Opinion
No. 763 C.D. 2014
12-04-2014
D.M., Petitioner v. Department of Public Welfare, Respondent
CASE SEALED
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
On April 7, 2014, the Secretary of the Department of Public Welfare (DPW) issued a final order denying D.M.'s (Petitioner) appeal seeking to expunge an indicated report of child abuse from the ChildLine Registry where the report is maintained pursuant to the Child Protective Services Law. The Secretary denied Petitioner's appeal as untimely. For the reasons that follow, we affirm.
Act of December 19, 1990, P.L. 1240, as amended, 23 Pa. C.S. §§ 301-6384. The ChildLine 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).
On February 27, 2014, an Administrative Law Judge (ALJ) appointed by the Bureau of Hearings and Appeals, as the designee of the Secretary of DPW, held a hearing on timeliness of Petitioner's appeal and whether sufficient grounds existed to permit Petitioner to proceed as though his appeal had been filed within the period allowed by law. Following the hearing, the ALJ issued a March 24, 2014 adjudication recommending that the appeal be denied, which the Secretary adopted in an April 7, 2014 order denying the appeal as untimely. In the ALJ's adjudication, the ALJ made the following findings of fact, which were adopted by the Secretary:
1. On May 1, 2013, ChildLine sent [Petitioner] a letter notifying the [Petitioner] that he is listed on the statewide central register of child abuse as a perpetrator in an indicated report of child abuse.
2. The May 1, 2013 letter notified [Petitioner] of the right to request the indicated report be amended or destroyed and instructed [Petitioner] a request must be made within 45 days of the date of the notice.
3. On May 31, 2013, [Petitioner] filed an appeal of the May 1, 2013 notice requesting a review of the findings prior to requesting a hearing.
4. On August 12, 2013, ChildLine issued a letter notifying [Petitioner] they have completed their review of [Petitioner's] request to expunge the report of child abuse and believe the report is accurate and being maintained in a manner consistent with the Child Protective Services Law (CPSL).
5. The August 12, 2013 letter notified [Petitioner] that if it was [Petitioner's] desire to have a hearing a request should be submitted in writing within 45 days of the date of the letter.
6. The August 12, 2013 letter was sent to [Petitioner's] attorney at 1845 Walnut Street, Twenty-fourth Floor, Philadelphia, PA 19103.
7. On September 30, 2013, [Petitioner] mailed an appeal of the August 12, 2013 notice.
8. The September 30, 2013 appeal was postmarked 49 days after the mailing of the August 12, 2013 notice.
9. On February 27, 2014, the undersigned conducted a telephone timeliness hearing.(ALJ Adjudication, Findings of Fact ¶¶1-10.) Petitioner sought reconsideration, which was denied by May 1, 2014 order of the Secretary of DPW. Petitioner appealed to this Court, arguing that his appeal should be treated as though it were filed on time.
10. At the hearing, no evidence was presented to show the delay in filing of the late appeal was caused by fraud or its equivalent on the part of administrative authorities, a breakdown in the administrative process, or the non-negligent conduct of [Petitioner] or someone acting on his behalf or the negligent conduct of a third party.
Our standard of review is limited to determining whether constitutional rights have been violated, whether errors of law have been committed, and whether necessary findings of fact are supported by substantial evidence or "evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion." 23 Pa. C.S. § 6303; G.V. v. Department of Public Welfare, 91 A.3d 667 (Pa. 2014). The question of whether a petitioner has established entitlement to an appeal nunc pro tunc, or beyond the timeframe allowed for an appeal, is a legal conclusion to be drawn from the evidence in the record and is fully reviewable by this Court. H.D. v. Pennsylvania Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000). --------
The failure to appeal an administrative agency's action in a timely manner is a jurisdictional defect and, as such, the time for taking an appeal cannot be extended as "a matter of grace or mere indulgence." Bass v. Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979); DiJohn v. Unemployment Compensation Board of Review, 687 A.2d 1213, 1215 (Pa. Cmwlth. 1997). However, the time for taking an appeal may be extended if the failure to timely file the appeal was caused by fraud, a breakdown in the administrative process, or the non-negligent conduct of an Petitioner or an Petitioner's counsel, all of which have been found to constitute extraordinary circumstances. C.S. v. Department of Public Welfare, 879 A.2d 1274, 1279 (Pa. Cmwlth. 2005); Martin Media v. Pennsylvania Department of Transportation, 727 A.2d 140, 142 (Pa. Cmwlth. 1999).
Petitioner's argument that his appeal should be treated as though it was timely is two-fold: (1) Petitioner's counsel incorrectly recorded the deadline to appeal, immediately took action to correct his mistake when he realized the error, and submitted the appeal only four (4) days beyond the appeal date; and (2) Petitioner was never personally served with the order denying his request to expunge the indicated report, as only Petitioner's counsel was served. Petitioner's arguments are without merit.
The failure of Petitioner's counsel to properly file Petitioner's appeal within the deadline is not an extraordinary circumstance. Our Supreme Court has made clear that the negligence of "a [petitioner's] counsel, or an agent of [petitioner's] counsel, has not been considered a sufficient excuse for the failure to file a timely appeal." Bass, 401 A.2d at 1135. Where represented by counsel, a party is deemed bound by the acts of his lawyer, and cannot avoid the consequences of the acts or omissions of this freely selected agent; this is true in the administrative or civil context, at every level of our legal system, and has been held applicable in instances where the consequences are most dire. Coleman v. Thompson, 501 U.S. 722, 752-754 (1991) (counsel's failure to file timely notice of appeal in state court did not excuse procedural default so as to permit habeas review of death sentence); Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001) (counsel's failure to anticipate possible mail delay where rule proscribes that appeal must be received by prothonotary on specific date does not constitute non-negligent circumstances allowing for an appeal nunc pro tunc); In re Appeal of Tenet HealthSystems Bucks County, LLC, 880 A.2d 721, 728 (Pa. Cmwlth. 2005) (counsel's reliance upon Purdon's rather than official printing of the law did not constitute extraordinary circumstances allowing for nunc pro tunc appeal); Freeman v. Bonner, 761 A.2d 1193, 1196 (Pa. Super. 2000) (neither the failure of court reporter to timely transcribe notes of testimony nor counsel's absence from the jurisdiction constitute grounds for nunc pro tunc appeal); In re Interest of C.K., 535 A.2d 634 (Pa. Super. 1987) (denying appeal nunc pro tunc from termination of parental rights where delay was caused by counsel's absence due to mother's illness and failure to make substitute counsel available). Petitioner's counsel's delay in filing Petitioner's appeal within the required time period because of a clerical error does not provide a basis for granting the appeal as though it had been filed on time. J.C. v. Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998).
Likewise, DPW's failure to personally serve Petitioner with notice of its denial of his request to expunge the indicated report does not provide a basis for granting Petitioner's appeal as though it had been timely filed. Petitioner was represented by counsel. (May 27, 2013 Letter to DPW from Jonathan Krinick, Esq., R.R. at 11a.) Where a party is represented by counsel, the party receives sufficient notice when counsel is served. 2 Pa. C.S. § 507; 1 Pa. Code § 33.33. There is no dispute that Petitioner's counsel in the instant matter was served.
The order of the Secretary of DPW is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 4th day of December, 2014, the final Order of the Secretary of the Department of Public Welfare in the above-captioned matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge