Background
Pennsylvania’s Child Protective Services Law, 23 Pa.C.S. §§ 6301–6386, requires the Department of Human Services (Department) to list persons found to be “indicated” perpetrators of child abuse on the ChildLine and Abuse Registry—a statewide database checked in background screenings for employment in child-care and elder-care settings, professional licensure, adoptions, and foster placements. Subjects of indicated reports have 90 days to file an administrative appeal with the Bureau of Hearings and Appeals (BHA). A.S. and R.S., a husband and wife (names sealed), were notified in July 2021 that they had been listed as indicated perpetrators following a 2021 investigation. Their attorney immediately prepared appeal forms and, on July 22, 2021—well within the 90-day window—simultaneously faxed and mailed the appeals to both the BHA and ChildLine, retaining fax confirmation sheets showing successful transmission to each agency’s dedicated fax number.
Neither agency ever recorded receiving the appeals. The Department’s physical offices had been closed during the COVID-19 pandemic, and staff was only sporadically checking fax machines. After months of silence, counsel filed entries of appearance in February 2022. A March 29, 2022 phone call with the Department revealed that no appeals existed in the system. Counsel immediately, while still on the phone, re-faxed the appeals. The Department’s own counsel accepted counsel’s representations as an officer of the court and acknowledged it had “no explanation as to why they did not arrive.” The Department did not allege any prejudice from the delay. An ALJ nonetheless dismissed the appeals as untimely and denied nunc pro tunc relief, questioning the fax confirmations in part because they listed the day as Thursday—when the ALJ believed July 22, 2021 was a Wednesday. (July 22, 2021 was in fact a Thursday.)
The Court’s Holding
President Judge Cohn Jubelirer, writing for the panel, reversed and remanded for BHA to hear the appeals on the merits. Citing R.H. v. Department of Human Services, 205 A.3d 410 (Pa. Cmwlth. 2019), the court applied the three-part nunc pro tunc test: (1) the appeal was filed within a short time after learning of the untimeliness; (2) the elapsed period is short; and (3) the respondent is not prejudiced. All three prongs were satisfied—counsel re-filed the same day he learned the appeals were missing, the refiling was immediate, and the Department conceded no prejudice.
Separately, the court found that the record supported either a non-negligent circumstance or an administrative breakdown sufficient to independently warrant nunc pro tunc relief. The fax confirmations were corroborated by emails showing the transmissions and by cover letters bearing the July 22 date. The court emphasized that this was not a last-minute filing—appeals were sent well before the deadline by two delivery methods. COVID-era office closures and sporadically checked fax machines created the very conditions that prevented Petitioners from knowing their faxes had not been processed. The Department’s implicit acceptance that appeals had been sent but not received—confirmed through its counsel’s acknowledgment at the administrative hearing—further supported the inference of administrative breakdown. “This alone is sufficient grounds to grant Petitioners nunc pro tunc relief,” the court concluded.
Key Takeaways
- A petitioner who satisfies all three prongs of R.H.’s nunc pro tunc test—short time to refile after discovering untimeliness, short elapsed period, and no prejudice to the respondent—is entitled to have the administrative appeal heard on the merits, even if substantial time passed between the original deadline and actual receipt.
- COVID-era office closures that caused agencies to sporadically check fax machines can constitute the “administrative breakdown” that independently warrants nunc pro tunc relief under Pennsylvania administrative law; the Department’s own acknowledgment that it had no explanation for why the faxes were not received was treated as implicit confirmation of that breakdown.
- Fax confirmation sheets corroborated by contemporaneous emails and dated cover letters may establish timely transmission even when a fax confirmation shows a technically incorrect day of the week, provided the underlying date is correct.
- Practitioners appealing ChildLine indicated reports should send appeals by multiple methods before the deadline, preserve fax confirmations and corroborating emails, and file entries of appearance promptly if the agency sends no acknowledgment.
Why It Matters
An indicated finding on the ChildLine Registry can follow a person for years. It is checked whenever a person applies to work in child-care or elder-care settings, seeks professional licensure in fields involving children, or pursues an adoption or foster placement. Losing the right to contest an indicated finding because of a bureaucratic failure to process a timely fax—especially during pandemic-era office shutdowns—would be a severe and potentially disproportionate consequence. This decision makes clear that Pennsylvania courts will not penalize diligent litigants for agency dysfunction: when counsel acts promptly, uses multiple transmission methods, and the agency accepts that the transmissions were sent but offers no explanation for why they were not received, nunc pro tunc relief is appropriate.
The opinion also has practical implications beyond the ChildLine context. COVID-related administrative disruptions remain relevant in pending proceedings, and agencies that only sporadically processed incoming communications during the pandemic may face nunc pro tunc arguments wherever their own processing failures contributed to missed deadlines. Practitioners who represent individuals in administrative appeals should document every transmission method used and follow up early and often if they receive no agency acknowledgment.