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D.P. v. COMMONWEALTH PENNSYLVANIA (03/18/87)

decided: March 18, 1987.

D.P., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare, in case of Appeal of: D.P., Re: H.A., File No. 21-85-043.

COUNSEL

Sandra F. Zavodnick, for petitioner.

Handsel B. Minyard, City Solicitor, with him, Richard J. Gold, Chief Deputy City Solicitor, and Tania E. Wright, Assistant City Solicitor, for respondent, Philadelphia County Children and Youth Agency.

Mary K. Cole, for respondent, Child Advocacy Unit, Defender Association of Philadelphia.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 104 Pa. Commw. Page 643]

D.P. (petitioner) appeals an order by the Department of Public Welfare (DPW) refusing to expunge an "indicated report" of child abuse made pursuant to the Child Protective Services Law (Law), Act of November 26, 1975, P.L. 438, as amended, 11 P.S. §§ 2201-2224.

This case arises out of an allegation of physical abuse reported to the Philadelphia County Children and Youth Agency following an incident in which petitioner allegedly inflicted severe corporal punishment upon her child. The subsequent investigation revealed evidence of "serious physical injury" and, as a consequence, an indicated report was filed.*fn1 Petitioner requested DPW to expunge the report. When this request was denied, petitioner was granted a hearing. The hearing officer recommended that the report be expunged. After careful review of the record, however, the Director of the Office of Hearings and Appeals rejected this recommendation and denied petitioner's appeal. A Petition for Reconsideration followed this denial and DPW agreed to reconsider the matter. Petitioner then requested that the case be remanded for an agency decision. At this point, the Executive Deputy Secretary of DPW issued a final order denying petitioner's request and adopting as the rationale for this final order the reasons stated by

[ 104 Pa. Commw. Page 644]

    the Office of Hearings and Appeals in their denial of petitioner's request for expungement. This appeal follows.

This Court has recently determined that the Secretary of DPW or his proper designee is to be considered the ultimate arbiter of fact. G.S. v. Department of Public Welfare, 103 Pa. Commonwealth Ct. 84, 521 A.2d 87 (1987). Therefore, the sole issue to be decided in the instant appeal is whether the Executive Secretary's order denying the expungement of the indicated report is supported by substantial evidence, accords with the law, and does not violate petitioner's constitutional rights. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. See Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The Office of Hearings and Appeals, whose decision and reasoning were adopted by the Executive Secretary, stated that the indicated report could not be expunged because there was undisputed testimony of record that petitioner had struck her son repeatedly with an electrical cord and that these blows resulted in "serious physical injury" causing her son severe pain. ...


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