IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.W., :

Petitioner :

:

v. : CASE SEALED

:

Department of Human Services, : No. 44 C.D. 2015

Respondent : Submitted: December 31, 2015

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: February 24, 2016 

Petitioner S.W. (Petitioner) petitions for review of an order of the 

Secretary (Secretary) of the Department of Human Services (Department). The 

Secretary adopted the December 3, 2014 recommended decision of an 

Administrative Law Judge (ALJ), denying Petitioner’s request to appeal 

a 2001 decision of the Department confirming the identification of Petitioner as a 

perpetrator in an indicated report of child abuse and advising that ChildLine2

would maintain the report. Petitioner also filed with the Department an

 

1

This case was assigned to the opinion writer on or before January 31, 2016, when Judge 

Leadbetter assumed the status of senior judge.

2 ChildLine is defined as “[a]n organizational unit of [the Department] which operates a 

Statewide toll-free system for receiving reports of suspected child abuse established under 

Section 6332 of the Child Protective Services Law,” 23 Pa. C.S. § 6332. 
2

application/petition for reconsideration of that final order, which the Department 

denied by decision dated December 24, 2014. Petitioner filed a petition for review

with this Court on January 16, 2015, which this Court deemed to constitute a 

timely appeal only of the Secretary’s denial of reconsideration. Accordingly, the 

order denying reconsideration of the Secretary’s order is the only order we now 

review.

We briefly note the facts as found by the ALJ. On 

September 20, 2001, the Department sent a letter to Petitioner advising her that she 

was listed on ChildLine as a child abuse perpetrator. That letter also informed 

Petitioner of her right to request, within forty-five days of the date of the notice, 

that the indicated report of child abuse be amended or destroyed. Petitioner 

apparently requested the Department to review and expunge the indicated report, 

and, on December 3, 2001, the Department issued a letter notifying Petitioner that 

it believed the report was accurate and that it would maintain the report. That 

letter also advised Petitioner that she had the right to request, within forty-five days 

of the date of the notice, a hearing on the matter. The Department sent the letter to 

2046 North Gratz Street, 1st Floor, Philadelphia, PA 19121-1512.

On October 21, 2014, Petitioner mailed an appeal of the 

December 3, 2001 notice. The ALJ conducted a hearing and issued a 

recommended decision. The ALJ considered Petitioner’s own testimony that the 

North Gratz Street address to which the Department mailed the notice advising 

Petitioner of her hearing rights was the address at which she resided between 2000 

and 2004. Petitioner offered no other evidence concerning her delay in filing an 

appeal, such as any alleged fraud or breakdown of the administrative process, or 
3

other factors that might support a review of Petitioner’s untimely request for a 

hearing on the indicated report of child abuse.

After noting the pertinent regulations regarding timely appeals, the 

ALJ considered whether any grounds existed to support an appeal nunc pro tunc. 

The ALJ identified the salient factors that could support the consideration of an 

appeal on such basis, but he noted that Petitioner testified that she remembered 

nothing from 2001 and neither admitted nor denied receiving the 

December 3, 2001 notice. Additionally, the ALJ reiterated the fact that the address 

to which the notice was mailed was Petitioner’s residence at the time. The ALJ 

recommended that Petitioner’s appeal be denied as untimely and that nunc pro tunc

relief was not appropriate. Petitioner requested reconsideration, which the 

Secretary denied.

Petitioner raises the following issues: (1) whether the Secretary 

abused her discretion in concluding that the evidence in the record does not support 

a nunc pro tunc appeal; and (2) whether the Secretary abused her discretion in 

applying the “Mailbox Rule.”3

Our review of an order denying reconsideration of an administrative 

order is limited to considering whether the Secretary abused her discretion. 

Payne v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 928 A.2d 377, 379 

(Pa. Cmwlth. 2007). An abuse of discretion in the denial of reconsideration of an 

administration decision occurs only where the decision to deny reconsideration is 

 

3

The so-called Mailbox Rule is a common law evidentiary tool which provides a 

presumption to the party raising it that where evidence indicates that mail has been deposited in a 

post office or mail box and addressed correctly to a recipient with adequate postage, the mail has 

reached the party to whom it was addressed. In re rural Route Neighbors, 960 A.2d 856, 861 

(Pa. Cmwlth. 2008), appeal denied, 989 A.2d 10 (Pa. 2010).
4

manifestly unreasonable or is based upon bad faith, fraud, capricious action, or an 

abuse of power. Id.

Petitioner contends that the Secretary abused her discretion by 

concluding that the Mailbox Rule applied in the first instance. Petitioner cites 

decisions of this Court where we have held that the Mailbox Rule does not apply 

when a party seeking to employ the rule has not provided sufficient evidence that a 

letter or notice was mailed in the usual course of business. Dep’t of Transp. v. 

Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Cmwlth. 1986). Petitioner asserts 

that the ALJ should not have applied the Mailbox Rule because the Department did 

not provide any evidence of mailing. Petitioner asserts that the Secretary abused 

her discretion in discounting Petitioner’s testimony that she did not remember 

receiving the December 3, 2001 notice.

In response, the Department contends that, given the limited standard 

of review over a decision denying reconsideration and in light of Petitioner’s 

burden in seeking nunc pro tunc review, the record in this matter reveals no abuse 

of discretion. The record fails to support a conclusion that the Secretary’s decision 

was manifestly unreasonable or was the result of partiality, prejudice, bias, or ill 

will. While Petitioner alleges that the ALJ and Secretary erred as a matter of law 

in applying the Mailbox Rule, we agree with the Department that the record does 

not reveal any factors that could lead the Court to conclude that the Secretary’s 

decision to deny reconsideration was manifestly unreasonable or the result of 

partiality, prejudice, or ill will. Consequently, we need not accept Petitioner’s 
5

invitation to inquire into the legal correctness of the Secretary’s decision on the 

merits.4

Accordingly, we conclude that the Secretary did not abuse her 

discretion in denying Petitioner’s application/petition for reconsideration, and we 

affirm the Secretary’s order.

 

 P. KEVIN BROBSON, Judge

 

4

Petitioner relies upon this Court’s unreported decision in B.B. In re: J.K. (Pa. Cmwlth.,

2022 C.D. 2014, filed June 10, 2015). We conclude that, even if B.B. had been filed as a 

reported decision, it would not control the outcome in this matter, because it is distinguishable. 

Although the Court in that appeal from a denial of reconsideration by the Secretary delved into 

the merits of the underlying decision to deny a request to appeal nunc pro tunc, we did so 

apparently based upon the conclusion that the record revealed the Secretary to have reached a 

manifestly unjust decision in denying reconsideration. In contrast to B.B., Petitioner here, who 

bore the burden in seeking to obtain nunc pro tunc relief, see J.C. v. Department of Public 

Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998), testified only that she could not recall whether 

or not she received the December 3, 2001 letter. Unlike the petitioner in B.B., there are simply 

no apparent non-negligent grounds to support nunc pro tunc review of Petitioner’s untimely 

appeal.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S. W., :

Petitioner :

:

v. : CASE SEALED

:

Department of Human Services, : No. 44 C.D. 2015

Respondent :

O R D E R

AND NOW, this 24th day of February, 2016, the order of the 

Secretary of the Department of Human Services is AFFIRMED.

 

 P. KEVIN BROBSON, Judge