C.S. v. PA DHS, Bureau of Hearings and Appeals

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
C.S., :
Petitioner :
: No. 440 M.D. 2017
v. :
: Submitted: January 26, 2018
Commonwealth of Pennsylvania, :
Department of Human Services, :
Bureau of Hearings and Appeals, : CASE SEALED
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: April 10, 2018
Before the Court in our original jurisdiction are the preliminary objections
filed by the Department of Human Services, Bureau of Hearings and Appeals (BHA),
to the petition filed by C.S. (Petitioner).
On September 29, 2017, Petitioner filed a petition for review, stylized as
a “Petition for Declaratory Judgment” (Petition), averring as follows. Petitioner is
certified in Pennsylvania as a professional educator. He was indicated as a perpetrator
of child abuse in two separate reports filed by the County Children and Youth Services
(CYS) and placed on the Childline Registry. Petitioner then filed petitions to expunge
the indicated reports and, on appeal, the BHA sustained one indicated report and
dismissed the other as unfounded. Both cases are currently pending before this Court.1
(Petition, ¶9.)
Meanwhile, the Department of Education, Professional Standards and
Practices Commission (Commission), commenced a disciplinary proceeding against
Petitioner’s professional license. Based upon pre-hearing statements filed with the
Commission, Petitioner discovered that “persons who testified in the two separate child
abuse expunction proceedings before the [BHA] are expected to testify.” (Petition, ¶9.)
In filing the Petition, Petitioner desires “to use the transcripts of the prior testimony
taken from such persons in the child abuse expunction proceeding in cross-examining
them at the upcoming hearing on the action before the . . . Commission.” (Petition,
¶10.)
According to Petitioner, the transcripts are designated as confidential
information under statutory law and counsel for the Commission objects to their
disclosure during the licensing matter. Petitioner seeks a declaration authorizing him
to utilize the transcripts for the stated purpose, asserting that the theory of fundamental
fairness inherent in the Due Process Clause2 mandates this result.
On November 1, 2017, the BHA filed preliminary objections, contending
that the Petition failed to state a claim upon which relief can be granted. The BHA
further asserts that the Petition does not conform to law or rule of court.
Thereafter, Petitioner filed an answer and, in proper course, both parties
submitted briefs in support of their respective positions.
1
See Nos. 1294 C.D. 2016; 1412 C.D. 2017.
2
U.S. Const. amend. XIV, §1.
2
Discussion
Failure to State a Claim (Demurrer)3
The BHA contends that the transcripts of the witnesses’ testimony in the
expungement proceedings are confidential material under the Child Protective Services
Law (CPSL)4 and supersede any due process rights that Petitioner may have. Petitioner
argues the converse.
As a constitutional concept, due process is fully applicable to
administrative hearings involving substantial property and/or liberty rights. Soja v.
Pennsylvania State Police, 455 A.2d 613, 615 (Pa. 1982). Upon receiving his
educator’s license, Petitioner secured a protected property interest in the practice of his
profession and, as such, “he must be afforded procedural due process in adjudicating
any administrative charges against him.” Telang v. Bureau of Professional and
Occupational Affairs, 751 A.2d 1147, 1150 (Pa. 2000). Petitioner also possesses a
protected liberty interest in his reputation, which independently entitles him to
procedural due process under the Pennsylvania Constitution as “an individual accused
of child abuse.” Northumberland County Children & Youth Services v. Department of
Public Welfare, 2 A.3d 794, 798 (Pa. Cmwlth. 2010); see R. v. Department of Public
Welfare, 636 A.2d 142, 149 (Pa. 1994).
Broadly speaking, the principles of due process “require an opportunity,
among other things, to hear the evidence adduced by the opposing party, cross-examine
3
In ruling on preliminary objections in the nature of a demurrer, the Court must accept as true
all well-pleaded material facts and all inferences reasonably deducible therefrom. Barndt v.
Pennsylvania Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006). However, the
Court is not required to accept as true legal conclusions, unwarranted factual inferences,
argumentative allegations, or expressions of opinion. Armstrong County Memorial Hospital v.
Department of Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013) (en banc).
4
23 Pa.C.S. §§6301-6386.
3
witnesses, introduce evidence on one’s own behalf, and present argument.” D.Z. v.
Bethlehem Area School District, 2 A.3d 712, 720 (Pa. Cmwlth. 2010). “In almost every
setting where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses,” and this holds true even
when “administrative . . . actions were under scrutiny.” Goldberg v. Kelly, 397 U.S.
254, 269-70 (1970); see Hammad v. Bureau of Professional and Occupational Affairs,
State Board of Veterinary Medicine, 124 A.3d 374, 381 (Pa. Cmwlth. 2015). The
United States Supreme Court has described cross-examination as “a right traditionally
relied upon expansively to test credibility as well as to seek the truth.” Pillsbury Co.
v. Conboy, 459 U.S. 248, 259 (1983). Indeed, cross-examination is “the greatest legal
engine ever invented for the discovery of the truth,” California v. Green, 399 U.S. 149,
158 (1970), and is “a vital feature of the law.” Greene v. McElroy, 360 U.S. 474, 497
(1959) (citation omitted).
However, section 6339 of the CPSL declares that reports of child abuse,
as well as “any other information obtained . . . concerning alleged instances of child
abuse . . . shall be confidential.” 23 Pa.C.S. §6339.5 In turn, section 6340 of the CPSL
5
In its entirety, this section provides:
Except as otherwise provided in this subchapter or by the Pennsylvania
Rules of Juvenile Court Procedure, reports made pursuant to this
chapter, including, but not limited to, report summaries of child abuse
and reports made pursuant to section 6313 (relating to reporting
procedure) as well as any other information obtained, reports written or
photographs or X-rays taken concerning alleged instances of child
abuse in the possession of the department or a county agency shall be
confidential.
23 Pa.C.S. §6339. Section 6313(a) of the CPSL states that a person required to report child abuse
must submit oral and written reports to the Department of Human Services (Department) or county
agency within certain time-frames. 23 Pa.C.S. §6313(a).
4
lists 18 exceptions and allows for disclosure of child abuse reports and other
information to specified persons, entities, and agencies, while mandating that some
persons, entities, and/or agencies receive only limited information. 23 Pa.C.S. §6340.6
6
In a somewhat condensed version, this section states:
(a) General rule.— Reports specified in section 6339 (relating to
confidentiality of reports) shall only be made available to:
(1) An authorized official of a county agency, of a Federal agency that
has a need for such information to carry out its responsibilities under
law to protect children from abuse and neglect . . . [;]
(2) A physician examining or treating a child . . . [;]
(3) A guardian ad litem or court designated advocate for the child;
(4) An authorized official or agent of the department in accordance
with department regulations or in accordance with the conduct of a
performance audit . . . [;]
(5) A court of competent jurisdiction . . . pursuant to court order or
subpoena in a criminal matter involving a charge of child abuse . . . .
Disclosure through testimony shall be subject to the restrictions of
subsection (c);
(5.1) A court of common pleas in connection with any matter involving
custody of a child as set forth in sections 5328 (relating to factors to
consider when awarding custody) and 5329.1 (relating to consideration
of child abuse and involvement with protective services);
(6) A standing committee of the General Assembly . . . [;]
(7) The Attorney General;
(8) Federal auditors if required for Federal financial participation in
funding of agencies . . . [;]
(9) Law enforcement officials of any jurisdiction, as long as the
information is relevant in the course of investigating cases of [crimes
and abuse];
(10) The district attorney’s office or other law enforcement official . .
. [;]
(11) Designated county officials, in reviewing the competence of the
county agency or its employees pursuant to this chapter . . . [;]
(12) A mandated reporter of suspected child abuse under section 6311
. . . [;]
(13) School administrators and child-care service employers . . . [;]
(14) A prospective adoptive parent, approved by an adoption agency,
5
For example, section 6340(b) authorizes disclosure of confidential
information to the “subject of the report,” 23 Pa.C.S. §6340(b), which is defined in
pertinent part as “any alleged or actual perpetrator in a report made to the department
or a county agency.” Section 6303(a) of the CPSL, 23 Pa.C.S. §6303(a). As the alleged
when considering adopting an abused child in the custody of a county
agency . . . [;]
(15) Appropriate officials of another county or state regarding an
investigation related to child abuse or protective services when a family
has moved to that county or state . . . [;]
(16) Members of citizen review panels convened pursuant to section
6343.1 (relating to citizen review panels) . . . [;]
(17) A member of a child fatality or near fatality review team under
section 6365(d);
(18) The Department of the Auditor General in conjunction with the
performances of the duties designated to the Office of Auditor General,
except that the Auditor General may not remove identifiable reports or
copies thereof from the department or county agency.
(b) Release of information to subject.— Upon a written request, a
subject of a report may receive a copy of all information, except that
prohibited from being disclosed by subsection (c), contained in the
Statewide database or in any report filed pursuant to section 6313
(relating to reporting procedure).
(c) Protecting identity.— Except for reports under subsection (a)(9)
and (10) and in response to a law enforcement official investigating
allegations of false reports under 18 Pa.C.S. §4906.1 (relating to false
reports of child abuse), the release of data by the department, county,
institution, school, facility or agency or designated agent of the person
in charge that would identify the person who made a report of suspected
child abuse or who cooperated in a subsequent investigation is
prohibited. Law enforcement officials shall treat all reporting sources
as confidential informants.
23 Pa.C.S. §6340(a)-(c).
6
perpetrator of “child abuse,”7 Petitioner is entitled “to receive a copy of all the
information in the Statewide central register or in any report filed with the county
agency.” Northumberland County Children & Youth Services, 2 A.3d at 801; see 23
Pa.C.S. §6340(b). Petitioner alleges that, consistent with this statutory scheme, he
presently “has copies of the testimonial transcripts,” (Brief at 9),8 and requests an order
from this Court approving their usage for cross-examination in the licensing matter.
We note, as “a general rule, discovery as provided by the rules of civil procedure are
not available in administrative proceedings.” Pennsylvania Bankers Association v.
Department of Banking, 981 A.2d 975, 997 n.18 (Pa. Cmwlth. 2009).
Importantly, in its current codification, section 6340(5) also permits
disclosure of all confidential information, except for the identity of those persons
reporting child abuse and/or cooperating with an investigation, pursuant to an “order
or subpoena in a criminal matter involving a charge of child abuse.” 23 Pa.C.S.
§6340(5). With the same exception, disclosure of all confidential information is
allowed under section 6340(5.1) in “any matter involving custody of a child” and
particularly when the case involves an allegation of child abuse. 23 Pa.C.S.
7
When we refer to the term “child abuse,” we intend the phrase to have global and broad
meaning, but at least encompassing the conduct prescribed in the CPSL as any act or failure to act,
committed in an intentional, knowing, or reckless manner, that causes a child to sustain bodily injury,
serious mental injury, sexual abuse or exploitation, or otherwise constitutes neglect endangering the
life or development of the child. See 23 Pa.C.S. §6303(b)(1). This definition of child abuse naturally
subsumes conduct that is designated as a crime under the Crimes Code, 18 Pa.C.S. §§101-9402, as
well as conduct that could result in adverse consequences in dependency and custody matters. See
generally In re L.V., 127 A.3d 831 (Pa. Super. 2015); M.W. v. S.C.W (Pa. Super., No. 468 MDA 2014,
filed November 18, 2014) (unreported); see also infra n.18.
8
Section 6336(a) of the CPSL documents and limits the specific type of information that must
be obtained in the Statewide database. 23 Pa.C.S. §6336(a). Among the information required to be
included is “[t]he progress of any legal proceedings brought on the basis of the report of suspected
child abuse.” 23 Pa.C.S. §6336(a)(15).
7
§6340(5.1).9 Finally, section 6339, working in tandem with a Rule of Juvenile Court
Procedure, permits disclosure of confidential information related to child abuse when
the county agency intends to submit that evidence in a dependency hearing as proof
that the child is not receiving proper parental care. See 23 Pa.C.S. §6339; Pa.R.J.C.P.
1800(8).10 In these three proceedings, by virtue of the disclosure, the “defendant”11
can use the information once protected by the CPSL as rebuttal evidence, assuming it
meets any other requirements for admissibility.
Here, the parties agree that the transcripts fall within the scope of section
6339 as “any other information obtained” by the county agency and constitute
confidential information. Facially, there is no readily discernable exception in section
9
Added by Section 11 of the Act of December 15, 1998, P.L. 963, and later amended by
Section 6 of Act 2013-107, P.L. 1167.
10
On August 21, 2006, our Supreme Court adopted Pennsylvania Rule of Juvenile Court
Procedure 1800(9), and suspended section 6339 to the extent the statute was inconsistent with Rule
1340(B)(1)(e), which provides for the disclosure of reports if the reports will be used as evidence in
a hearing to prove dependency of a child. Pa.R.J.C.P. 1340(B)(1)(e). See Pa.R.J.C.P. 1800(9) (“This
rule provides for the suspension of the following Acts of Assembly that apply to dependency
proceedings only . . . The Act of December 19, 1990, P.L. 1240, No. 206, §2, 23 Pa.C.S. §6339, which
provides for the confidentiality of reports made pursuant to the [CPSL], is suspended only insofar as
the Law is inconsistent with Rule 1340(B)(1)(e), which provides for the disclosure of such reports if
the reports are going to be used as evidence in a hearing to prove dependency of a child.”); Pa.R.J.C.P.
1340(B)(1)(e) (Mandatory disclosure) (“The county agency shall, when applicable, permit a party to
inspect and copy or photograph . . . any police reports, records of prior county agency involvement,
or records of current or prior reports involving the [CPSL] that the county agency intends to use as
evidence at a hearing”).
Our General Assembly apparently recognized this rule when it revised section 6339 in 2014
and added the phrase, “or by the Pennsylvania Rules of Juvenile Court Procedure.” See Section 7 of
Act 2014-153, approved October 22, 2014, eff. December 31, 2014.
11
We use the term “defendant” in its general sense to describe an individual against whom
accusations are made, irrespective of the nature or label attached to the proceedings in which they are
made.
8
6340 that would enable Petitioner to use and disclose the content of the transcripts in
the licensing matter. The issue then becomes whether, notwithstanding the fact that
the transcripts are deemed confidential under the CPSL, the Due Process Clause
preempts the statute and says otherwise.
In determining what procedural due process requires in a given context,
we employ the Mathews test, which balances (1) the private interest affected, (2) the
risk of erroneous deprivation of that interest through existing procedures and the
probable value, if any, of additional procedural safeguards, and (3) the governmental
interest, including costs and administrative burdens of additional procedures. Mathews
v. Eldridge, 424 U.S. 319, 335 (1976); see City of Philadelphia v. Perfetti, 119 A.3d
396, 403 (Pa. Cmwlth. 2015) (en banc). The decisions of the United States Supreme
Court establish that due process is a flexible concept, and the nature and extent of the
process necessitated by the Constitution will vary depending upon the particular
circumstances under which the deprivation of a protected liberty or property interest
may occur. Walters v. National Association of Radiation Survivors, 473 U.S. 305, 320
(1985).
Reviewing the pertinent case law, we conclude that the first Mathews
factor weighs heavily in favor of Petitioner. As mentioned above, he has a protected
property interest in his profession and a fundamental liberty interest in his reputation.
See D.C. v. Department of Human Services, 150 A.3d 558, 564 (Pa. Cmwlth. 2016) (en
banc). It is a bedrock principle that once a professional license is acquired, it becomes
“a valuable privilege or right in the nature of property,” Shah v. State Board of
Medicine, 589 A.2d 783, 787 (Pa. Cmwlth. 1991), and “[t]here is little doubt that
Petitioner has a substantial interest to be protected.” Bhattacharjee v. Department of
State, 808 A.2d 280, 283 (Pa. Cmwlth. 2002); see Telang, 751 A.2d at 1150. Where,
9
as here, an administrative body is empowered to impose sanctions, which may include
the revocation of a license to practice in the Commonwealth, “our courts have
frequently recognized the severity of depriving a person of the means of a livelihood.”
Shah, 589 A.2d at 789.
At the same time, “[p]lacement on a registry for alleged child abuse causes
damage to the alleged abuser, primarily in the form of reputational harm and
employment repercussions.” J.P. v. Department of Human Services, 170 A.3d 575,
581 (Pa. Cmwlth. 2017). The CPSL imposes a mandatory duty on the Department to
provide the school administrator of Petitioner’s employer with notice of the original
allegation and a copy of the indicated report of child abuse. 23 Pa.C.S. §6340(13)(i).
Emphasizing the lack of an adequate pre-deprivation procedure in the statute, this Court
has acknowledged that harm occurs to an individual’s reputation the moment the abuse
is reported, the aggravation of which continues unless or until the record is expunged.
J.P. 170 A.3d at 581-82; see D.C., 150 A.3d at 563-67.
Prospectively, in the licensing matter, the Commission may order a
“public reprimand” against Petitioner if it finds that he committed child abuse. 22 Pa.
Code §235.5; see Section 9.3 of the Professional Educator Discipline Act (PEDA),12
24 P.S. §2070.9c, added by Section 6 of Act 2013-120. In any case where the
Commission does not impose a “private” reprimand or sanction, the decision of the
Commission and the reasons for its disciplinary measures “shall become public,”
section 17.2 of PEDA, 24 P.S. §2070.17(b), added by Section 11 of Act 2013-120,13
12
Act of December 12, 1973, P.L. 397, 24 P.S. §§2070.1a-2070.18a, as amended.
13
More specifically, in the event the Commission orders “public discipline,” all the “records
pertaining to proceedings . . . shall become public” upon the “exhaustion of all appeals” or, if the
Commission determines, immediately and at the time it imposes the discipline, “excluding those
records that are privileged or otherwise protected from release.” 24 P.S. §2070.17.2(a).
10
with the “adjudication” specifically made “available on a publicly accessible Internet
website.” Section 15 of PEDA, 24 P.S. §2070.15, added by Section 8 of Act 2013-
120. With this information being open and readily accessible to the eyes of the general
public, the danger of stigmatization and ostracism is paramount. Cf. G.V. v.
Department of Public Welfare, 91 A.3d 667, 672-73 (Pa. 2014); R., 636 A.2d at 150.
Consequently, there is a clear and present risk that Petitioner’s reputation, as well as
the reputation of others in similar circumstances, will be severely tarnished as a result
of the license matter.
Moreover, as alleged by Petitioner, two witnesses from the expungement
proceedings are expected to testify in the licensing matter against him, where the
Commission will serve as the fact finder and presumably issue factual findings
regarding the alleged incidents of abuse. See Boguslawski v. Department of Education,
837 A.2d 614, 617-18 (Pa. Cmwlth. 2003). “Cross-examination plays a crucial role in
this regard because it enables the accused to expose testimonial weaknesses which
would cause a fact finder to discount the weight of the testimony of an adverse
witness.” R., 636 A.2d at 150. In Pennsylvania, “[i]t is well established that prior
inconsistent statements are admissible as substantive evidence and for impeachment
purposes,” Commonwealth v. Simmons, 662 A.2d 621, 637 (Pa. 1995), and are one of—
if not the most effective—ways through which to discredit a witness. See generally
Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986).
The courts have been uniform in concluding that, absent sufficient
justification, the state must disclose to the defense any prior statements of an
adversarial witness in administrative proceedings. See Ubiotica Corporation v. Food
and Drug Administration, 427 F.2d 376, 381 (6th Cir. 1970); Chief, Montgomery
County Department of Police v. Jacocks, 436 A.2d 930, 934-36 (Md. Ct. Spec. App.
11
1981). The supporting rationale is that administrative proceedings “must satisfy the
pertinent demands of due process,” Harvey Aluminum (Incorporated) v. National
Labor Relations Board, 335 F.2d 749, 753 (9th Cir. 1964), and “simple justice, the
fundamentals of fair play, require no less,” Communist Party v. Subversive Activities
Control Board, 254 F.2d 314, 328 (D.C. Cir. 1958).
In the words of one court:
Depriving the defense of [previous] statements of opposition
witnesses who testify greatly impairs such full presentation
and rebuttal and obliterates the opportunity for meaningful
cross-examination. Without access to such statements, the
defense is unable to test the memory, consistency, or veracity
of the witnesses. In short, the best tool of cross-examination
is denied the defense when [prior] statements are withheld.
Greco v. State Police Merit Board, 245 N.E.2d 99, 102 (Ill. App. Ct. 1969).
With respect to the second factor—the risk of erroneous deprivation—our
legal system “assumes that adversarial testing will ultimately advance the public
interest in truth and fairness.” Polk County v. Dodson, 454 U.S. 312, 318 (1981). In
this vein, “[i]t is evident that any restriction . . . on the opportunity for . . . cross-
examination of adverse witnesses enhances the risk of an erroneous deprivation.” In
re A.M., 13 P.3d 484, 488 (Okla. 2000).
Undoubtedly, a transcript of a witness’ prior testimony is essential for
purposes of cross-examination and may provide a defendant with critical information
to effectively challenge the evidence presented against him in an administrative
proceeding. See R., 636 A.2d at 149; see also A.Y. v. Department of Public Welfare,
641 A.2d 1148, 1151-52 (Pa. 1994).14 In cases where child abuse is alleged, there are
14
In A.Y., our Supreme Court condemned the practice of sustaining an indicated report based
solely on hearsay evidence reciting what the child had stated had occurred. Emphasizing the
constitutional right of reputation, the Court concluded that this procedure denied the accused of the
12
“unique problems of proof, especially where there exists no independent physical
evidence of abuse,” A.Y., 641 A.2d at 1152, the outcome oftentimes depends on
credibility and weight determinations, and even the uncorroborated testimony of a
victim, alone, is enough to sustain criminal convictions of the greatest magnitude. See
Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999).15 The very nature of
this type of proceeding, too, increases the chances for an erroneous deprivation, and
further supports the need to use evidence that discredits a witness’ testimony. See
Goldberg, 397 U.S. at 369-70; cf. Harris v. Department of Corrections, 714 A.2d 492,
496 (Pa. Cmwlth. 1998).16 If Petitioner were not allowed to conduct the cross-
examination he desires, the Commission would not have the benefit of information
necessary to fully and fairly assess the credibility and weight of the witnesses’ present
testimony. Cf. Doe v. United States Department of Justice, 753 F.2d 1092, 1112-14
(D.C. Cir. 1985).17
right to review and challenge the evidence against him and prevented the fact finder from making a
fair assessment of the evidence. Consequently, the Court created a set of guidelines to ensure that an
indicated report be founded upon trustworthy evidence.
15
In Bishop, the child testified at trial in a criminal case regarding the incidents of abuse. The
Superior Court, noting the “well-established” rule that “even the uncorroborated testimony of the
complaining witness is sufficient to convict a defendant of sexual offenses,” 742 A.2d at 189, upheld
the defendant’s convictions for involuntary deviate sexual intercourse and aggravated indecent
assault, both of which are felonies of the first degree. See Sections 3123, 3125 of the Crimes Code,
18 Pa.C.S. §§3123, 3125.
16
In Harris, a case where the Department of Corrections sought damages from an inmate due
to his destruction of property, this Court explained that the risk of deprivation was minimal because
the proceedings to determine damages are usually based on invoices reflecting the amount the
Department paid and do not hinge on the credibility of the witnesses.
17
In Doe, the Court of Appeals for the District of Columbia Circuit ruled that there was great
risk for erroneous deprivation when the complainant, an employee of the federal government, was
terminated based on information contained in affidavits from individuals whose reliability and
13
Notably, regarding the related, subsidiary factors of the Mathews test, the
administrative and financial burden in permitting Petitioner to use the transcripts during
cross-examination are negligible. Otherwise, the value of the procedural safeguard is
considerably high and would greatly minimize the risk that Petitioner, and people like
him, are divested of constitutional rights by way of a factual finding that is in error.
Considering the government’s interest, the purpose of the confidentiality
provision is “to protect abused children by encouraging more complete reporting of
suspected child abuse without fear that information provided will be made public,”
Northumberland County Children & Youth Services, 2 A.3d at 799, and “by ensuring
that persons with knowledge of abuse are not deterred from reporting it by the prospect
of the abuser learning their identity and seeking retribution.” V.B.T. v. Family Services
of Western Pennsylvania, 705 A.2d 1325, 1335-36 (Pa. Super. 1998), aff’d, 728 A.2d
953 (Pa. 1999).18 Although the Commonwealth, in general, has a “compelling interest
in protecting its child-abuse information,” Pennsylvania v. Ritchie, 480 U.S. 39, 60-61
(1987); In re Estate of Wagner, 880 A.2d 620, 625 (Pa. 2005), this does not immunize
section 6339 from constitutional attack.
Pursuant to Pennsylvania decisional law, when a statute mandates that the
privileged information cannot be disclosed to any individual, for any purpose
whatsoever, it is absolute in nature and suffices to outweigh or abrogate the due process
rights of an accused for the information. See Department of Transportation v. Taylor,
841 A.2d 108, 115-16 (Pa. 2004); Commonwealth v. Wilson, 602 A.2d 1290, 1295 (Pa.
1992) (plurality); Commonwealth v. Kyle, 533 A.2d 120, 130-31 (Pa. Super. 1987).
However, the CPSL does not possess these characteristics. Read together, sections
veracity have been called into question, and the complainant did not have an adequate opportunity to
confront his accusers.
18
See Section 6302 of the CPSL, 23 Pa.C.S. §6302.
14
6339 and 6440 fail to grant “absolute authority to shield [the Department’s] files from
all eyes,” Ritchie, 480 U.S. at 57, and instead evidence a qualified privilege by
providing that “the information shall be disclosed in certain circumstances.” Id. at 58.
In Ritchie, decided in 1987, the United States Supreme Court interpreted
the confidentiality provision of section 6339 and the former version of section 6340,
which then authorized release of the confidential information to a “court of competent
jurisdiction pursuant to a court order.” Ritchie, 480 U.S. at 44 (citation omitted). The
Court concluded that the Due Process Clause required a criminal defendant to have
access to the entire investigative file of CYS, via in camera inspection, in order to
obtain exculpatory evidence. In so holding, the Court focused on the qualified nature
of the statute, finding (at least implicitly) that the enumerated exceptions allowing
disclosure diminished or reduced the state’s interest in confidentiality. See id. at 57-
58 & n.14; Taylor, 841 A.2d at 116. Reasoning that the CPSL “contemplated some use
of CYS records in judicial proceedings” and, unable to find “any apparent state policy”
that would prevent “disclosure in criminal prosecutions,” the Court remanded the case
for further proceedings at the trial court level. Id. at 58 (emphasis in original).
In Taylor, our Supreme Court cited Ritchie to draw a clear line between
absolute and qualified privileges, signaling that the two are distinct substantively for
purposes of the Due Process Clause. As such, Taylor and similar cases dealing with
absolute statutory privileges are distinguishable and inapposite, and a different analysis
should be controlling for a privilege that is qualified in the sense that it enables
disclosure. See Taylor, 841 A.2d at 116-17; see also Commonwealth v. Ritchie, 502
A.2d 148, 151 (Pa. 1985), aff’d in part and rev’d in part on other grounds by 480 U.S.
39 (1987). Our Superior Court has reached and reaffirmed this very conclusion. Kyle,
15
533 A.2d at 130; see Commonwealth v. Berger, 96 A.3d 1049, 1053-54 (Pa. Super.
2014).19
Subsequent to Ritchie, the General Assembly amended section 6340 in
1998 and seemingly limited disclosure to criminal cases and custody matters involving
an allegation of child abuse. See 23 Pa.C.S. §6340(5), (5.1); Dauphin County Social
Services for Children and Youth v. Department of Public Welfare, 855 A.2d 159, 165
(Pa. Cmwlth. 2004).20 In 2006, our Supreme Court adopted and promulgated a rule
allowing disclosure in a dependency action that is based upon an allegation of child
abuse. Pa.R.J.C.P. 1800(8); see supra n.9. Nonetheless, “the privilege created by the
CPSL is [still] not absolute and disclosure of otherwise confidential information is
therefore permitted where compelled by sufficiently weighty interests.” V.B.T., 705
A.2d at 1334; see also Hannis ex rel. Hannis v. Sacred Heart Hospital, 789 A.2d 368,
371 & n.3 (Pa. Cmwlth. 2001); Pearson v. Miller, 211 F.3d 57, 67-73 (3d Cir. 2000).
19
In Kyle, the Superior Court distinguished Ritchie because, unlike the statute at issue in that
case, the Pennsylvania statute synthesizing the psychologist-client privilege “was an absolute
privilege” that “made no exceptions for disclosure.” 533 A.2d at 130. In Berger, the Superior Court
stressed the same distinction in a case where, given the record before it, the court could not “discern
the extent to which disclosure is permissible or required” under the statutes governing confidential
communications to sexual assault counselors and psychotherapists. 96 A.3d at 1052.
20
In Dauphin County Social Services for Children and Youth, this Court noted that in 1998
our General Assembly amended the language of section 6340(a)(5) from “[a] court of competent
jurisdiction pursuant to a court order” to “[a] court of competent jurisdiction . . . in a criminal matter
involving a charge of child abuse.” 855 A.2d at 165 (citations omitted). As a matter of statutory
construction, we determined that, through this alteration, “the legislature indicated an intent to restrict
the release of confidential information under Section 6339 even in the context of court proceedings
only to specified types of criminal proceedings.” Id. Notably, in Dauphin County Social Services for
Children and Youth, this Court resolved the case based upon our interpretation of sections 6339 and
6340, and we declined to address any constitutional challenges to the CPSL.
16
We must determine whether such interests are present here. Succinctly,
the statute operates to exclude Petitioner from using the transcripts in a licensing matter
when he is accused of child abuse, yet would permit him (theoretically) to do so if he
were confronted with the same accusation in a criminal, custody, or dependency case.
See C.E. v. Department of Public Welfare, 917 A.2d 348, 354 (Pa. Cmwlth. 2007);21 In
the Interest of Tina K., 568 A.2d 210, 213 (Pa. Super. 1989); see also Johnson v.
Johnson, 731 N.E.2d 1144, 1146-48 (Ohio Ct. App. 1999). In our view, the selective
and differential treatment and effect that the CPSL creates, the categorization it
produces, and the resulting line of division are questionable and problematic. Just like
the defendant in a criminal matter, or a defendant in a “civil law” custody or
dependency dispute, see Kline v. Kline, 708 A.2d 503, 506 (Pa. Super. 1998); In the
Interest of Tina K., 6 Pa. D. & C.4th 18, 25 (Cty. 1988), aff’d 568 A.2d 210 (Pa Super.
1989), the defendants that stand in the shoes of Petitioner possess a duplicate, yet
fundamental, right to defend reputational interests in the face of peril. Although the
licensing matter will not result in a criminal conviction or physical confinement to an
institution, the procedure to suspend or revoke a professional license “is penal in
nature,” State Dental Council and Examining Board v. Pollock, 318 A.2d 910, 916 (Pa.
1974), carrying with it “critical consequences” that include, among other things, “the
loss of professional standing, professional reputation, and of livelihood.” Pennsylvania
State Board of Pharmacy v. Cohen, 292 A.2d 277, 282 (Pa. 1982) (citation and internal
quotation marks omitted). In stating, “we emphasize that an accused person even in
the context of a ‘non-criminal’ proceeding is not without his or her rights to due
process.” A.Y., 641 A.2d at 1152. Although the Sixth Amendment right of
confrontation applies only to criminal proceedings, Dauphin County Social Services
21
This decision was criticized on unrelated legal grounds in In Interest of L.Z., 111 A.3d 1164,
1180 (Pa. 2015).
17
for Children and Youth, 855 A.2d at 163, the right to confront and cross-examine
witnesses in civil and administrative cases emanates from the Due Process Clause. See
Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 715 (Pa.
Cmwlth. 2013); Interest of Jones, 429 A.2d 671, 675-77 (Pa. Super. 1981).
Instructively, in In the Interest of Tina K., the Superior Court established
that there was a constitutional right to confront and cross-examine witnesses in a
dependency case that was based upon allegations of child abuse. The court said:
“There is no more scarlet ‘A’ than that branded upon the abuser . . . . It is, therefore,
of no consequence that the accused confronts these charges in the family forum and not
the criminal court.” 568 A.2d at 213 n.3. Similarly, our Supreme Court in A.Y.
addressed procedural and evidentiary shortcomings in child abuse expungement cases,
observing that, when the fundamental right to reputation is at stake, no meaningful
distinction can be found in the form of the action:
Although less process is due in an administrative proceeding
than where criminal charges have been brought, an
administrative adjudication of suspected child abuse is of the
most serious nature. Therefore, this society, which was
founded upon, inter alia, its citizens’ “inherent and
indefeasible rights . . . of acquiring, possessing and
protecting property and reputation,”[22] cannot blithely
surrender those rights in the name of prosecutorial
convenience.
A.Y., 568 A.2d at 1152 (emphasis in original).
With convincing force, the rationale expounded in these cases applies to
Petitioner’s licensing matter and the proceedings before the Commission. To be sure,
the current due process issue “cannot be reached by applying a wooden civil/criminal
distinction. That approach has long since been abandoned in favor of emphasis on the
22
Article 1, Section 1 of the Pennsylvania Constitution, Pa. Const. art. I, §1.
18
nature of the threatened deprivation.” Corra v. Coll, 451 A.2d 480, 482 (Pa. Super.
1982) (citations omitted).23 Regardless of the forum in which child abuse is alleged
(administrative or judicial), or the type of action through which an individual must
defend against it (criminal, civil, or administrative), “the right to reputation . . . is a
fundamental right under the Pennsylvania Constitution,” In the Interest of J.B., 107
A.3d 1, 16 (Pa. 2014), and maintains its potency invariably across the board. See, e.g.,
id.; Hatchard v. Westinghouse Broadcasting Company, 532 A.2d 346, 351 (Pa. 1987);
Wolfe v. Beal, 384 A.2d 1187, 1189 (Pa. 1978); Pennsylvania Bar Association v.
Commonwealth, 607 A.2d 850, 853-57 (Pa. Cmwlth. 1992). Ultimately, given that
reputational interests are threatened in a substantially similar manner in civil, criminal,
and administrative actions, serious equal protection concerns would arise if sections
6339 and 6340 could deny Petitioner the opportunity to use the transcripts in the
licensing matter to safeguard a fundamental constitutional right. See Pennsylvania Bar
Association, 607 A.2d at 857-58.
This conclusion is buttressed by an examination of the interplay between
provisions of the CPSL and PEDA. Perhaps incongruously, the relevant section of
PEDA requires the automatic revocation of an professional educator’s license, without
a hearing, when an “indicated report” is converted into a “founded report,” which can
occur when there has been a finding of child abuse by a trial court in a criminal or
dependency case. See Section 9.4 of PEDA, 24 P.S. §2070.9d, added by Section 6 of
23
In Corra, the Superior Court concluded that indigent defendants in civil paternity actions
have a constitutional due process right to appointed counsel. In that case, the Commonwealth argued
that an adjudication of paternity does not directly result in the deprivation of a liberty interest, noting
that Pennsylvania law has repealed the crime of “Neglect to Support Bastard.” In dismissing this
contention, the court highlighted the nature of paternity actions and their attendant legal consequences
and stated: “[T]he civil/criminal distinction is unavailing in determining whether counsel is
constitutionally required. Thus it is of no moment that paternity actions, once governed by criminal
statutes, are now civil in nature.” 451 A.2d at 481-82.
19
Act 2013-120; 23 Pa.C.S. §6303; D.M. v. Department of Public Welfare, 122 A.3d
1151, 1155-62 (Pa. Cmwlth. 2015). However, when there is only an indicated report,
the Commission must institute its own proceedings and make independent factual
determinations based on the evidence presented, but can nonetheless revoke the license.
See 23 Pa.C.S. §6344(a.1.); sections 5 of PEDA, 24 P.S. §2070.5, added by Section 3
of Act 2013-120, section 9.3 of PEDA, 24 P.S. §2070.9c; 22 Pa. Code §§233.113;
235.6; Whalen v. Department of Education, 161 A.3d 1070, 1073-80 (Pa. Cmwlth.
2017); Seltzer v. Department of Education, 782 A.2d 48, 51-56 (Pa. Cmwlth. 2001).
Whereas the requested cross-examination may proceed in the former
situations, it cannot be conducted in the latter. The combined effect of the two statutes
is to sanction the revocation of a professional educator’s license, without providing
equivalent procedural protections in the evidentiary proceedings resulting in the license
being revoked.
Moreover, in this particular context and at this point in time, the
Commonwealth’s interests in protecting the identity of those individuals who reported
child abuse and the reports themselves do not seem to be implicated, much less
undermined. See 23 Pa.C.S. §§6339, 6440(c). Petitioner seeks to utilize the transcripts
of witnesses who have testified under oath in the prior expungement proceedings
against him—not statements that individuals made to CYS in reporting or relaying that
the abuse had occurred or information contained in investigative reports—and,
ostensibly, he is aware of and knows the witnesses’ identities. The transcripts of the
expungement proceedings memorialize sworn testimony taken in an adversarial setting
and, as such, the purpose for confidentiality in section 6339 does not appear to be
frustrated in any palpable manner, and the Commonwealth’s interest in cloaking the
information must lie somewhere near the nadir. Pursuant to the constraints of PEDA,
20
proceedings before the Commission are closed to the public, and the transcripts of the
expungement proceedings, if made part of the record, cannot ever be disclosed to the
public.24 In these circumstances, it is difficult to grasp how the use of the transcripts
by Petitioner on cross-examination would compromise the CPSL’s confidential
reporting system or the privacy interests of the parties involved.
It is beyond cavil that all legislative acts have to abide by the constitution,
and a statutory privilege may have to be narrowed or yielded if it unreasonably
interferes with the guarantee of due process and the right to impeach a witness with
prior inconsistent statements. See, e.g., Linder v. Smith, 629 P.2d 1187 (Mont. 1981);
Robinson v. State, 730 A.2d 181, 192 (Md. Ct. Spec. App. 1999); Rinaker v. Superior
Court, 62 Cal. App. 4th 155, 166-67 (Cal. Ct. App. 1998); see also Octave ex rel.
Octave v. Walker, 103 A.3d 1255, 1260-61 (Pa. 2014); Hatchard, 532 A.2d at 350-51.
In Linder, a statute required claimants to submit medical malpractice claims to a
specialized administrative panel for evaluation prior to filing a medical malpractice
lawsuit in civil court. One provision of the act specified that “[no] statement made by
any person during a hearing before the panel may be used as impeaching evidence in
court.” 629 P.2d at 1192 (citation omitted). In striking this legislation as
unconstitutional, the Supreme Court of Montana concluded:
It is fundamental to our adversarial system that litigants
retain the right to impeach the sworn testimony of a witness
24
There is no general First Amendment right conferred upon the public to attend
administrative hearings, and Pennsylvania law dictates that the proceedings before the Commission
be closed and conducted in a confidential manner. See 24 P.S. §2070.17.2(a); 22 Pa. Code
§233.117(4); Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510, 513-14 (3d Cir.
2013); North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 215-16 (3d Cir. 2002); see also In
re McLaughlin v. Philadelphia Newspapers Inc., 348 A.2d 376, 382-83 (Pa. 1975). Afterward, when
the records before the Commission become public, the Commission must ensure that nondisclosure
of “those records that are privileged or otherwise protected from release.” Section 17.2 of PEDA, 24
P.S. §2070.17.b, added by Section 11 of Act 2013-120.
21
testifying against them. We are mindful that this provision
was enacted to aid the fact-finding by the panel and to
preserve the confidentiality of the proceedings. But we
cannot say that a litigant will receive a full and fair hearing
if he is unable to fully cross-examine in court the witnesses
that testified in the prior hearing.
Id.
After considering the factors enunciated in Mathews, we conclude that,
based on the allegations in the Petition, Petitioner has stated a claim upon which relief
may be granted. On balance, Petitioner’s constitutional rights and the risk of erroneous
deprivation, when compared to the Commonwealth’s interest in confidentiality, tilt
toward the conclusion that Petitioner may use the transcripts on cross-examination in
the licensing matter. Given the unique circumstances of this case, we conclude that the
principles comprising due clause demand this outcome and that cross-examination is
necessary to “protect the fundamental right of reputation guaranteed to the citizens of
this Commonwealth.” Hatchard, 532 A.2d at 351. We therefore overrule the BHA’s
preliminary objection in the nature of a demurrer.
Failure of Pleading to Conform to Law or Rule of Court
The BHA contends that the Petition should be dismissed because it is
captioned as a “Petition for Declaratory Judgment” and not as a “Petition for Review
in the Nature of a Declaratory Judgment.”
The BHA is technically correct. See Pa.R.A.P. 1502. However, “courts
should not be astute in enforcing technicalities to defeat apparently meritorious
claims,” Monroe Contract Corporation v. Harrison Square, Inc., 405 A.2d 954, 958
(Pa. Super. 1979), and “may disregard any error or defect of procedure which does not
affect the substantial rights of the parties.” Pa.R.C.P. No. 126; see Pa.R.A.P. 106.
22
Without question, the substance and content of the Petition is a civil action complaint,
or a petition for review, seeking declaratory relief; the Petition substantially complies
with the applicable rules; and the BHA has not suffered any discernable prejudice.
When the only error in a pleading or legal theory pertains to improper word usage, such
as how a claim is “titled,” or some other minute matter, our courts routinely refuse “to
elevate form over substance.” Thatcher’s Drug Store of West Goshen, Inc. v.
Consolidated Supermarkets, Inc., 636 A.2d 156, 159 n.5 (Pa. 1994); see Zokaites
Contracting Inc. v. Trant Corporation, 968 A.2d 1282, 1287 (Pa. Super. 2009). We do
so here and overrule the BHA’s preliminary objection.
Conclusion
For the above-stated reasons, we overrule the preliminary objections of
the BHA. The BHA is directed to file an answer to the Petition within 30 days of this
order.
________________________________
PATRICIA A. McCULLOUGH, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
C.S., :
Petitioner :
: No. 440 M.D. 2017
v. :
:
Commonwealth of Pennsylvania, :
Department of Human Services, :
Bureau of Hearings and Appeals, : CASE SEALED
Respondent :
ORDER
AND NOW, this 10th day of April, 2018, the preliminary objections
filed by the Department of Human Services, Bureau of Hearings and Appeals (BHA)
are overruled. The BHA is directed to file an answer to the Petition for Declaratory
Judgment filed by C.S. within 30 days of this order.
________________________________
PATRICIA A. McCULLOUGH, Judge