IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carbon County Children and Youth : Services, :

Petitioner :

:

v. : No. 1 C.D. 2018

: SUBMITTED : September 12, 2018

Department of Human Services, : Respondent : CASE SEALED

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: September 26, 2018

Carbon County Child ren and Youth Services (CYS) petitions for

review of a December 19, 2017, order of the Secretary of the Department of Human

Services (Department) denying as untimely CYS’s application for recons ideration

of the November 21, 2017, decision of the Bureau of Hearings and Appeal s (Bureau)

granting the request to expunge indicated reports of child abuse against alleged

perpetrators C.S. and A.S

. As a threshold matter, we note that CYS’s January 2,

20 18, appeal was timely from the denial of its application for reconsideration, but

was not timely from the November 21 order on the merits. 1 Therefore the only issue

before us is whether the Department abused its discretion in denying reconsideration.

1 A party that fails to file a petition for review of the Bureau’s final order within the thirty

- day

appeal period loses the abil ity to challenge the merits of the decision. See Keith v. Dep’t of Pub.

Welfare , 551 A.2d 333, 335 (Pa. Cmwlth. 1988).2

Bec ause we agree that CYS’s application for reconsideration was untimely

, the

denial was proper and, therefore

, we affirm.

The relevant background of this matter is as follows. On November 21,

2017, the Bureau issued an order sustaining the appeals of the alleged perpetrators

and directing the Department to expunge the indicated reports of child abuse against

them. In addition to indicating that any appeal to the Commonwealth Court had to

be filed wi thin thirty days from November 21, the order provided as follows:

Either party to this proceeding has fifteen (15)

calendar days from the date of t his decision t o request reconsideration by the Secretary of the Department. . . .

The application/petition shall be addressed to the

Secretary, but delivered to the Director , Bureau of

Hearings and Appeals , P.O. Box 2675, Harrisburg,

Pennsylvania, 17105

- 2675, and must be received in the

Bureau . . . within fifteen (15) calendar days from the date

of this Order . This action does not stop the time w ithin

which an appeal must be filed to Commonwealth Court.

(November 21, 2017, Order) (emphasis in original). Accordingly, with the

November 21 mailing date trigger ing the beginning of the fifteen

- day period, the

app lication for reconsideration had to be received in the Bureau by December 6. 2

Subsequently, CYS mailed an application for reconsideration to the

Bureau on December 5, 2017, attaching a certificate of mailing reflecting that date.

(Application for Reconsi deration

, C ertificate of M ailing; Reproduced Record “R.R.”

at 76a.) T he Bureau received CYS’s application for reconsideration on December 7

and time stamped it accordingly

. ( Id

. at p. 1; R.R. at 72a.) On December 19, the

Secretary denied CYS’s application for reconsideration as untimely

. On appeal,

2 Colonial Manor Pers. Care Boarding Home v. Dep’t of Pub. Welfare , 551 A.2d 347, 350

(Pa. Cmwlth. 1988) (holding that the mailing date triggers the beginning of the appeal period)

.3

CYS argues that its December 5 certificate of mailing rendered its application for

reconsideration timely. Its position is without merit.

Section 35.241(a) of the General Rules of Adm inistrative Practice and

Procedure provides that an application for reconsideration may be filed by a party to

a proceeding “within 15 days, or another period as may be expressly provided by

statute applicable to the proce eding , after the issu anc e of an ad judication or other

final order by the agency.” 1 Pa. Code § 35.241(a). Additionally, Section 31.11 of

the same Rules provides:

Pleadings, submittals or other documents required or

permitted to be filed under this part, the regulations of the

agency or a ny other provision of law shall be received for

filing at the office of the agency within the time limits, if

any

, for the filing. The date of receipt at the office of the

agency and not the date of deposit in the mails is

determinative

.

1 Pa. Code § 31.1 1 (emphasis added). See also Colonial Manor Pers. Care Boarding

Home v. Dep’t of Pub. Welfare , 551 A.2d 347, 350 (Pa. Cmwlth. 1988) (holding that

the day upon which the petition is received is controlling for purposes of time

computation for an applicatio n for reconsideration). CYS could not rely upon the

date it mailed its application for reconsideration to establish its timeliness

.

Accordingly the Department’s denial was appropriate, and certainly not an abuse of

discretion and, therefore, we affirm.

_____________________________________ BONNIE BRIGANCE LEADBETTER,

Senior J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carbon County Children and Youth : Services, :

Petitioner :

:

v. : No. 1 C.D. 2018

: Department of Human Services, : Respondent : CASE SEALED

O R D E R

AND NOW, this 26 th day of September

, 201 8

, the order of the Secretary

of the Department of Human Services is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER,

Senior J udge