Wednesday, September 05, 2012

admin. law - burden of proof - procedure where non-burdened party does not appear

V.W. v. DPW - Cmwlth. Court - August 24, 2012

Dismissal of appeal from decision in child abuse expungement case reversed, where

a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.

Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.

Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).

Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."

In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).

The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.