Opinion
No. 1982 C.D. 2011
04-10-2012
W. W., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
W.W. petitions for review from an order of the Department of Public Welfare (Department) dismissing his appeal to expunge his name from the ChildLine Registry as untimely under 23 Pa. C.S. §6341(a)(2) (imposing a 45-day appeal period), and denying his request to proceed nunc pro tunc, or "now for then." Upon review, we affirm.
The ChildLine Registry operates as 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). Notice of the determination must be given to the perpetrators of the child abuse indicating that their ability to obtain employment may be adversely affected. Id.
Nunc pro tunc, a Latin phrase meaning "now for then," denotes an order "[h]aving retroactive legal effect through a court's inherent power." Black's Law Dictionary 1174 (9th ed. 2009). "When an order is signed 'nunc pro tunc' ... it means that a thing is now done which should have been done [as of an earlier] date." Id. (citing 35A C.J.S. Federal Civil Procedure §370 (1960)).
In May 2009, the Northampton County Children, Youth, and Families Division (CYF) mailed a notice to W.W.'s record address informing him that he was listed as a perpetrator in an indicated report of child abuse. The notice informed W.W. he had 45 calendar days to file an appeal of this determination.
Two days after the notice was mailed, W.W.'s wife (Y.W.) received it. At that time, W.W. was not living with his wife and family due to the reported abuse. Reproduced Record (R.R.) at 11l [item eleven at page designated as lower case "el"]. However, that same day, Y.W. informed W.W. that he received a notice from CYF, and explained its contents.
Pennsylvania Rules of Appellate Procedure require "[e]xcept as provided in Rule 2174 ... the pages of ... the reproduced record ... shall be numbered separately in Arabic figures and not in Roman numerals: ... [and followed] by a small a, thus 1a, 2a, 3a, etc., and followed in any supplemental reproduced record by a small b, thus 1b, 2b, 3b, etc." Pa.R.A.P. 2173.
Here, the pagination of the reproduced record does not comply with Rule 2173, or Rule 2174. Rather, in a confusing manner, counsel for W.W. sequentially numbered the entries in her table of contents, and labeled the pages of each entry alphabetically, but excluded the first page of each entry from the alphabetic designation, thus 2, 2a, 2b, etc. In W.W.'s reproduced record, the transcript of the referee's hearing is the eleventh entry on the table of contents and contains 29 pages. Thus, the transcript of the referee's hearing can be found at pages 1111bb of the nonconforming reproduced record.
In response to this news, W.W. expressed to his wife that they may need to hire an attorney. However, W.W. did not attempt to obtain the CYF notice to read it himself. Furthermore, at that time neither W.W. nor Y.W. took any action with regard to the notice. To that end, neither person consulted an attorney, notified the Department of W.W.'s new address, or filed an appeal.
After waiting over a year, Y.W. mailed an appeal letter signed by W.W. to the Department. A hearing ensued to consider the appeal's timeliness, and alternatively, whether W.W. could proceed nunc pro tunc, or "now for then."
Representing himself at the hearing, which was held telephonically before an administrative law judge (ALJ), W.W. presented the testimony of Y.W., and testified on his own behalf. Y.W. testified she received the CYF notice, which explained that the Department listed W.W. on the ChildLine Registry as a perpetrator of an indicated report of child abuse, two days after it was mailed. Id. at 11h-11i. Y.W. further testified the notice came to her residence, but at that time, W.W. was not living with her or the children. Id. at 11h. According to Y.W., W.W. moved out of his family home because of the Department's investigation in this matter, and he informed the Department of his new address upon moving. Id. at Additionally, Y.W. stressed that since the time of the alleged abuse, the victim, W.W.'s stepdaughter, recanted her story, and the county district attorney dropped all of the pending criminal charges. Id. at 11j.
Throughout his testimony, W.W. asserted an ignorance of the law, and an imperfect recollection of the details of his situation. Id. 11t-11u. W.W. testified he was not living at his former address when the notice was sent because he moved to his sister's house. Id. at 11o. W.W. claimed that if he would have received the notice letter at his sister's house, then he may have appealed in a timely manner. Id. at 11t, 11x. Nonetheless, W.W. stated that when Y.W. received the notice she explained it to him in terms he could understand, and he suggested they give it to their lawyer. Id.
Thereafter, the ALJ determined W.W. did not timely file an appeal of the Department listing him as a perpetrator of an indicated report of child abuse. Furthermore, the ALJ concluded W.W. was not entitled to proceed nunc pro tunc, or "now for then." Thus, the ALJ recommended dismissing W.W.'s appeal, which the Department affirmed. Upon W.W.'s motion for reconsideration, the Department upheld its initial decision. W.W. petitions for review.
On appeal, W.W. contends the Department erred in denying his appeal to proceed nunc pro tunc, or "now for then," because the CYF mailed his notice to the wrong address. W.W. further argues that CYF's negligence constituted an administrative breakdown warranting relief. Specifically, W.W. contends that our holding in H.D. v. Department of Public Welfare, 751 A.2d 1216 (Pa. Cmwlth. 2000) requires this Court allow him to proceed nunc pro tunc or "now for then."
Our review is limited to determining whether the record supports the necessary findings of fact, whether the constitutional rights were violated, or whether errors of law were made. C.F. v. Dep't of Pub. Welfare, 804 A.2d 755 (Pa. Cmwlth. 2002). Whether an appealing party is entitled to a nunc pro tunc, or "now for then" appeal is a legal conclusion fully reviewable by this Court. H.D. v. Dep't of Pub. Welfare, 751 A.2d 1216 (Pa. Cmwlth. 2000). --------
The failure to timely appeal an administrative agency's action is a jurisdictional defect that is not easily remedied. Julia Ribaudo Senior Servs. v. Dep't of Pub. Welfare, 600 Pa. 641, 969 A.2d 1184 (2009); H.D. A nunc pro tunc, or "now for then" appeal may only be heard where extraordinary circumstances involving fraud or an administrative breakdown, or other non-negligent circumstances cause the delay in filing. J.A. v. Dep't of Pub. Welfare, 873 A.2d 782 (Pa. Cmwlth. 2005). When considering a nunc pro tunc, or "now for then," appeal, an administrative official's negligent actions are equivalent to fraud, and may constitute grounds for relief. Sewickley Valley Hosp. v. Dep't of Pub. Welfare, 550 A.2d 1251 (Pa. Cmwlth. 1988). Additionally, to be permitted to file an appeal nunc pro tunc, or "now for then," a party must establish: (1) he filed the appeal shortly after learning of, and having an opportunity to address the untimeliness; (2) the delay is short in duration; and (3) the adverse party will not suffer prejudice from the delay. J.A.
In H.D., the Department mailed an alleged perpetrator notice of the registration of an indicated report of child abuse to his parent's address, at which he did not reside. Before mailing the notice, the Department made no effort to verify H.D.'s address, but relied solely on the information submitted by the alleged victim. As a result, H.D. never received the mailed notice. Therefore, this Court held the Department's actions, sending H.D.'s notice to the incorrect address and failing to verify H.D.'s address, constituted an administrative breakdown. Cf. Redenbach v. Dep't of Transp., Bureau of Driver Licensing, 817 A.2d 1230 (Pa. Cmwlth. 2003) (unlike a driver's license suspension appeal, where the licensee is required to notify the Department of Transportation of a change in address, 75 Pa. C.S. §1515, an alleged perpetrator under the Child Protective Services Law, 23 Pa. C.S. §§6301-86, is under no such burden).
In addition to establishing an administrative breakdown, H.D. also established that upon learning of the untimeliness of his appeal from a prospective employer who searched the ChildLine Registry, he immediately acted to rectify his delay and exercise his appeal rights. Moreover, the Department did not assert it would be prejudiced by H.D. appealing nunc pro tunc, or "now for then." Therefore, this Court remanded to allow H.D. to appeal the Department's determination nunc pro tunc, or "now for then."
Here, similar to H.D., CYF mailed W.W. a notice of a Department determination to the incorrect address. However, the similarities between H.D. and this case end there. Unlike, H.D., W.W. learned about the CYF notice and its content within two days of its issuance. F.F. No. 5. At that time, W.W. knew the significance of the notice, and suggested to Y.W. that they seek legal advice. F.F. No. 6. However, instead of immediately acting on his rights, W.W. waited over a year to appeal the Department's action. F.F. No. 10; see Wess v. Dep't of Pub. Welfare, 462 A.2d 955 (Pa. Cmwlth. 1983) (nunc pro tunc, or "now for then" relief may be granted only where a petition is filed within a reasonable time). Therefore, regardless of any negligence attributable to CYF or the Department, it is evident W.W. did not address the matter in a timely manner upon learning of his right and possible need to appeal. See H.D. As such, W.W. failed to establish grounds to proceed nunc pro tunc, or "now for then." See J.A.
It appears W.W. filed his appeal after such a long delay because the victim more recently recanted her accusations. The victim's recantation occurred in August 2009. However, without explanation, W.W. waited nearly an additional year before acting on this information. R.R. at 4f, 5. Therefore, not only did W.W. delay after receiving notice of the Department's action, which alone is sufficient grounds to deny an application for nunc pro tunc, or "now for then" relief, but he further postponed his appeal after learning that the victim recanted, and the county district attorney withdrew the pending criminal charges.
Furthermore, contrary to W.W.'s assertion, the county district attorney's decision to withdraw the pending criminal charges does not affect the Department's proceedings. Such a result occurs, in part, because the burden of proof in an administrative proceeding is significantly less than the state's burden of proof in a criminal action. Gomez v. Dep't of Pub. Welfare, 533 A.2d 826 (Pa. Cmwlth. 1987). While a prosecutor may not be able to prove a person guilty of a crime beyond a reasonable doubt, that person may be found at fault under a less rigorous standard applied in civil matters. Therefore, despite a defendant achieving a favorable resolution in a criminal matter, such outcome does not require an equally favorable result in a related administrative action. See id. See e.g., R.A. v. Dep't of Pub. Welfare, ___ A.3d ___ (Pa. Cmwlth., No. 650 C.D. 2011, filed January 9, 2012). As such, although a victim recanting her allegations may justify a district attorney's decision to withdraw pending criminal charges, it does not require the Department to allow W.W. to proceed nunc pro tunc, or "now for then" in this civil expungement proceeding. Thus, W.W.'s argument is without merit.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge Judge Cohn Jubelirer concurs in the result only. ORDER
AND NOW, this 10th day of April, 2012, the order of the Department of Public Welfare is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge