IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.K., Jr., : SEALED CASE Petitioner :

:

v. :

: Department of Human Services

, : No. 489 C .D. 201 5 Respondent : Submitted : September 25 , 2015

BEFORE: HONORABLE DAN PELLEGRINI

, President Judge

HONORABLE MARY HANNAH LEAVITT , Judge HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: December 30, 2015

J.K., Jr. (J.K.), pro se, petitions this Court for review of the Department

of Human Servi ces ’ (DHS) 1 Bureau of Hearings and Appeals’ (BHA) January 22,

2015 order dismissing J.K.’s request to expunge his indicated report 2 from the

ChildLine 3 & Abuse Registry (ChildLine Registry). The sole issue for this Court’s

1 Effective November 24, 2014, Department of Public Welfare was officially renam ed the Department of Human Services.

2 A n “[ i ] ndicated report ” is

a report of child abuse . . . if an investigation by [DPW] or county

agency determines that substantial evidence of the alleged abuse by a
perpetrator exists based on any of the following: ( i ) [a] vailable
medical evidence [;] ( ii ) [t] he child protective service investigation [; or,] ( iii ) [a] n admission of the acts of abuse by the perpetrator.

23 Pa.C.S. § 6303 (a) (emphasis omitted) ; see also 55 Pa. Code § 3490.4. “ Substantial evidence ” is
de fined in the Child Protective Services Law (Law) as “[e]vidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.” 23 Pa.C.S. § 6303(a) (emphasis omitted) ; see also 55 Pa. Code § 3490.4.

3 “ ChildLine ” is defined as “[a]n organizational unit of [D HS ] which operates a Statewide
toll

- free system for receiving reports of suspected child abuse established under [S]ection 6332 of the [ Law ] (relating to establishment of Statewide toll

- free tele phone number), refers the reports for2

review is whether D HS erred by d ismissing J.K.’s 2014 expungement appeal

. 4 After

review, we affirm.

On October 23, 2002

, DHS mailed J.K. a notice advising h im that

, following an investigation of a report made to the Lackawanna County Office of

Youth & Family Services (OYFS), 5 he was li sted on the ChildLine Registry as a
perpetrator of child abuse (Notice) . The Notice informed J.K. that he could request to

have the indicated report amended or destroyed if he believed that it was inaccurate

or not being legally maintained. See Reproduce d Record (R.R.) at 4a. The Notice

further read : “ ALL REQUESTS MUST BE MADE IN WRITING WITHIN 45 DAYS FROM

THE DATE OF THIS NOTICE .” 6 R.R. at 4a. Because J.K.’s appeal was postmarked

December 31, 2002, the appeal was d ismissed as untimely filed. J.K. re quested a

hearing and , o n April 25, 2003, BHA upheld the dismissal since J.K.’s appeal was

untimely and he failed to satisfy the nunc pro tunc appeal requirements. J.K. sought

reconsideration by the Secretary of Human Services (Secretary), which was grant ed

on May 13, 2003. By Final Order issued April 7, 2004, the Secretary upheld BHA’s

dismissal. J.K. did not appeal from the Final Order , and his name remained on the

Child L ine Registry

.

During the summer of 2014, when J.K. and his fiancé, with whom he

resided, w ere attempting to gain emergency custody of her grandchildren, J.K.’s

background check revealed that his name was on the ChildLine Registry. By

September 5, 2014 letter, J.K. requested information regarding the 2002 abuse

investigation and maintains the reports in the appropriate file. . . .” 55 Pa. Code § 3490.4 (emphasis omitted)

.

4 J.K. stated the issue as follows : “Was the oversight of using nunc pro tunc in its correct

purpose, a direct hindrance of having false allegations of child abuse expunged back in 2002? Ultimately, the government unit decided to dismiss the appeal with res judicata claiming untimeliness.” J.K. Br. at 5 (italics added).

5 OYFS was f

ormerly known as Lackawa nna County Children & Youth Services.

6 An amendment to Section 6341(a)(2) of the Child Protective Services Law, 23 Pa.C.S. § 6341(a)(2), effective December 31, 2014 extended the period to 90 days.3

allegations. On October 9 , 2014, J.K. faxed a letter to BHA declaring his innocence

of the 2002 charges. BHA deemed J.K.’s letter a request to have his name expunged

from the ChildLine Registry

. 7 A hearing was held on December 17, 2014 before an

administrative law ju dge (ALJ) , at which OYFS moved for dismissal because the

appeal: (1) was untimely, (2) did not satisfy the nunc pro tunc requirements

, and (3)

was heard and fully adjudicated in 2003. 8 The ALJ recommended that J.K.’s appeal

be “Dismissed for Res Judicata. ” R.R. at 24a. By January 22, 2015 order, BHA

adopted the ALJ’s recommendation. J.K. sought reconsideration by the Secretary,

which he denied by March 10, 2015 order. J.K. appealed to this Court. 9

J.K. argues that his appeal delay was caused by OYFS u sing his

incorrect address on its investigative report and the Notice. 10 However, t he record

does not reflect that J.K. raised this issue to DHS. Except for a few limited

7 Effective December 31, 2014, Section 6341(a)(1) of the L aw provide s in pertinent part that, “[a] t any time, the [S]ecretary may amend or expunge any record in the [ChildLine Registry]

. .

. upon good cause shown and notice to the appropriate subjects of the report. ” 23 Pa.C.S. § 6341(a)(1). G ood cause could i nclude newly

- discovered evidence of an indicated report’s inaccuracy or inconsistency and/or a determination that the perpetrator named on an indicated report no longer represents a risk and no significant public purpose would be served by continuing to

ma intain his or her name on the ChildLine Registry. See 23 Pa.C.S. § 6341( a ) ( 1)( i )

- ( ii )

.

8 OYFS counsel stated at the hearing that since OYFS ’ file had been expunged and investigating caseworkers were no longer on staff, in order to properly present this ca se, it had to
reconstruct it from another case

- related court file and, thus , it was prejudiced by J.K.’s extreme delay

. See R.R. at 48a

- 51a , 62a

- 63a

. OYFS representative Rachel Green testified that OYFS records are expunged when the victim reaches 23 year s of age. At that same time, the victim’s name and the allegations are removed from the ChildLine Registry . However, the perpetrator’s name remains on the ChildLine Registry for life, unless it is expunged on appeal. See R.R. at 76a

- 78a.

9 “ Our ‘scope o f review in expunction proceedings is limited to a determination of whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence.’” K.R. v. Dep’t of Pub. Wel fare , 950 A.2d 1069, 1073 n.6 (Pa. Cmwlth. 2008) (quoting E.D. v. Dep’t of Pub. Welfare , 719 A .2d 384, 387 (Pa. Cmwlth. 1998)).

10 J.K. avers that if OYFS had correctly addressed the documents, “this issue could’ve been
resolved back in 2002.” J.K. Br. at 11. J.K. d oes not specify in what manner the address OYFS
used in 2002 was incorrect.4

circumstances not relevant here, Pennsylvania Rule of Appellate Procedure 1551(a)

st ates in pertinent part: “No question shall be heard or considered by the court which

was not raised before the government unit . . . .” Pa.R.A.P. 1551(a). “The reasoning

behind this rule is to provide the agency the opportunity to correct its own error, as
well as to give us the benefit of its expertise and reasons for its actions.” Ardolino v.

Pa

. Sec. Comm’n , 602 A.2d 438, 442 (Pa. Cmwlth. 1992). Because J.K. failed to

raise this issue before DHS in either his 2002 or 2014 appeals, he waived it. Thu s,

this Court is precluded from addressing it

.

J.K. also contends that his 2002 appeal was untimely because at that

time he permitted his ex

- wife to handle his paperwork. However, res judicata

precludes this Court from reviewing that issue. “[T]echnical res judicata and

collateral estoppel are both encompassed within the parent doctrine of res judicata[.]”

Weney v. W

orkers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.) , 960 A.2d 949, 954

(Pa. Cmwlth. 2008).

Under the doctrine of technical res judicata, oft en referred to as claim preclusion, ‘ when a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded. ’ [ Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.) , 776 A.2d 362, 365 (Pa. Cmwlth. 2001)]. In order for technical res judicata to apply, there must be: ‘ (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parti es suing or sued. ’ Id. at 366. Technical res judicata may be applied to bar ‘ claims that were actually litigated as well as those matters that should have been litigated. ’ Id. (emphasis added). ‘ Generally, causes of action are identical when the subjec t matter and the ultimate issues are the same in both the old and the new proceedings. ’ Id.

The doctrine of collateral estoppel , often referred to as issue preclusion, ‘ is designed to prevent relitigation of an issue in a later action, despite the fact th at the later action is based on a cause of action different from the one previously5 litigated. ’ Pucci v. Workers’ Comp [

. ] Appeal B [ d. ] (Woodville State Hosp. ) , 707 A.2d 646, 647

- 48 (Pa. Cmwlth. 1998). Collateral estoppel applies where:

(1) the issue deci ded in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party in the prior case and had a full and fair op portunity to litigate the issue; and (4) the determination in the prior proceeding was essential to the judgment.

Id. at 648.

Weney , 960 A.2d at 954

.

At t he 2014 ALJ hearing, OYFS offered its documents related to the

2002 ChildLine Registry expungement w ithout objection from J.K. ; thus, they were

admitted into evidence. When asked by the ALJ if he had seen BHA’s April 25, 2003

decision dismissing his 2002 appeal as untimely, J.K. responded that he “never did

paperwork for the house” because his “ex

- wife . . . did all of that.” R.R. at 57a.

When asked if he signed the request to reconsider that decision, J.K. explained: “This

is what

-- I understand that this part is my fault, because I let her do all of this. She

-- she wound up

-- she had a brain aneu rysm, and she lost part of her memory, and she

insisted she had to do all of this.” 11 R.R. at 60a. He further related: “So, she’s the

11 Notably, in J.K.’s 2015 request for reconsideration of BHA’s decision, he admitted: “ Yes I did sign a document. I am not disputing this. However, I thought that it h ad been handled and
resolved.” R.R. at 27a (emphasis added)

. J.K.’s admission is supported by the fact that his signatures on both his 2003 and 2015 reconsideration requests appear nearly identical. See R.R. at 26a; see also Supplemental Reproduced Reco rd at 101. Moreover, J.K. admits in his brief filed
with this Court that he , rather than his ex

- wife, handled the 2002 appeal:

On October[] 23, 2002, [OYFS] released a report indicating me of child abuse. Once I had this report, I filed an appeal postma rked December[] 31, 2002. I was denied the appeal, stating I was 24 days past the 45 days allotted amount of time to file. I continued to appeal this matter, until I had heard no more, and thought that it was
resolved.

J.K. Br. at 9 (emphasis added) ; se e also J.K. Br. at 6

.6

one that mostly did the paperwork and everything for me. . . . Her doctors said there

was brain damage after the operati on, and I wanted to believe in her.” R.R. at 67a.

He also of

fered that he had no hesitation in submitting his name for the 2014

background check because he “had no idea that this was

-- . . . I have never been in

trouble in my life. And [Detective] Chri s Kolcharno told me back then that there’s

nothing

, ” because the victim “told too many stories.” R.R. at 72a. Other than the

explanation regarding his ex

- wife’s control over his paperwork, J.K. did not offer any

information or documentation to distinguis h the circumstances of his 2002 appeal

from his 2014 appeal . J.K.’s 2014 appeal was just a later version of his untimely

2002 appeal

.
The ALJ held in his J anuary 22, 2015 recommendation :

In this case, [J.K.] filed an untimely appeal of [his] ChildLine Final Notice on December 31, 2002. BHA conducted a timeliness hearing to determine if the appeal should be allowed to proceed nunc pro tunc

. The issue of timeliness was clearly identified at the hearing and was the only issue discussed. On April 25, 200 3, BHA issued a Final Administration Action Order dismissing the appeal as untimely filed. Ag a in, timeliness was the only issue addressed by BHA. In the prior hearing, timeliness was the only issue identified at the hearing and was the only issue decided in the Final A dministration Action Order. In the current appeal, timeliness is again the only issue on appeal over the exact same issue as previously decided by [BHA]

. Therefore, res judicata applies because there was a prior

adjudication on the merits o f the previous matter, which was timeliness.

. . . . [J.K.] argued that the current issue is different than the issue decided by BHA on April 25, 2003; therefore, res judicata should not apply. However, [J.K.] filed an untimely appeal on December 31, 2002 and the subsequent appeal, filed by [J.K.] on October 9, 2014, remains untimely. As such, the issue of timeliness remains unchanged. BHA issued a Final Administration Action Order and decided the issue of timeliness on April 25, 2003.7 Since the issues ar e in fact the same, collateral estoppel applies and the appeal should be dismissed.

Accordingly, [J.K.’s] appeal should be dismissed due to the application of [r] es [j] udicata.

R.R. at 33a

- 34a (italics added) . BHA adopted the ALJ’s recommendation.

Th e r ecord before us makes clear that J.K.’s 2002 and 2014 appeals from

the October 23, 2002 Notice seek to have his name expunged from the ChildLine

Registry , and both BHA reviews addressed w hether J.K.’s appeals were timely, or

could be accepted nunc pro tunc

. 12 Because J.K.’s 2014 appeal is identical to his

12 Even if J.K.’s claim was not precluded, we would be compelled to affirm BHA’s

dismissal on the grounds that he failed to meet the requirements for a nunc pro tunc appeal. “It is well established that the failure to timely appeal a n administrative agency’s action is a jurisdictional defect. The time for taking an appeal therefore cannot be extended as a matter of grace or mere indulgence.” J.C. v. Dep’t of Pub. Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 19 9 8 ) (citation omitted).

A p erpetrator must request that an indicated report of child abuse be

amended or expunged within forty

- five (45) days of being notified of the indicated report. 23 Pa.C.S. § 6341(a)(2). An exception allows perpetrators to proceed nunc pro tunc where he or s he can
demonstrate that the delay in requesting an appeal was caused by extraordinary circumstances involving fraud, a breakdown in the administrative processes

, or non - negligent circumstances related to the petitioner, his counsel or a third party

.
Be aver Cnty. Children & Youth Servs. v. Dep’t of Pub. Welfare , 68 A.3d 44, 48 (Pa. Cmwlth. 2013) (emphasis added).

A party seeking permission to file a nunc pro tunc appeal . . . needs to establish that: (1) [he] filed the appeal shortly after learning of and having an opportunity to address the untimeliness; (2) the elapsed time is one of very short duration; and (3) the respondent will not suffer prejudice due to the delay.

Smith v. Pa

. Bd. of Prob. & Parole , 81 A.3d 1091, 1094 n.4 (Pa. Cmwlth. 2013) (quo ting J.A. v. Dep’t of Pub. Welfare, 873 A.2d 782, 785 n.4 (Pa. Cmwlth. 2005)). “The question of whether there are unique and compelling facts, which establish a non

- negligent failure to timely appeal, is a legal
conclusion to be drawn from the evidence an d is reviewable on appeal.” J.A.

, 873 A.2d at 785 n.5. According to BHA’s April 25, 2003 adjudication, J.K. provided no reason for his untimely appeal. Although he provided testimony about why his 2014 appeal was so late, that testimony did
not establish that he did not timely receive the Notice or know o f the 2002 appeal deadline, or that8

2002 appeal, which was fully adjudicated with J.K.’s participation, BHA properly

dismissed his 2014 appeal as precluded by res judicata . Accordingly, BHA’s order is

affirmed.

_______________________ ____ ANNE E. COVEY, Judge

his delay was caused by any “extraordinary circumstances involving fraud, a breakdown in the administrative processes, or non

- negligent circumstances.” Beaver Cnty. Ch ildren & Youth Servs.

, 68 A.3d at 48. Thus, J.K. did not meet the requirements to have his appeal heard nunc pro tunc in
either 2002 or 2014

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.K., Jr., : SEALED CASE Petitioner :

:

v. :

: Department of Human Services, : No. 489 C.D. 2015 Respondent :

O R D E R

AND NOW, this 30 th day of D ecember , 201 5

, the Department of Human

Services’ Bureau of Hearings and Appeals’ January 22, 2015 order is affirmed.

___________________________ ANNE E. COVEY, Judge