Thursday, August 04, 2005

admin. law - nunc pro tunc appeal - improper notice of appeal rights

C.S. v. Department of Public Welfare -- Commonwealth Court, August 3, 2005

Held, nunc pro tunc appeal filed 6 years late should have been granted where the administrative determination did not accurately set out the notice of statutory appeal rights.

In 1997 DPW sent CS a notice of the entry of an indicated report of abuse. The notice told him that, within 45 days, he could ask the DPW Secretary to amend or destroy the report, and that if the Secretary did not do so, he "may" get a hearing.

CS appealed in 2003, when he was denied a clearance to do an internship connected with his getting a degree in psychology. The internship was denied because of the existence of the 1997 indicated report of abuse. CS said that he didn’t appeal earlier out of "ignorance. I did not understand what my responsibilities were and how I could ask for an appeal."

The 1997 DPW notice said that CS "may have a right to a hearing." (emphasis in original). By contrast, the statute gave him an unequivocal right to a hearing. The court said that the law "mandates that an alleged perpetrator who has made a request for a hearing will receive one, and at this hearing, the agency bears the burden of proving child abuse by the alleged perpetrator. This right is essential. Otherwise, citizens can have their ability to work at a job requiring [a clearance] taken away on the basis of an investigator's report alone and not on the basis of a hearing at which the government agency claiming abuse bears the burden of proof. The equivocal notice given by the Department…did not satisfy the exacting requirements of [the statute] and, thus, this breakdown in the administrative process entitles Petitioner to file a nunc pro tunc request for expungement….."

Concerning the length of the delay in appealing, the court said that "[w]hether a delay is one day or six years late….does not change the analysis….."

The decision also underscored that under another section of the Child Protective Services Law, the DPW Secretary has the discretion to amend or expunge a finding of abuse at any time, upon good cause shown.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg