R. v. Com., Dept. of Public Welfare

employees All other agreement. bargaining of the collective except for the expectation no such have municipality employment. contract of an individual enjoy few who for justification offered no rationale Majority The have as agreements, restrictions of labor legislature’s special subject purpose. other any to contracts opposed class distinc- being finds as a viable majority matter which awards) (collective or arbitration bargaining agreements tion being a reasonable analysis scrutiny does not withstand 252 of Therefore, I would declare Section class distinction. labor special regulating law Act 47 an unconstitutional 32(7) Pennsylvania of Article Section derogation III, Constitution.

636 A.2d R., Appellant, Pennsylvania, DEPARTMENT COMMONWEALTH County Montgomery OF PUBLIC WELFARE Youth, Appellees. Office of Children Pennsylvania. Supreme Court of Argued Jan. 4, 1994.

Decided Jan. Green, Norristown, “R.” B. for Jean for Harrisburg, D.P.W. Grogan, Kathleen Jr., Ambler, Imms, Mtgy. Co. Office P. Stephen Youth. Children & O’Neill, Ad Litem. T. Guard.

Stephen ZAPPALA, C.J., LARSEN, FLAHERTY, NIX, Before MONTEMURO, PAPADAKOS, JJ. CAPPY OPINION NIX, Chief Justice. R. raises several constitutiоnal appeal, Appellant

In this followed when he was procedures to the that were challenges report indicating his record of a request expunge denied his commit- showing evidence that he that there was substantial follow, reject his For the reasons that ted child abuse. claims. constitutional following January set of facts.

This case arose out and Youth County Office Children Montgomery alleging child abuse that R. report suspected received a investigated A caseworker sexually daughter. abused his mother, her but R. interviewing the child and report by caseworker also obtained a refused to be interviewed. The of the child. and medical evaluation psychiatric, psychological Montgomery investigation, the caseworker’s upon Based report classify- of Children and Youth filed its County Office the matter as “indicated” for child abuse.1 ing Initially,' Department R. wrote to the Public Welfare (DPW) report. of the “indicated” request expungement report is one based on an administrative determina- 1. An "indicated” evidence, from medical tion that there exists substantial evidence agency’s investigation, admission of the accused that the child in or an question report A can also be had been abused. 23 Pa.C.S. "founded,” judicial case there has determina- filed as in which been abused, "unfounded,” the child has been or as in which case tion that judicial finding there has been neither a nor an administrative of abuse. Id. thereafter, sought R. request. Soon The denied that DPW channels statutorily administrative through provided relief Hearings of the DPW’s Office by appeal with filing Appeals. child, her of which the hearings during days

There were five consultant testi- agency’s and the then-treating psychiatrist, in camera over R.’s testimony her gave fied. The child over presided of were objections. days hearings four first Liebau, Examin- Hearing while by Hearing Examiner John F. day hearings. final presided over the er Thomas G. Devlin Adjudication and Devlin also issued the Hearing Examiner denied. expungement for be request Recommendation that Hearings full Office adopted That report Appeals.

A the Commonwealth Court affirmed panel divided Thereafter, sought R. allowance Department’s adjudication. respect to two issues. The granted which was appeal, when a denied due first is whether R. was credibility of witnesses he did examiner made determinations permitting testify. or hear The second whether see in camera denied R. any constitutional daughter testify arguments review of R.’s rights Upon to confront a witness. issues, judgment affirm the below. these two addressing Appellant argues by considering We the first issue. begin that, nor Examiner Devlin neither saw heard Hearing because during the first four testimony appeared witnesses who hearings, permitted he should not be decide the days of Appellant supports case make recommendations. ex rel. Davis v. Commonwealth on relying contention Davis, Davis, A.2d 849 Pa.Super. that, facts, and inferences Superior explained Court that when them, credibility on depend can drawn from be by judge witnesses, made a decision can tеstifying Id. 408 A.2d at appeared. before whom witnesses R.’s reliance on Davis misplaced because judicial while the instant proceeding, case involved a comply which must hearing, matter involves an administrative re- satisfy set of standards with a different quirements. v. Peak Un- articulated cogently were

Those standards Review, 267, Bd. 509 Pa. 501 employment Compensation of Peak, (1985). Unemployment Compensation In the A.2d 1383 to award bene- rejected a referee’s decision Board of Review claimant, the Board’s challenged and the claimant fits to a that, argued The claimant process. a violation of due action as of a was based on the resolution the referee’s decision because Board, hear the which did not credibility, of the question ex- referee’s decision without evidence, reject could not the doing disagreed. so. We its reasons plaining referee, Board, was First, that the not the emphasized we Id. at the ultimate finder of fact. designated as statutorily Unemployment Miller v. 276-77, (citing 1388 501 A.2d at Review, 539, 541, 405 Bd. 45 Pa.Commw. Compensation of (1979)). Legislature said that the could 1034, 1036 We A.2d as long on the Board as constitutionally power confer arbitrary the risk of an protection against there was sufficient of any to reverse referee’s assessment by the Board decision 277, Id. (citing at 501 A.2d at 1388-89 credibility. testimonial denied, (2d Ross, cert. Cir.1982), 459 F.2d 604 Moore (1983)). suffi concluding L.Ed.2d 969 that U.S. Peak, to the claimant we safeguards protect existed cient said in permitting violation the no due perceive determinations, so credibility a referee’s

Board to reassess subject judicial to review on the the Board is long as its required explain test and is to substantial evidence meaningful appellate to permit decision sufficient detail review.

Id. 278, 501 A.2d at 1389. R. had the benefit of both hearings. safeguards expungement Hearings Appeals the of and begin by noting that Office We hearings. fact in It expungement functions as the finder of of by Secretary Department as such designated Welfare, 3490.106(c), is authorized to 55 Pa.Code who Public duties statutorily assigned her designee perform appoint an indicated expunge find and whether to facts decide report.2 not and Hearings Appeals,

Because Office case, examiner, is ultimate in this it hearing finder fact issued of no moment examiner who hearing Adjudication testimony did hear the Recommendation days hearings. four given during first are constitutionally permitted are assistants who examiners through, analyzing by taking, sifting help agency States, Morgan v. United U.S. evidence. 1288, 1295 issue 906, 912, The critical 80 L.Ed.

S.Ct. Peak, safeguards, are sufficient measured whether there arbitrary Hearings action the Office protect against Appeals. in satisfying pro- Both conditions articulated Peak First, any as adminis- cess are met here. with requirements determine, adjudication, reviewing a court must trative agency alia, support evidence exists to the inter whether substantial Second, the Office of § 2 Pa.C.S. the reasons decision. Appeals request expunge denied R.’s to his Hearings and permit meaningful appellate to re- enough record are clear the recommendation of summarily adopted view. The Office Devlin, nine-page thoroughly Examiner whose Hearing report Therefore, his recommendation. we the basis for describes power the find facts and render deci- Legislature 2. conferred sions as follows: (c) request. secretary the of of the refuses re- Review refusal —If amend, quest expunge report] or not act within a seal or a does [to time, receipt days of but event than 30 after reasonable in no later subject right hearing before request, have shall designated agent secretary to secretary determine whether or register any of summary in the or the contents Statewide central amended, report pursuant be sealed section should or filed being is grounds that it or that it expunged on the is inaccurate chapter. this in a inconsistent with maintained manner (d) any agent may ap- secretary designated make Order.—The propriate expungement of respecting order the amendment or such requirement make them accurate consistent records to chapter. this 6341(c), (d). 23 Pa.C.S. when the Office denied due find that R. was not of a the recommendation Appeals accepted Hearings days of the five over one presided examiner who heard. testimony was during which that, contention because Next, consider R.’s we camera, a constitutional testified in he was denied daughter supports face-to-face. He to confront a witness right this Court’s decisions Common relying, part, on claim (1991), and A.2d 281 Ludwig, wealth v. 527 Pa. Lohman, 492, 594 A.2d 291 527 Pa. Commonwealth matter be However, do not control the instant those cases protections constitutional one discussed the cause each I 9 of Article under Section enjoy criminal defendants explicitly That provision Pennsylvania Constitution.3 R. was prosecutions.” ‍​‌​​‌​​​​​​​​‌‌​​‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‍“criminal addressed to con request his expungement he had criminally prosecuted; Therefore, 9 of hearing. Section in an administrative sidered Ludwig reliance on apply, I does not R.’s Article Lohman misplaced. that, permitted he was not argues also because

R. testified, rights he denied his daughter when his present Fourteenth Amendment guaranteed by to due 1 and Constitution and Sections to the United States However, none of Pennsylvania I of the Constitution. Article occurred here. is offended what provisions these three It Fourteenth Amendment. considering the begin by We any any deprive “nor shall State provides, pertinent part, life, due of property, process without liberty, of person Const, In Matthews v. XIV, § 1. amend. law....” U.S. by right heard prosecutions the accused hath a to be 3. In all criminal counsel, the nature and cause of the and his to demand himself face, him, to have against to meet the witnesses face to accusation favor, and, obtaining compulsory process for witnesses in information, speedy public trial prosecutions by indictment or a compelled give impartial jury vicinage; he cannot be life, himself, deprived liberty, or against can he be of his evidence nor judgment peers the law of the property, by the of his unless land.... 449 (1976), 319, 893, 18 424 96 47 L.Ed.2d Eldridge, U.S. S.Ct. for methodology formulated Supreme United States Court offends the Fourteenth Amend- assessing whether state action The stressed that guarantees. Court process ment’s due tailored to the protections for procedural due calls situation, making necessary it particular demands of the 902, 334, at 47 Id. at 96 S.Ct. interests. competing balance Brewer, 471, 481, Morrissey v. 408 U.S. (quoting at 33 L.Ed.2d (1972)). 2600, The 2593, 33 484 Court 92 L.Ed.2d S.Ct. considered: that must be identified three distinct factors First, be official interest that will affected private of action; second, deprivation the risk an erroneous such of used, probable and the through procedures value, if safe- procedural or substitute any, of additional interest, finally, including guards; and the Government’s fiscal administrative bur- the function involved and the procedural require- dens that the additional or substitute will ments entail. 335, 903, (citing Goldberg L.Ed.2d at v.

Id. at 96 S.Ct. 47 33 1011, 1018-22, 25 254, 263-71, 397 L.Ed.2d Kelly, U.S. 90 S.Ct. (1970)). 287 analysis, it proceeding perform

Before Matthews will R.’s helpful precise challenge. to articulate the nature of matter, objection raised As an initial that no is to the note hearing report fact that a occurs an indicated issued. after expunge- that the of his complaint The focus of R.’s conduct to the of due requirements ment did conform claims process. generally Procedural have come of of They frequently one two forms. most consist chal- of lenges government’s to the established adequacy proce- minority of imposing deprivation.4 dure cases See, Loudermill, 532, e.g., U.S. Cleveland Bd. Education v. 470 105 1487, (termination (1985) employment); 494 S.Ct. 84 L.Ed.2d Par 2493, J.R., 584, (1979) 101 ham v. 442 U.S. 99 S.Ct. 61 L.Ed.2d (confinement hospital); Memphis Light, Gas Water of child mental & 1, 1554, (1978) (termi Craft, 30 Div. v. 436 U.S. S.Ct. L.Ed.2d 651, service); Wright, utility Ingraham v. nation 430 U.S. 97 S.Ct. junior (corporal punishment high L.Ed.2d students); Lopez, school 419 U.S. L.Ed.2d Goss 95 S.Ct. 450 arose out of deprivation

involve instances which either or an act that did negligent an official’s conduct intentional not before procedure.5 conform to an established The case us into of these because categories does not fall either one no any nor is procedure being challenged, established is official scope or being acting negligently beyond accused case, In this raises a to the manner in authority. challenge R. procedure when the daughter which his testified established Pennsylvania’s it should be done. specify way does not Law, governs which the manner in Agency Administrative conducted, are 55 expungement hearings which Pa.Code 3490.106(d), provides § that by shall be bound technical agencies

Commonwealth hearings, of evidence and all relevant agency rules evi- may dence of value be received. Rea- reasonably probative shall be per- sonable examination and cross-examination mitted. added). Thus,

2 505 purpose Pa.C.S. the sole (emphasis whether, is to to a analysis acting pursuant our determine requirement that reasonable examination and non-specific the cross-examination be examiner allowed permitted, in a manner ran afoul of daughter testify R.’s due With guarantees. Fourteenth Amendment’s mind, analysis. we proceed perform Matthews First, consider are private we interests that affected so, doing the DPW’s dеcision. are mindful required under the Fourteenth Amendment if life, to deprive person liberty the state seeks of a liberty property Significantly, interest. existence of school); (suspension public from 725 of students v. Wolff McDonnell, 2963, 539, (1974) (forfei- 418 U.S. S.Ct. 41 935 94 L.Ed.2d Shevin, credits); 67, prisoner's goodtime ture of Fuentes v. 407 U.S. 92 1983, (1972) (repossession property); Goldberg S.Ct. 32 L.Ed.2d 556 1011, (1970) (termi- Kelly, 397 U.S. S.Ct. L.Ed.2d 287 benefits). nation of welfare See, Palmer, e.g., Hudson v. 468 U.S. 104 S.Ct. L.Ed.2d (1984) (prison guard deliberately maliciously destroys property cell). during search of inmate’s to state determined reference partly property law. are difficult of of interests which variety exists a

[TJhere within comprehended nevertheless definition but are in the or as meant “liberty” “property” of either meaning attain this constitu- These interests Due Process Clause. they have been of the fact that by tional status virtue law, and [the state recognized protected initially that the ruled repeatedly has] Court Supreme United States apply Fourteenth Amendment guarantees procedural or alter significantly seeks to remove whenever the State that status. prоtected 1155, 1165, Davis, 693, 710-11, 96 S.Ct.

Paul v. U.S. omitted). (1976) (footnote 405, 419 L.Ed.2d adversely three in which he will be ways R. describes information contained initially He claims that the affected. persons is available to numerous report his indicated of an indicated says He also the existence agencies. denial of may employment of child lead to the report abuse he com agency. Finally, or child care public private with a report in an indicated about the fact that information plains mandatory investiga be furnished the course of the may parents. analyze We will each proposed adoptive tions of to which individually to determine the extent these concerns that are to due under they relate to interests entitled Amendment. the Fourteenth may job he be denied a a child care

R.’s contention that that, in the event he seeks agency requirement stems from the direct contact with employment occupation involving children, employer to the certify prospective the DPW must proceeding was made within the report whether an indicated perceive, nor do we one-year explain, R. does not period.6 statutory provision as follows: The relevant reads 6. personnel relating prospective child-care Information (a) prospective employees applies Applicability. section to all —This services, adoptive parents, prospective prospective foster of child-care family day-care providers and parents, prospective self-employed persons seeking provide child-care services under contract other apply facility program. does not or This section a child-care a way implicates liberty in this operates how a statute that In law. recognized Pennsylvania interest under property addition, liberty to either a R.’s concern does relate terms were defined United property interest as those Roth, Regents in Board 408 U.S. Supreme States Court 2701, 33 92 S.Ct. L.Ed.2d 548 Roth, refused to extend teacher’s university state and offered no reasons employment contract one-year action a denial of due challenged The doing so. teacher claim. The Supreme rejected Court her process, implicate any did not university’s action Court said to seek another employee free liberty because 573-74, 2707, 33 job. Id. at 92 S.Ct. at L.Ed.2d not barred R. Legislature here. The has same can said or hired to a involv- seeking employment being position from extent, no liberty To that ing contact with children. direct is at stake. interest any protectable property that R. has say

Nor can we in any prospective employment opportunities. interest benefit, clearly in person have a interest a a property To or for it. He have more than an abstract need desire must He expectation than a of it. have more unilateral must must, instead, to it. legitimate have claim entitlement personnel support other their duties will administrative or unless

involve direct contaсt children. (b) by prospective employees. Information submitted —Administra- applicants require services shall to submit with tors of child-care applications following pre- the information obtained within the their one-year ceding period: (2) department applicant as to the A certification from the whether perpetrator register in central of a is named founded report report abuse. An indicated shall not be indicated child department adopts regulations specifying man- until the included required by (relating investigation in sections 6366 to ner which the availability reports) through (relating to continuous to receive home) well-being protecting children is to be detained outside conducted. 6344(a), (b)(2). 23 Pa.C.S. Roth, In 2709, at 561.7 577, 33 L.Ed.2d 92 S.Ct. at Id. proper- have sufficient did not employee found that the Court his contract neither to receive a because ty interest any reemploy- in his interest or rule secured any nor statute indicate nothing that would Similarly, here R. cites ment. any job. to claim of entitlement legitimate he has a entitled Therefore, any interest concern does not relate this protections. to due disregard R.’s concerns are also constrained

We in be furnished report in an indicated must information seeking with persons a child. As adopt event he seeks with chil involving in direct contact position employment whether a dren, certify that the DPW Legislature requires report named an indicated adoptive parent was prospective R. during proceeding one-year period.8 of child abuse how a statute that perceive nor do we explain, does not under recognized an interest operates way implicates addition, measured when R.’s claim is Pennsylvania law. Roth, a federal articulated neither by the federal standard No implicated. nor a federal interest liberty, property has not Legislature because the liberty implicated interest is named an indicated possibility person that a foreclosed Roth, 408 U.S. at 573- adopt can a child. See report seek property L.Ed.2d at 559. No 92 S.Ct. at Borough Wilkinsburg, 478 A.2d 505 Pa. 7. See also Guthrie v. ‍​‌​​‌​​​​​​​​‌‌​​‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‍(“The promotions possible mere theoretical effect on property employment prospects to constitute a future is too abstract interest.”). provision statutory reads as follows: 8. The relevant (d) regard pro- Prospective adoptive parents. to or foster —With following spective adoptive prospective parents, shall foster apply: (1) pursuant causing investigation to be made In the course of an 2535(a) person investigation), agency or (relating to an to section require investigation shall designated by the to conduct court prospective adoptive parents the information set forth in to submit (b)(1) (2) section. review in accordance with this subsection and for (2) parent, prospective a foster approving foster In the course parents agency require prospective foster to submit family care shall (b)(1) (2) for review the set in subsection and the information forth family аgency with this section. foster care in accordance 6344(d). 23 Pa.C.S. 454 to

is at R. has no claim of entitlement legitimate stake because child; it more an desire on his adopt a is no than abstract 2709, id. 577, at 561. part. See 92 S.Ct. at 33 L.Ed.2d Therefore, does relate enti- any this concern to interests guarantees. due process tled to the Fourteenth Amendment’s concern that his indicated Lastly, we examine R.’s persons is to numerous report of child abuse available is R. under the cloud of a agencies. implication The that lives stigma reputation. that threatens his The United States that not an Supreme already reputation Court has held is which, alone, to standing is sufficient invoke interest of the Fourteenth Amendment’s procedural protections Davis, 1155, clause. Paul v. 693, U.S. 96 S.Ct. (1976). However, in Pennsylvania, reputation L.Ed.2d recognized protected by highest our an interest 11 of I our 1 and Article state law: Constitution. Sections providing for “reputation,” make reference basis explicit cannot regard it as a fundamental interеst which Court abridged compliance be without constitutional standards Westing Hatchard protection. equal of due Co., Broadcasting house Pa. 532 A.2d cases). (citing R. Having protected determined that has a that will hearings, we must assess the expungement be affected be interest. Because deprived extent to which he will our neces- dealing reputation, inquiry we are with R.’s must on the information contained sarily focus the extent which is readily an indicated available accessible. report and/or under specifically We are concerned with circumstances identity which R.’s will revealed. such first already

We have examined two instances. The job would he direct applies involving occur the event he contact with children. second would occur the event case, the sought adoptive parent. to become an In either solely revealed report existence of indicated would be prospective employer adoption agency, ap- whichever аddition, if plies. the information would be disclosed to the prior months the twelve during issued report child. adoptive or job for a application time R. submitted in a also recorded abuse are of child reports Indicated perpetra- identity The registry. statewide confidential in limited set of situations. revealed reports of such tors (relating in section 6399 specified Reports General Rule.— to: made available shall confidentiality reports) in (1) service protective of a child An authorized official duties, team members multidisciplinary the course of official providing duly persons authorized assigned to the case 6370(a) to services for (relating to section pursuant services custody). of child at home or protection (2) a child or the examining treating physician A writing by designated person specifically director or a institution where or other medical any hospital director or the director being physician child is treated when being the child of designee suspects of the director child. abused

(3) A ad litem for the child. guardian (4) department agent An authorized official or in accordance regulations or department accordance with as authorized performance conduct of a audit with the of child investigating performance (relating section service). protective

(5) to a court competent jurisdiction pursuant A court of order.

(6) Assembly, as A committee of the General standing oversight). (relating legislative section 6384 specified (7) Attorney General. investigat- officials in the course of Law enforcement of:

ing cases (i) abuse, Homicide, or seri- exploitation sexual sexual or not bodily by persons whether injury perpetrated ous related to the victim.

(n) by persons who are not perpetrated Child abuse family members.

(iii) injury to child under circum- Repeated physical child’s or is indicate that the health welfare stances which or harmed threatened.

(10) officials who shall receive reports Law enforcement gives the of which the initial review evidence that abuse abuse, homicide, sexual seri- exploitation is sexual or abuse by persons whether or not bodily injury perpetrated ous victim, the or perpetrated persons to child abuse related Reports not referred to law family who are members. provided by shall be on forms enforcement officials according promulgated by department. to the regulations

(11) commissioners, to County department whom the upon request, forward files for review when specific shall county youth of children and investigating competence the employees. 6340(a). § from legislatively It these apparent Pa.C.S. stigmatized R. is

imposed being eyes controls that the identity To dis- contrary, of his general public. in a persons very range to a small number narrow closed it understanding with not be revealed situations will Therefore, any to adverse ef- any unauthorized individuals. reputation his are limited. very fects on Next, deprivation the risk of an erroneous we consider R.’s at through procedurеs employed the use of value, if hearing, his expungement probable any, and the safeguards. challenge R. his to the fact additional restricts daughter to He permitted testify that his in camera. constitutionally protected right contends that this violated his to confront and her because he was not able to cross-examine attorney. see hear her communicate his testify with procedures little fault used to elicit find from testimony daughter. assessment, our making we are mindful of the nature of conducted inquiry being expungement hearing An expungement in it. plays cross-examination role that in an information determining whether

hearing is devoted being maintained or is is either inaccurate report indicated Act. Protective Services with the Child manner inconsistent (d). will 6341(c), determination This factual 23 Pa.C.S. of testimonial veracity credibility on the depend partly re- role a crucial plays Cross-examination evidence. expose testimonial the accused it enables gard because finder to discount сause a fact would weaknesses which v. Goldberg an adverse witness. testimony of weight of the 287, 300 L.Ed.2d 254, 270, 90 S.Ct. Kelly, 397 U.S. 474, 496-97, 79 360 U.S. McElroy, Greene (quoting (1959)). However, cross- 3 L.Ed.2d S.Ct. con- primary of forms. variety take a examination can evidence used apprised accused be cern is that the may opportu- have an case so that he the prove government’s challenge it. Id. nity to R. afforded discloses that was of the record

Our review in daughter testified R.’s guarantees. basic When these she attorney. After camera, in of R.’s presence she did so the examination, of her transcript on direct testifying finished to review attorney R. and his testimony provided ‍​‌​​‌​​​​​​​​‌‌​​‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‍was proce- This for cross-examination. preparation together govern- evidence the to what precisely allowed R. know dure case, opportunity R. an gave to its using prove ment was challenge to that evidence. opportunity that he was denied

As for R.’s contention attention to one attorney, R. calls our with his communicate that after the The record shows proceedings. point attorney R.’s daughter complete, of R.’s cross-examination his client. No review his notes with request was refused action, any. perceive nor do we offered for this reason is was otherwise able However, to which R. in view of the extent that this attorney, we conclude with his to communicate that he limited on the risk very impact incident had a isolated record expunge his request denied his erroneously would be report. of the indicated

458 his

R.’s that he should have been able to see and hear claim on two cases daughter as she testified is based which said often Supreme United Court States and cross-examination of wit- requires confrontation adverse v. 254, 269, 1011, Goldberg Kelly, 397 90 nesses. U.S. S.Ct. cases); v. 1021, 287, Willner (citing 300 25 L.Ed.2d Fitness, 96, 103, Committee on Character and U.S. 83 373 1180, 224, However, 1175, 229 nei- S.Ct. L.Ed.2d a “con- specify ther of those two cases manner which Indeed, by indicating must occur. confronta- frontation” they are always required, tion cross-examination reaffirm that due calls for principle рroce- the basic particular dures to meet the demands of the situation. tailored Matthews, 902, 96 S.Ct. at at 33 U.S. at L.Ed.2d Brewer, 471, 481, 92 (quoting Morrissey U.S. S.Ct. (1972)). L.Ed.2d 484 Matthews, according inquiry, The relevant is whether daughter as she testified would allowing R. to see hear have that he would suffer an erroneous reduced risk deprivation reputational of his interest. answer to in- question ways must take into account the two which is to use a procedure implemented. option could One closed television to the child to outside permit testify circuit presence of the accused. this would not offer those safeguards any greater provided by than procedure here. The material difference with closed employed operator circuit is that a video camera would take television no place There is reason to think stenographer. on that have an effect what the child said or how this would result, it. factual credibly she said As a the determination than it is. already would be no more reliable for testify The the child to the option second would It is that a presence generally of the accused. believed likely testify facing when he while witness is less to lie must Iowa, 1012, 1019, E.g., Coy v. the 487 108 accused. U.S. S.Ct. 2798, 857, 2802, 101 866 is not L.Ed.2d that the case when the witness is a child necessarily testifying him cause experience someone abused or her. Such an could

459 actually in the child witness and emotional distress significant Craig, truth-seeking Maryland process. the disserves 3170, 666, 857, 3157, 111 L.Ed.2d U.S. S.Ct. 108 S.Ct. at (citing 487 U.S. Coy, Thus, (Blackmun, J., it debatable dissenting)). is L.Ed.2d R. a here created risk procedure employed the whether left ultimate This deprivation. an would suffer erroneous examiner, in the hearing who was decision in the hands an to on assertion to whether act determine position best about apprehensive ad that the child was litem guardian her to confront father. having interest, the government’s last factor to consider fiscal and administra- the function involved and the

including re- procedural additional or substitute tive burdens that the inter- has stated its government will entail. The quirements Law follows: ests in the Child Proteсtive Services child an urgent are need of effective Abused children further them prevent suffering service to from protective of chapter is the this purpose and It injury impairment. of child abuse complete reporting suspected encourage more service county protective in each child and to establish and reports swiftly competent- of such investigating capable further and from abuse ly, protection for children providing parents services children and providing rehabilitative and to well-being of the child so as to ensure the involved life family appropriate. and wherever preserve stabilize 23 Pa.C.S. pursuit of declared interest that government’s

It here. deprivation complained pursuit being creates the service “urgent protective need of effective child injury impair- suffering from further and prevent [the child] id., ment,” authority respond has hearing examiner from a that a child will suffer face-to-face the assertion After a deter- with the accused. confrontation basis, has that a claim abuse a substantial mination agencies persons shares the information DPW Con- protective child functions. performing investigative placed on the our controls sequently, examination Legislature that the discloses of this information9 availability an that no one to it to such extent access has circumscribed govern- serve the position in a persons than those other See, identity. of R.’s to learn interest is authorized ment’s 6340(a). Thus, limited R. suffers deprivation Pa.C.S. interest. to serve the state’s strictly designed a situation which Thus, are presented we and makes of “indicated” abuse identifies a case government an inves performing persons information available function, accuracy of the when the or child tigatory protective at an administrative was determined information meaningful opportu had a of the abuse perpetrator where child, denied an. but where he was nity to cross-examine point at one attorney with his to communicate oрportunity balance, that were uti the procedures On proceedings. that R. would suffer limited risk very lized created a range in view of the narrow deprivation. erroneous govern and the identity is revealed in which R.’s of situations designed are disclosures permissible these few mental limited. serve, very itself was likewise deprivation all the circumstances, conclude that R. received we Under the to the the Fourteenth Amendment was due under he States Constitution. United guar- due process R. was denied we consider whether

Now R. cites Constitution. Pennsylvania provided by antees rights. I source of these 11 of Article as the and Sections nowhere those appears “due though process” the term Even from sections, are considered to emanate process rights them.10 1. It provides examine Section

First we and have independent, free and equally are born men [a]ll are among which rights, inherent and indefeasible certain supra. pp. 149-150 9. See recognized guaranteeing due Section 9 of Article I is alsо Medicine, Commonwealth, 529 Pa. Lyness v. State Bd. to individuals. Woodside, 535, 541, (1992) (citing Robert E. 605 A.2d (1985)). already Pennsylvania 120-21 As have Constitutional Law indicated, proceedings. only apply criminal guarantees its acquir- defending liberty, life and enjoying

those of ing, protecting property reputation, possessing and own pursuing happiness. of their Const, never I, synthesized art. 1. This Court has Pa. assessing protected for whether procedure of in violation I, deprived Article 1 has been Section However, recog- have guarantees. we process due provision’s guarantees provided resemble those closely nized how those to of the Fourteenth Amendment by the Due Process Clause Constitution. the United States Co., Ins. v. Mutual 357 Pa. Pennsylvania

In Wilcox Life (1947), that and inde- 581, 521 we said the inherent 55 A.2d property acquire, protect and right possess feasible to in the contained 14th substantially provision to the “amounts Constitution, that no shall to the Federal State Amendment of process ... of due ‘deprive any person property, without ” view in Id. аt 590, A.2d this law.’ 55 at 526. We reaffirmed 106, 141 A.2d Zoning Adjustment, v. Best Bd. of 393 Pa. 606 1 I of noting After that “Section of Article right ‘acquiring, of Pennsylvania Constitution establishes ...’”, we that protecting property “[t]he and said possessing of section are not from those requirements distinguishable this 1 of to Federal of Section the Fourteenth Amendment ... any any of deprive person Constitution —nor shall State ’” 110-11, Id. of law.... 141 property, process without due at (footnotes omitted).11 A.2d 609 Best Wilcox required Court determine the rights. Legislature’s power property limits of the affect Wilcox Best is reflected later cases. See 11. Our conclusion in 373, 382, 987, Krenzelak, (1983) v. 503 Pa. 469 A.2d 991 Krenzelak 271, Wilcox); approval Bailey, 398 157 (citing with Rubin v. Pa. A.2d (I960) (citing rejection challenged 882 federal court's of claim that the process justify trial statute violated federal due affirmance of court’s preliminary injunction challenged lift of statute therein decision to process Pennsylvania violating under 1 of I of the Section Article 879, Rivera, 588, 2, Constitution); n. A.2d v. 509 Pa. 590 506 Minnich 3001, (1986) 881 2 483 107 S.Ct. 97 L.Ed.2d 473 n. U.S. aff'd (1987) (noting analysis of the Court’s Fourteenth Amendment due that рrocess applies equally process Section 1 claim to due concerns under Constitution). Pennsylvania I of Article 462 1 Section the similarities between why

That is we focused on deprivations in the area Fourteenth Amendment and the the “Declara has noted this Court property. life, ‘in class with the same reputation of Rights places tion ” Broad Westinghouse Hatchard v. liberty property.’ 184, 194, Co., (quoting 532 A.2d 516 Pa. casting (1898)). Johnson, 12, 19, A. Pa. Meas depriva Therefore, guarantees apply the due force to apply equal under Section property tions of protected other and Section l’s of reputation deprivations are identical to those Moreover, guarantees those interests. the Due Process Clause protected extend to interests which this, adopt Amendment. view of the Fourteenth brought claims to assess due methodology Matthews Pennsylvania I of the Constitution. 1 of Article under Section involves iden analysis of the Matthews part The first assessing that is and implicated interest protected the tifying analyzed When we being deprived. to which it is the extent claim, Pennsylvania whether had to consider R.’s federal we by the right implicated R. a law conferred on that,was in pre that R.’s interest raises. We concluded concerns he recognized the sole interest his serving reputation the already performed have here. Since we law at issue state R. suffered no Four to determine that analysis Matthews violation, hold that R. was not denied teenth Amendment I the 1 of Article of by Section process guaranteed due as Constitution.12 Pennsylvania always process will not due violation

12. The absence of a federal It does so in disposition a state due claim. predetermine the of here, receives reputation, interest at stake this case because solely by its status as an interest process protections virtue of due Davis, 424 U.S. protected by Pennsylvania law. Paul v. recognized and Thus, 710-11, weight 47 L.Ed.2d at 419. 96 S.Ct. at analysis federal of the reputational carries in the Matthews Pennsyl- proteсtions enjoys it under strictly a reflection of claim is result, analysis yield the same the Matthews would vania law. As a process claim is irrespective R.’s state or federal due of whether result necessarily case if the interest being That will not be the examined. greater protections under our State being deprived ‍​‌​​‌​​​​​​​​‌‌​​‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‍is one that receives Federal Constitution. See Common- Constitution than it does under the 46, 63-64, Sell, (reaffirming 467 504 Pa. 470 A.2d wealth v. I, source of an additional as R. cites Article Section Constitution. Pennsylvania rights under scope of beyond fall hearings expungement R.’s Section is addressed. which Section proceedings provides injury an every man for open; be and courts shall

[a]ll shall have lands, reputation goods, person him in his done law, justice adminis- and right due course remedy by brought sale, delay. may Suits denial or tered without manner, in courts in such such Commonwealth against the law direct. Legislature may by as the such cases Const, terms, speaks I, Section By very § 11. its Pa. art. the administration the courts and accessibility to thе indicated expunge R.’s his request justice them. Since hearing, of an administrative as the result report was denied 11 was R.’s claim that Section proceeding, not a judicial no has merit. violated the Commonwealth affirm the Order of

Accordingly, we Court. J.,

LARSEN, decision of this case. participate did CAPPY, J., result. concurs PAPADAKOS, J., concurring dissenting opinion. files justice MONTEMURO, J., appointed who was in the decision of argument, participated time court at the a Senior capacity this case in Justice.

PAPADAKOS, Justice, concurring dissenting. and that statute under review agree majority I with the the Secretary his function to the clearly factfinding entrusts the case, Hearings of the Office of designee, in this the Director Our hearing examiner. and not to the individual Appeals, Com., Compensation Unemployment in Peak v. decision Board, (1985), controlling Pa. A.2d independent source of Pennsylvania the Constitution is an

the view that guaran- provide protections than those rights, greater it and that can Constitution). by teed Federal the statutory the conclusion that such a reviеw compels process. it permissible and that satisfies However, that he was denied his consti- Appellant complains when, during his administrative right tutional to due to confront his accuser. I must hearing, permitted he was not I, therefore, dissent. agree position with his testimony the During expungement hearing, Appellant’s was taken victim, sexual abuse daughter, alleged camera over his he denied his objection being right was cross-examination. No claim of confrontation and effective testify would be unable to daughter was ever made that his given denying and no reason was by Appellant, when faced litem ad Furthermore, guardian Appellant’s request. that, acknowledged the child witness appointed represent was she understood although daughter apprehensive, do so. prepared and she was facing Appellant, she would be overruled, a continuance was objection After was Appellant’s could be taken from this determi- appeal so that an requested similarly denied. request natiоn. This was transcript to review the given opportunity Appellant testimony prior direct to cross-examination. daughter’s of the cross-examination, attorney re- during Appellant’s testimony the notes of quested opportunity to review by request This was also denied Appellant. examiner. a due right contends that to confrontation is

Appellant Pennsylvania Constitution process right guaranteed criminal proceed- which extends to administrative as well as ings. right guaran-

This Court has held that the of confrontation I, 9,§ Pennsylva- criminal Article teed to defendants testimony proceed- mandates that in criminal nia Constitution Ludwig, face-to-face. Commonwealth 527 Pa. ings given Lohman, Commonwealth v. (1991); Pa. 594 A.2d 281 492, 594 A.2d 291 Ludwig, case, accuser, a sexual abuse her foster

mother, room operator sepa- and the video camera were defense judge, prosecutor, from court room. The rate in and counsel, defendant, all the court room jury were and monitor. The microphone and video to child by linked room, hear in but could the court people could not see child questions. and to their respond them Lohman, abuse, the accusers invоlving sexual also case the judge, of testimony presence in in their chambers gave counsel, jury The operator. and camera prosecutor, defense defendant, jury’s room, without was the court room, to in a able communicate knowledge, separate line. telephone two-way over direct counsel by the trial procedures employed This court found that the Ludwig and Lohman violated guar- the defendants’ courts confrontation. to “face face” right anteed constitutional this is whether basic question left us determine in administrative cases guarantee is mandated constitutional this, allegation an where the issue also involves such are more procedures employed sexual abuse where in Ludwig than those used factfinding process obtrusive to the and Lohman. of due principles

There doubt that the basic should little before administrative fully applicable hearings are Police, Pennsylvania v. State 500 Pa. Soja tribunals. Woods, (1982); Wiley 393 Pa. A.2d A.2d 613 Indeed, important setting where every almost fact, process requires an questions turn on decisions adverse witness- to confront and cross-examine opportunity Soja. es. on has often elaborated Supreme

The United States Court principle. immutable relatively have remained principles Certain governmen- is that where our One these jurisprudence. individual, the reason- seriously injures tal action the evidence findings, fact depends ableness of the action on be disclosed to used to case must prove Government’s has to show that it is the individual so that he opportunity documentary in the important untrue. case While this the evidence evidence, where important it is even more memory whose of individuals testimony consists fact, or who, perjurers be faulty might or might be vindictiveness, intolerance, malice, by motivated persons these protec- have formalized jealousy. or We prejudice, and cross-exami- of confrontation requirements tions the They expression roots. find They nation. have anciеnt zealous to This Court has been the Amendment.... Sixth not It has out spoken from erosion. rights these protect in all of cases cases, types ... but also in criminal only scrutiny. under administrative ... actions were where added). (Emphasis 269, 1011, 1021, 25 Kelly, v. S.Ct.

Goldberg U.S. (1970). L.Ed.2d cannot be

Likewise, adjudicatory action have held that tribunal, administra judicial whether by any taken validly has the tive, hearing party wherein each upon a except to hear the opponent, the claims of his to know of opportunity witnesses, him, to cross-examine against evidence introduced behalf, argu and to make on his own to introduce evidence Police, Pennsylvania State 494 Pa. Callahan ment. A.2d 946 clause is by secured the confrontation primary through it is cross- because to cross-examination right of a witness’ credibility and truthfulness that the examination testimony are tested. out is to draw of cross-examination purpose

Another critical the factfinder may which be viewed discrediting demeanor credibility factfinder in his assessment and used permit- For this reason the cross-еxaminer of the witness. testimony to test into the witness’ direct to delve ted memory, impeach but also to perceptions witness’ by revealing may accomplished This discredit the witness. biases, they ulterior motives as or other possible prejudices, case. directly personalities relate to issues might hindered, inas cross-examination right When becomes confused case, finding process entire fact present Here, Appellant’s question. into reliability its is drawn during contacting Appellant from prohibited counsel was completed had counsel Appellant’s cross-examination. When noted possible, he as was much cross-examination divulged during cross- key were items examiner direct exami- during never discussed which were examination this, opportunity requested on counsel nation. Based with Appellant. to be reviewed testimony him, or ade- testimony against hear the testify, the witness that testimo- regarding counsel communicate with his quately ny. in like Ludwig particularly relevant cases in

What we said in protecting cognizant society’s this. “We are be interest cannot of sexual abuse. victims to confront right constitutional over the accused’s preeminent 527 Pa. at him face to face.” against the witnesses A.2d at similarity to of this and its

I believe that the nature case unjust- and Lohman similar The Ludwig requires treatment. have would never placed upon Appellant ifiable limitations permit- and cannot be permitted proceeding in criminal been can of which hearing, in administrative outcome ted re- The indicated Appellant. repercussions have serious of fact that finding with it a of child abuse carries port on injury” or mental physical “serious Appellant committed which if not is evidence report, expunged, This daughter. in- investigating alleged to others who are can released such by Appellant, allegedly of child abuse committed stances General, services, Attorney protective as other child indi- courts, specified other law enforcement officers and the this information сan 23 Pa.C.S. 6340. Since viduals listed at (23 in be used the course of criminal investigations Pa.C.S. §§ 6340(a)(9), (10),1 we would be if remiss we did not insure findings of child abuse are as possible, reliable as when an accused confronts his accuser and participates cross-examination. Neither of these basic de- truth-testing vices Appellant were available to and require a reversal. scholarly attempt majority opinion deny Appellant field, a basic human right, playing level obfuscates the simple fact that Appellant’s reputation and livelihood are placed great jeopardy permanent of an recording Report Indicated of Abuse. a report, Such available to so many public agencies, effect convicts the Appellant and him sentences to a denial of employment opportunities areas where children are concerned.

Accordingly, I dissent and would reverse the order of the Commonwealth Court and remand for a hearing. new 6340(a) provides pertinent рart: 23 Pa.C.S. (a) Reports General ... shall be made available to: rule — (9) Law enforcement officials in investigating the course of cases of: (i) Homicide, ‍​‌​​‌​​​​​​​​‌‌​​‌​​‌‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‍abuse, exploitation sexual bodily sexual or serious injury perpetrated by persons whether or not related to the victim. (ii) perpetrated by persons Child abuse family who are not mem-

bers. (iii) Repeated physical injury to a child under circumstances which indicated that the child’s health or welfare is harmed or threatened. (10) Law reports enforcement officials who shall receive of abuse in homicide, gives which the initial review evidence that the abuse is abuse, exploitation sexual bodily sexual injury perpetrated or serious victim, by persons whether or not related to the or child abuse perpetrated by persons family who are not members. notes print set This frustrated the cross- was denied. request Counsel’s opportunity no had Appellant since examination testimony. regarding the witness’ to counsel give input to see ability denied the Appellant was importantly, More

Case Details

Case Name: R. v. Com., Dept. of Public Welfare

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 4, 1994

Citation: 636 A.2d 142

Docket Number: 22 E.D. Appeal Docket 1992

Court Abbreviation: Pa.