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C. E. v. Department of Public Welfare

Commonwealth Court of Pennsylvania

August 4, 2014

C. E., Petitioner
v.
Department of Public Welfare, Respondent

Submitted June 13, 2014

Page 829

Appealed from No. 021-11-1023. State Agency Department of Public Welfare, Bureau of Hearings and Appeals.

Jeffrey A. Conrad, Lancaster, for petitioner.

Andrew J. Bender, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Page 830

COHN JUBELIRER, JUDGE

C.E. appeals from a Final Order of the Secretary of the Department of Public Welfare (Secretary) upholding an order issued by the Bureau of Hearings and Appeals (Bureau) dismissing, as untimely, C.E.'s appeal of an indicated report of child abuse. On appeal, C.E. argues that the Bureau erroneously concluded that he did not provide sufficient evidence to show non-negligent circumstances which would allow for a nunc pro tunc appeal. Upon review of the evidence presented, we conclude that the Secretary erred by upholding the dismissal of C.E.'s appeal as untimely; therefore, we vacate and remand.

The Department of Public Welfare's (DPW) Office of Children, Youth, and Families (OCYF) sent C.E. a letter dated June 6, 2011, notifying him that he was listed on the statewide central register of child abuse as a perpetrator in an indicated report of child abuse.[1] (ALJ Adjudication, Findings of Fact (FOF) ¶ 1.) The letter informed C.E. that he had forty-five days to appeal the placement of his name on the register. (FOF ¶ 2.) On December 15, 2011, OCYF received C.E.'s appeal and, on the same day, mailed him a letter stating that his appeal had been received, but was untimely filed. (FOF ¶ ¶ 5, 7.) C.E. filed a request for a hearing on the issue of timeliness and a telephone hearing was conducted by an Administrative Law Judge (ALJ) on February 9, 2012.

At the hearing, C.E. testified on his own behalf and presented the testimony of his counsel, Attorneys Stephanie Lombardo and Jeffrey A. Conrad, and their Paralegal Christina Guthrie. DPW did not call any witnesses.

C.E. testified that he received a letter from OCYF informing him of the indicated report of child abuse, and contacted his attorney for assistance. (Hr'g Tr. at 36-37, R.R. at 57a-58a.) He testified further that he signed his appeal to OCYF on June 6, 2011. (Hr'g Tr. at 36-37, R.R. at 57a-58a.)

Attorney Lombardo testified that it was her responsibility to fill out a Request for Review of Hearing on behalf of C.E. and mail it to the Secretary. (Hr'g Tr. at ...


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