K. (E.A.) petitions for review of the March 23, 2011, final order of the acting Secretary of the Department of Public Welfare (DPW) upholding the order of DPW's Bureau of Hearings and Appeals (Bureau). The Bureau's order adopted in their entirety the adjudication and recommendation of a DPW administrative law judge (ALJ) that an appeal filed by E.A. under the provisions of the Child Protective Services Law (Law) be denied as untimely. We affirm.
23 Pa.C.S. §§6301 - 6385.
On May 26, 2009, DPW's Office of Children, Youth, and Families (CYF) mailed a notice to E.A. notifying him that he was named as a perpetrator in an indicated report of child abuse. (Finding of Fact No. 1.) The notice was mailed to E.A.'s home address and E.A. received the notice. (Findings of Fact Nos. 2, 3.)
In pertinent part, section 6303(a) of the Law defines a "perpetrator" as "[a] person who has committed child abuse and is a parent of a child...." 23 Pa.C.S. §6303(a).
Section 6303(a) of the Law defines "indicated report" as follows:
[A] child abuse report made pursuant to this chapter if an investigation by the county agency or [DPW] determines that substantial evidence of the alleged abuse exists based on any of the following:
23 Pa.C.S. §6303(a). The CY-48 in this case states that it is an "indicated report" because "[c]hild's statements regarding the abuse were clear, credible and consistent" and "[the p]erpetrator admitted touching child's vagina because child told him she had an itch there." (Certified Record (C.R.) Item No. 2 at 5.)(1) Available medical evidence.
(2) The child protective service investigation.
(3) An admission of the acts of abuse by the perpetrator.
Section 6303(b)(1) of the Law defines "child abuse," in pertinent part, as "[a]n act or failure to act by a perpetrator which causes ... sexual abuse or sexual exploitation of a child under 18 years of age." 23 Pa.C.S. §6303(b)(1)(ii).
On June 11, 2009, E.A. submitted an appeal asking DPW to review the findings against him setting forth his home address. (Findings of Fact Nos. 4, 5.) In August of 2009, E.A. was arrested, and he remained incarcerated pending trial because he could not post bail. (Findings of Fact Nos. 6, 7.) E.A. did not contact the United States Postal Service to have his mail forwarded to his jail address. (Finding of Fact No. 8.)
On August 18, 2009, bail was set at 10% of $50,000.00. (C.R. Item No. 4 at 11.)
On October 9, 2009, DPW mailed E.A. a notice that its administrative review had been completed and that he would remain listed as a perpetrator in the indicated report of child abuse. (Finding of Fact No. 9.) The October 9, 2009, notice was delivered to E.A.'s home address. (Findings of Fact Nos. 10, 11.)
On March 26, 2010, E.A. was released from jail. (Finding of Fact No. 12.) E.A. received the October 9, 2009, notice after he returned to his home address and his statements that he did not receive the notice after he was released from prison were deemed not credible. (Finding of Fact No. 13.) On April 13, 2010, E.A. filed a request for a hearing. (Finding of Fact No. 14.)
On March 24, 2010, E.A. was adjudged not guilty of the criminal charges. (C.R. Item No. 4 at 14.)
At the August 3, 2010, hearing before the ALJ, E.A. testified that he cannot read or write. (N.T. 8/3/10 at 20.) E.A. stated that he had been living at his home address "[f]orty (40) some years" and conceded that he did not notify the post office that he would not receive mail at that address while he was in jail. (Id. at 23.) E.A. testified that he never received the October 9, 2009, notice that DPW sent him. (Id. at 21, 43.) However, E.A.'s counsel acknowledged that he was aware of the October 9, 2009, notice from DPW because he had received a fax of the notice at his office on October 16, 2009, while he was representing E.A. in the criminal proceedings but before he was representing E.A. in this civil matter. (Id. at 27-29.) E.A.'s counsel interposed a motion to compel production of CYF's records to explain why the notice had been faxed to him and to demonstrate CYF's awareness that E.A. was incarcerated at the time the notice was sent. (Id. at 6-7, 10, 29, 32-33, 35-36, 46.) The ALJ denied the motion but kept the record open for an additional five days to receive evidence in support of E.A.'s claims. (Id. at 46-48, 50-51.)
"N.T. 8/3/10" refers to the transcript of the referee's hearing.
On August 9, 2010, E.A.'s counsel filed a petition to reopen the hearing alleging that E.A.'s mother had received the notice at E.A.'s home and faxed it to his counsel's office where a secretary had placed the fax in an active file and in a duplicate file. (C.R. Item No. 4 at 3.) Accordingly, in the petition, E.A. admitted that CYF sent the notice to his home on or about October 9, 2009. (Id.)
On August 30, 2010, the ALJ issued an adjudication specifically rejecting E.A.'s testimony that he did not receive the notice until after he was released from prison (Finding of Fact No. 15), stating:
In this case, [E.A.] was also incarcerated and alleged that he did not receive actual notice which caused his late filing of the request for a hearing. 55 Pa. Code §3490.105a(c) states that "notification [denying the request to expunge an indicated report] from the Secretary will be sent by first-class mail." The regulations do not state that actual notice is required. On October 9, 2009, [CYF] mailed a notice to [E.A.]'s address of record. Nothing in the record shows that [E.A.] made any effort to have his mail forwarded or to ensure that he received his mail while incarcerated. No evidence was presented that there was an administrative breakdown or fraud that caused the delay in filing the request for a hearing. [E.A.]'s incarceration alone is insufficient to grant [E.A.]'s request for a hearing nunc pro tunc.(Adjudication at 4.) Accordingly, having concluded that E.A. failed to provide good cause to allow the appeal to proceed nunc pro tunc, the ALJ recommended that E.A.'s appeal be dismissed as untimely.
On September 10, 2010, the Bureau issued an order adopting the adjudication and recommendation in their entirety. On October 12, 2010, the acting Secretary granted E.A.'s motion for reconsideration of the Bureau's order. On March 23, 2011, the acting Secretary issued a final order upholding the Bureau's order. E.A. then filed the instant petition for review.
This Court's scope of review in expunction proceedings is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, and whether necessary findings of fact are supported by substantial evidence. D.T. v. Department of Public Welfare, 873 A.2d 850, 852 (Pa. Cmwlth. 2005). We will not reverse an ALJ's decision regarding the issuance of a subpoena absent an abuse of discretion. 1st Steps International Adoptions, Inc. v. Department of Public Welfare, 880 A.2d 24, 34 (Pa. Cmwlth. 2005).
In this appeal, E.A. claims that the acting Secretary erred in upholding the Bureau's order; E.A. maintains that he is entitled to an appeal nunc pro tunc and that the ALJ abused his discretion in denying E.A.'s motion to issue a subpoena to compel CYF to produce its records and allow E.A. to demonstrate that CYF had his correct address. We do not agree.
It is well settled that the failure to timely appeal an administrative agency's action is a jurisdictional defect. J.C. v. Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998). Therefore, the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Id. An appeal nunc pro tunc may be allowed only where 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 counsel, or a third party. Id. The question of whether the appellant established entitlement to an appeal nunc pro tunc is a legal conclusion to be drawn from the evidence in the record and is fully reviewable by this court. H.D. v. Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000).
One seeking permission to file an appeal nunc pro tunc has the burden of establishing 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 very short duration; and (3) the appellee is not prejudiced by the delay. J.C., 720 A.2d at 197.
In this appeal, E.A. asserts that he is entitled to an appeal nunc pro tunc because CYF's mailing of the notice to his home address rather than the jail when CYF had reason to believe that he was in jail awaiting trial constitutes an administrative breakdown or negligence. Likewise, E.A. contends that the ALJ should have issued the subpoena to obtain the CYF records showing that CYF was aware that he was in jail. However both of E.A.'s claims are based upon the faulty premise that CYF was required to send the October 9, 2009, notice to E.A. in the jail while he was there awaiting trial.
E.A. does not raise a claim based on the non-negligent conduct of himself, his counsel, or a third party to support his contention that he is entitled to an appeal nunc pro tunc. J.C.
The fundamental requirements of due process, notice and an opportunity to be heard, are equally applicable to administrative proceedings as they are to judicial proceedings. Higgins v. Public School Employes' Retirement System, 736 A.2d 745, 753 (Pa. Cmwlth. 1999) (citation omitted). Constitutionally adequate notice of an administrative action is notice that is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id. This requirement is satisfied when proper notice of the administrative action is mailed to an interested party's last known address. Id.; Yarbrough v. Department of Public Welfare, 478 A.2d 956, 957-58 (Pa. Cmwlth. 1984). See also 55 Pa. Code §3490.105a(c) ("The notification from the Secretary will be sent by first-class mail.") Importantly, personal receipt of the notice is not required when the notice was mailed to the party's last known address. Milford Township Board of Supervisors v. Department of Environmental Resources, 644 A.2d 217, 219 (Pa. Cmwlth. 1994).
The record in this case demonstrates that CYF sent the October 9, 2009, notice to E.A.'s residence of over 40 years at which he had received the May 26, 2009, notice naming him as a perpetrator in the indicated report and from which, on June 11, 2009, he sent the appeal asking DPW to review the findings against him. Contrary to E.A.'s assertion, DPW was not required to send the October 9, 2009, notice to the jail, where E.A. was temporarily housed. Higgins; Milford; Yarbrough. Therefore, the ALJ did not abuse his discretion in failing to issue a subpoena to provide evidence to support such an assertion. The record further shows that the October 9, 2009, notice was received at that address, and that it was faxed to the attorney representing E.A. in the related criminal proceedings, a week after the notice was mailed by DPW and well within the 45-day appeal period.
This Court's opinion in H.D. does not compel a different result. In that case, on February 16, 1996, DPW sent a notice to the perpetrator at his parents' home address notifying him that a report of abuse by the perpetrator's natural daughter had been destroyed. The February 16, 1996 notice did not require the perpetrator to take any further action or notify DPW of his current address. On June 5, 1996, CYS sent an indicated report of abuse by the same accuser to the perpetrator at the same address. In 1998, the perpetrator appealed the June 5, 1996 notice and requested a hearing, alleging that he did not receive the notice because he did not live at his parents' home address at that time. At the hearing, the perpetrator alleged that DPW erred in relying on the address supplied by the accuser and failed to make any effort to verify his current address before mailing the notice. This Court agreed, noting that although the accuser was the perpetrator's natural daughter who may have reliable information on his residence, it was DPW's duty to make a reasonable effort to verify his current address before mailing the notice and DPW admittedly did not make any effort in this regard. H.D., 751 A.2d at 1220. In contrast, as noted above, in this case the October 9, 2009, notice was sent to E.A.'s residence of over 40 years at which he had received the May 26, 2009, notice naming him as a perpetrator in the indicated report and from which, on June 11, 2009, he sent the appeal asking DPW to review the findings against him before requesting a hearing. Thus, H.D. is inapposite and does not control the disposition of this appeal. --------
In sum, the record demonstrates that DPW complied with due process by providing E.A. constitutionally adequate notice in accord with DPW regulations, and that the delay is not attributable to extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances related to E.A., his counsel, or a third party. Therefore, the acting Secretary properly determined that E.A. is not entitled to an appeal nunc pro tunc.
Accordingly, the acting Secretary's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 26th day of March, 2012, the March 23, 2011, final order of the acting Secretary of the Department of Public Welfare is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge