C.A., Petitioner v. Department of Human Services, Respondent
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
The Secretary of the Department of Human Services (DHS) issued a final order on June 7, 2016 upholding the February 29, 2016 order of the Bureau of Hearings and Appeals (Bureau) adopting the February 25, 2016 Recommendation of the Administrative Law Judge (ALJ) to dismiss as untimely C.A.'s (Petitioner) appeal to expunge an indicated report of child abuse maintained on the Child Line Registry pursuant to the Child Protective Services Law (CPS Law).1 Before this Court, Petitioner argues that he demonstrated he was entitled to nunc pro tunc relief and that the Bureau erred in adopting the ALJ's recommendation because it was based on a misapplication of law. Washington County Children and Youth Services (CYS) filed a brief in this matter as an Intervenor 2 and argue that the Secretary's final order should be affirmed because the ALJ properly concluded that Petitioner failed to establish that non-negligent conduct by Counsel caused the delay in filing Petitioner's appeal.3 We affirm.
In Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), our Supreme Court stated that the time period for taking an appeal cannot be extended as “a matter of grace or mere indulgence,” but that in instances where there has been extraordinary circumstances involving fraud or some breakdown in the court's operation the time period for taking an appeal should be extended. Id. at 1135. The Court held in Bass that the non-negligent conduct of the staff of appellant's counsel, which gave rise to the request before the Court to file an appeal beyond the time period permitted, likewise warranted an exception to the bar against untimely appeals. Id. In reaching its holding that non-negligent conduct of counsel or counsel's staff may permit an untimely appeal, the Court reasoned that such relief was appropriate where the untimeliness was corrected within a very short time and where the prejudice to the other side was minimal. Id. at 1136. The Court clarified its holding in Bass in Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996), stating, “the rule in Bass is that where an appeal is not timely because of non-negligent circumstances, either as they relate to [petitioner] or his counsel, and the appeal is filed within a short time after the [petitioner] or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and [respondent] is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.” Cook, 671 A.2d at 1131.
Petitioner argues that the ALJ did not address each prong of the test derived from Bass to evaluate whether an appeal should be allowed to proceed nunc pro tunc and that the failure to do so was error. See J.C. v. Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998) (“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) [respondent] is not prejudiced by the delay”). Petitioner further argues that he has sufficiently carried his burden to establish nunc pro tunc relief. First, Petitioner contends that the appeal was filed within a day of Counsel discovering that the appeal was untimely; second, Petitioner contends that the delay was only 43 days after the time to appeal had expired; and third, Petitioner contends that because the hearing in this matter would not have taken place until after Petitioner's criminal trial, which took place in May 2016, DHS was not prejudiced by the delay.
Contrary to Petitioner's argument, whether or not Petitioner was able to establish that the appeal was filed within a short time of learning of the untimeliness, the elapsed period was of short duration, and that DHS was not prejudiced by the delay was not determinative of whether Petitioner could file his appeal late. Instead, Petitioner was first required to show that the circumstances leading to the late appeal warranted an exception to the bar against late appeals. In re Appeal of Tenet HealthSystems Bucks County, LLC, 880 A.2d 721, 728 n.15 (Pa. Cmwlth. 2005) (“prompt action by a litigant or his lawyer is needed in order for an appeal nunc pro tunc to be allowed․.However, it must first be found that the failure to file [timely] was non-negligent”). “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 [petitioner], his counsel or a third party.” J.C., 720 A.2d at 197.
In the instant matter, the ALJ first concluded that Petitioner's appeal had been untimely. (See ALJ Recommendation at 3-4 “In order to file a timely appeal, [Petitioner] needed to send an appeal postmarked no later than October 11, 2015. However, [Petitioner's] request for a hearing was faxed November 23, 2015”). Next, the ALJ examined whether the factual circumstances giving rise to the late appeal fell within one of the exceptions permitting nunc pro tunc relief, concluding:
Here, [Counsel] for [Petitioner] stated that [Petitioner] provided him a copy of the July 13, 2015 notice, but [Counsel] mistakenly put the wrong appeal deadline date in his calendar. [Petitioner's Counsel] contended there is no prejudice to [DHS] as there are criminal charges pending in this case. However, [Petitioner's Counsel] must first show that the delay in filing the appeal was caused by a breakdown in the administrative process, fraud on the part of administrative authorities, or by non-negligent circumstances in this case, and I do not find [Petitioner's Counsel] has made any such showing. Thus, any lack of prejudice to [DHS] is not relevant in this case. As a result, I do not find sufficient grounds have been shown to allow the appeal to proceed nunc pro tunc in this case.
(ALJ Recommendation at 4.)
Petitioner contends that it is “uncontested that the only reason for delay was a typographical error in [Counsel's] calendaring system.” (Petitioner's Brief at 10.) What is contested, however, is whether a calendaring error amounts to non-negligent conduct that warrants nunc pro tunc relief. The ALJ concluded a calendaring error by counsel did not warrant nunc pro tunc relief. This Court held in Lawrence County v. Pennsylvania Labor Relations Board, 469 A.2d 1145 (Pa. Cmwlth. 1983), that “mere neglect or administrative oversight of counsel cannot justify allowance of an appeal nunc pro tunc.” Id. at 1149. In In re Appeal of Tenet, we held that counsel's reliance on an appeal deadline erroneously published in Purdon's Statutes, an unofficial statutory compilation published by West Publishing Company and regularly relied upon by practicing attorneys, did not amount to non-negligent conduct of counsel warranting nunc pro tunc relief. In re Appeal of Tenet, 880 A.2d at 728.
In contrast, this Court held in Tony Grande, Inc. v. Workmen's Compensation Appeal Board (Rodriquez), 455 A.2d 299 (Pa. Cmwlth. 1983), that the hospitalization of a petitioner's counsel for unexpected and serious cardiac problems ten days into a twenty day appeal period warranted nunc pro tunc relief. Id. at 300. Similarly, we held in Perry v. Unemployment Compensation Board of Review, 459 A.2d 1342 (Pa. Cmwlth. 1983), that petitioner had established a non-negligent happenstance warranting nunc pro tunc relief where an affidavit showed that counsel had filed an appeal one business day beyond the appeal period because counsel's staff member had car trouble and arrived at the post office after closing time. Id. at 1343.
We conclude that Counsel's error here is like Lawrence County and In re Appeal of Tenet rather than Rodriquez or Perry. Exceptions to allow for the filing of a late appeal due to non-negligent conduct “is meant to apply only in unique and compelling cases in which the [petitioner] has clearly established that [the petitioner] attempted to file an appeal, but unforeseeable and unavoidable events precluded [the petitioner] from actually doing so.” Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001) (holding that “delays in the U.S. mail are both foreseeable and avoidable” and that petitioner's failure to anticipate a delay did not warrant nunc pro tunc relief). Counsel's calendaring error was not the type of unavoidable happenstance that can intrude into life, thwarting our best intentions and, in an analysis of whether nunc pro tunc relief is appropriate, establishes non-negligent conduct that warrants relief; rather, Counsel's calendaring entry was a mere administrative oversight that does not justify the extraordinary remedy of nunc pro tunc relief.
Accordingly, we find no error in the ALJ's analysis and conclude that the Secretary did not err in issuing her final order upholding the order of the Bureau adopting the ALJ's recommendation to dismiss the appeal.
AND NOW, this 24th day of February, 2017, the final Order of the Secretary of the Department of Human Services upholding the order issued by the Department of Human Services, Bureau of Hearings and Appeals in the above-captioned matter is AFFIRMED.
1. 23 Pa. C.S. §§ 6301-6384. The Child Line 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).
2. The Department of Human Services informed this Court by November 15, 2016 letter that it was aware CYS had filed a brief and that it did not intend to file a brief as the Respondent.
3. Our scope of review is limited to determining whether constitutional rights have been violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Bedford County Children and Youth Services v. Department of Public Welfare, 613 A.2d 48, 50 (Pa. Cmwlth. 1992). In child abuse expunction proceedings, the Bureau, as the Secretary's designee, is the ultimate finder of fact, and the ultimate arbiter of the weight to be assigned to the evidence presented. B.B. (B.L.) v. Department of Public Welfare, 17 A.3d 995, 1000 (Pa. Cmwlth. 2011).
JAMES GARDNER COLINS, Senior Judge