118 A.3d 482
Pa. Commw. Ct.2015Background
- BB, age 17, was listed as an indicated perpetrator of child abuse; he sought expungement and administrative review of the finding.
- October 4, 2013 notice advised filing a request for administrative review within 45 days.
- Counsel mailed a timely-looking appeal on November 21, 2013, 48 days after the notice; Director denied as untimely on January 10, 2014.
- BB sought nunc pro tunc relief on February 21, 2014; ALJ held the delay was not proven to be non-negligent or beyond control.
- ALJ recommended dismissal as untimely on September 12, 2014; Bureau adopted; Secretary denied reconsideration on October 17, 2014.
- Court reversed and remanded on June 10, 2015 to consider Counsel’s nunc pro tunc appeal; later statutory amendments affected deadlines
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Secretary abused discretion denying reconsideration | BB argues nondiscretionary base for nunc pro tunc exists | Secretary followed Bureau’s untimeliness ruling | Yes, abuse of discretion; remand for nunc pro tunc consideration |
| Whether nunc pro tunc relief was available for non-negligent counsel delay | Counsel’s emergency eye surgery showed non-negligent delay | Delay required additional evidence, which was not shown | Yes, nunc pro tunc should be granted based on non-negligent circumstances and unrebutted testimony |
| Did ALJ err by requiring additional evidence to verify absence due to surgery | Counsel’s uncontradicted testimony supported non-negligent delay | Need for corroboration | Yes, ALJ erred; uncontradicted testimony suffices in prima facie showing |
| Prejudice to DPW due to delay | No showing of prejudice from three-day filing delay | Not specifically argued here | Prejudice not shown; focus on non-negligent delay standard |
Key Cases Cited
- Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) (extended nunc pro tunc to non-negligent failure to file)
- Criss v. Wise, 781 A.2d 1156 (Pa. 2001) (non-negligent reasons for late filing may warrant nunc pro tunc relief)
- Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) (hospitalization evidence supports non-negligent delay inference)
- Perry v. Unemployment Compensation Board of Review, 1343 (Pa. Cmwlth. 1983) (late filing due to circumstances prompting nunc pro tunc relief)
- Tony Grande, Inc. v. Workmen’s Compensation Appeal Board (Rodriguez), 455 A.2d 299 (Pa. Cmwlth. 1983) (nunc pro tunc relief for late filing)
- C.E. v. Department of Public Welfare, 97 A.3d 828 (Pa. Cmwlth. 2014) (reversing where credibility determinations were lacking)