IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J.K., Jr., : SEALED CASE

Petitioner :

:

v. :

:

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

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 Services’ (DHS)1 Bureau of Hearings and Appeals’ (BHA) January 22, 

2015 order dismissing J.K.’s request to expunge his indicated report2from the 

ChildLine3 & Abuse Registry (ChildLine Registry). The sole issue for this Court’s 

 

1

Effective November 24, 2014, Department of Public Welfare was officially renamed the 

Department of Human Services.

2 An “[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 

defined 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 [DHS] 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 telephone number), refers the reports for 
2

review is whether DHS erred by dismissing J.K.’s 2014 expungement appeal.

4

 After 

review, we affirm.

On October 23, 2002, DHS mailed J.K. a notice advising him that, 

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

Youth & Family Services (OYFS),5he was listed 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 Reproduced 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 dismissed as untimely filed. J.K. requested a 

hearing and, on 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 granted 

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 

ChildLine Registry. 

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

resided, were 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 formerly known as Lackawanna 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 judge (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 using his 

incorrect address on its investigative report and the Notice.10 However, the 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 Law provides 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). Good cause could include 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 

maintain 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 case, 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 years 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 of 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. Welfare, 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. does 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) 

states 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. Thus, 

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

(Pa. Cmwlth. 2008).

Under the doctrine of technical res judicata, often 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 parties 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 subject 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 that the later action is based 

on a cause of action different from the one previously 
5

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 decided 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 opportunity 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 the 2014 ALJ hearing, OYFS offered its documents related to the 

2002 ChildLine Registry expungement without 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 aneurysm, 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 had 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 Record 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 postmarked 

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); see 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 operation, and I wanted to believe in her.” R.R. at 67a. 

He also offered 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] Chris 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 distinguish 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 January 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, 2003, BHA issued a 

Final Administration Action Order dismissing the appeal as 

untimely filed. Again, 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 Administration 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 prioradjudication on the merits of 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 are 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.

The record 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 whether 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 an 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. 1998) (citation 

omitted).

A perpetrator 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 she 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. 

Beaver 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) (quoting 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 and 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 of the 2002 appeal deadline, or that 
8

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. Children & 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 30th day of December, 2015, the Department of Human 

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

___________________________

ANNE E. COVEY, Judge