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L.K. v. COMMONWEALTH PENNSYLVANIA (01/06/89)

decided: January 6, 1989.

L.K., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare, in the case of Appeal Of: L.K., File No. 21-87-122, Re: M.G., CL No. 23-05767.

COUNSEL

Robert Polin, for petitioner.

Ruth O'Brien, Assistant Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 122 Pa. Commw. Page 471]

Petitioner L.K. appeals from the Department of Public Welfare's (DPW) denial of petitioner's request for expungement of an "indicated report" of child abuse as provided by the Child Protective Services Law (CPSL).*fn1 The DPW denied petitioner's request for a hearing on the ground that the petitioner's request was untimely under the DPW's regulations.

The general question for review is whether the DPW's forty-five day time limit period during which a subject*fn2 must request a hearing as provided in 55 Pa.

[ 122 Pa. Commw. Page 472]

Code ยง 3490.106(b)*fn3 should be applied to expungement cases in which the Secretary of the DPW refuses rather than grants a subject's request for expungement. Because the CPSL automatically confers a right to a hearing when a request for expungement has been denied, we agree with the petitioner that the subject in that situation need not request a hearing within forty-five days of the secretary's refusal. We remand for a hearing as requested.

The Delaware County Children and Youth Services named petitioner as the subject of an indicated report of child abuse on April 7, 1986. On July 22, 1986 petitioner's former attorney asked the Secretary of the DPW to expunge the child abuse report. On the basis of its records, without a hearing, DPW denied petitioner's request for expungement on August 18, 1986. Petitioner filed a second expungement request on December 17, 1986. On February 4, 1987 DPW's acting director Warren Lewis responded by letter to petitioner's second request by stating that "any request which [petitioner] would now submit to request a hearing" would be delinquent because the petitioner had failed to request a hearing within forty-five days of the secretary's August 18 refusal to expunge.

Section 15(d) of the CPSL states:

At any time, a subject of a report may request the secretary to amend, seal or expunge information contained in the Statewide central register on the grounds that it is inaccurate or it is being maintained in a manner ...


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