S.F. v. PA DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.F., : CASE SEALED
Petitioner :
: No. 574 M.D. 2020
v. :
: Argued: December 15, 2021
Pennsylvania Department of Human :
Services; Teresa D. Miller, in her :
official capacity as secretary of the :
Department of Health and Human :
Services; Pennsylvania Professional :
Standards and Practices Commission, :
:
Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2 (P.)
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE McCULLOUGH FILED: July 11, 2023

S.F. (Petitioner), a former teacher certified by Pennsylvania Department
of Education (PDE) and employed by a public school district (School District), has
filed a six-count petition for review (PFR) in the nature of a complaint in equity,
mandamus, and for declaratory relief against the Pennsylvania Department of Human

1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.

2
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
Services (DHS), Teresa D. Miller,3 in her official capacity as Secretary (Secretary), and
the Pennsylvania Professional Standards and Practices Commission (PSPC)
(collectively, Respondents). Petitioner has filed an application for partial summary
relief on Counts I, III, and V. The application for partial summary relief calls upon
this Court to address the question of whether the process available to an alleged
perpetrator under the current version of the Child Protective Services Law (CPSL), 23
Pa. C.S. §§ 6301-6386, satisfies constitutional procedural due process standards in the
context of teachers.4 Specifically, Petitioner asks this Court to hold that she, and
teachers like herself, are entitled to a pre-deprivation hearing prior to being listed as a
perpetrator in either (1) an indicated report of child abuse; or (2) a founded report of
child abuse when the basis of the founded designation is entrance into an accelerated
rehabilitative disposition (ARD) program. Respondents have filed a cross-application
for partial summary relief on those same counts on grounds of lack of standing and
ripeness.
Although in recent years, this Court and our Supreme Court have
expressed concerns that the CPSL may permit the deprivation of protected interests
without required constitutional protections, no court has, until now, addressed whether
due process requires pre-deprivation procedures in the CPSL with regard to teachers.
After careful consideration, we conclude that the CPSL, when implemented together
with the Educator Discipline Act5 (Educator Discipline Act), contained within the

3
Teresa D. Miller is no longer the Secretary of Human Services. Dr. Val Arkoosh is now
the Secretary of Human Services as of June 29, 2023.

4
As used herein, the term “teacher” includes those individuals who hold one of the
enumerated teaching certificates listed in Section 1201 of the Public School Code of 1949 (School
Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 12-1201.

5
Act of December 12, 1973, P.L. 397, as amended, 24 P.S. §§ 2070.1a-2070.18c.

2
School Code, does not provide for our Constitution’s guarantee of due process. It is
without question that the government has a paramount interest in keeping child abuse
out of our schools and doing so in an expeditious manner. As this has necessarily
involved the preliminary deprivation of constitutionally protected interests in property
and reputation, the government also has an equal interest in not stigmatizing those who
are innocent or wrongfully accused or foreclosing them from employment and other
opportunities prior to being named on an indicated report of child abuse. The pre-
deprivation procedures provided for below do not hinder the expeditious removal of an
abuser from the school premises; they merely ensure that those teachers who are
alleged to be an abuser are not deprived of their constitutional right to due process
before being listed as a perpetrator of abuse in an indicated report of child abuse. This
case does not involve the determination of whether child abuse occurred in this matter,
but only whether the CPSL protects constitutional guarantees to due process before a
teacher is listed in the ChildLine and Abuse Registry (ChildLine Registry). Our
determination also does not prevent a school from implementing any lawful procedures
to initially remove a teacher whom it believes has engaged in child abuse. For the
reasons that follow, Petitioner’s application for partial summary relief as to Counts I
and III is granted. With respect to Count V, we agree with the arguments advanced
by Respondents and deny Petitioner’s application for partial summary relief. The
cross-application for partial summary relief filed by Respondents is granted as to Count
V only and denied in all other respects.
I. FACTS AND PROCEDURAL HISTORY
In the fall of 2018, Petitioner was a special education teacher in the School
District. On September 14, 2018, Petitioner was alleged to have forced a 6-year-old
special needs student to walk up and down a flight of stairs over 100 times. A report

3
of suspected child abuse was referred to the local County Children and Youth Services
(CYS), which investigated and interviewed Petitioner and the child and reviewed video
surveillance footage of the incident. Petitioner acknowledged making the child walk
up and down the stairs as a form of getting the child to calm down. CYS’s investigation
concluded that the allegations of abuse were substantiated and that an indicated report
of child abuse would be issued. Petitioner was notified that as of November 30, 2018,
she was listed on the statewide ChildLine Registry as a perpetrator in an indicated
report of child abuse. The notice from DHS informed Petitioner,

An indicated report means that a county children and youth
agency or the Pennsylvania [DHS] has made a determination
that you committed abuse. Your name will remain on file in
the statewide database indefinitely if your social security
number or date of birth is known.

As a perpetrator in an indicated report, you will probably be
prevented from working in an organization serving children
or a public or private school or from becoming a foster care
or adoptive parent. As a perpetrator, you could also be
prevented from volunteering in an organization serving
children or public or private school or from obtaining certain
educational degrees or certificates. Other volunteer and
employment opportunities may also be negatively affected.

If you disagree with the determination that you have
committed abuse, and you want your name removed
from the Statewide Database, you have two options.

(1) You must appeal to [DHS] within 90 days of the mailing
date listed at the top of this notice.

To appeal you can use the enclosed form and check off the
first box on the form. You may also write a letter requesting
the appeal.
OR

4
 (2) You have a right to a hearing now. You can skip the
appeal described above and ask the Bureau of Hearings and
Appeals [(BHA)] for that hearing. This request must be made
within 90 days of the mailing date listed at the top of this
notice.

(Exhibit B to Petitioner’s Brief in Support of Application for Summary Relief)
(emphasis in original).
Petitioner was interviewed but received no hearing before a neutral
adjudicator prior to being listed as a perpetrator of child abuse on the ChildLine
Registry. Petitioner sought administrative review of the indicated report pursuant to
Section 6341(a)(2) of the CPSL, 23 Pa. C.S. § 6341(a)(2).6
On December 26, 2018, an educator misconduct complaint was filed with
the PDE pursuant to section 9 of the Educator Discipline Act, 24 P.S. § 2070.9,7 which
alleged that Petitioner was the subject of an indicated report of child abuse. By letter
dated March 12, 2019, DHS denied Petitioner’s request for administrative review,
concluding that the report was accurate and was maintained in a manner consistent with
the CPSL. Petitioner appealed to BHA, and a hearing was scheduled before an
Administrative Law Judge (ALJ) for July 21, 2019.

6
Section 6341(a)(2) provides:

Any person named as a perpetrator, and any school employee named,
in an indicated report of child abuse may, within 90 days of being
notified of the status of the report, request an administrative review by
. . . . the secretary to amend or expunge an indicated report on the
grounds that it is inaccurate or it is being maintained in a manner
inconsistent with this chapter. The request shall be in writing in a
manner prescribed by [DHS].

23 Pa. C.S. § 6341(a)(2).

7
Added by the Act of December 14, 1989, P.L. 612.

5
 Before the hearing, CYS requested a stay because Petitioner was charged
with a misdemeanor count of 18 Pa. C.S. § 4303, Endangering the Welfare of Children
(EWOC), and criminal proceedings had commenced. The BHA then stayed
Petitioner’s administrative appeal. Also due to the criminal charge, the PSPC directed
the PDE to suspend Petitioner’s teaching certificate and employment eligibility
pursuant to section 9.2(a)(1) of the Educator Discipline Act, 24 P.S. § 2070.9b(a)(1),8
which requires such suspensions.
On June 26, 2020, Petitioner entered into ARD in connection with her
EWOC charge. As a condition of entering ARD, the District Attorney required
Petitioner to surrender her teaching certificate in lieu of further disciplinary
proceedings. By order dated September 29, 2020, the PSPC accepted Petitioner’s
surrender of her certificate of employment eligibility.
On October 15, 2020, Petitioner filed her PFR. In Count I, Petitioner
seeks a declaration that section 6368 of the CPSL, 23 Pa. C.S. § 6368, is
constitutionally deficient under article I, section 1 of the Pennsylvania Constitution9
and the United States Constitution (as applied to Petitioner and other teachers and on
its face) as it provides no pre-deprivation due process to such individuals listed as
perpetrators in an “indicated” report of child abuse. In Count III, Petitioner seeks a
declaration that section 6303 of the CPSL, 23 Pa. C.S. § 6303, is unconstitutional as
applied to Petitioner and other teachers and on its face because it provides no due
process to individuals listed as perpetrators of a “founded” report of child abuse when
the basis of the founded report is acceptance into ARD. Count V seeks a writ of

8
Added by the Act of December 20, 2000, P.L. 918.

9
Article I, section 1 of the Pennsylvania Constitution states: “All men are born equally free
and independent, and have certain inherent and indefeasible rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing and protecting property and reputation, and
of pursuing their own happiness.” PA. CONST. art. I, § 1.

6
mandamus ordering Respondents to remove Petitioner’s existing report from the
ChildLine Registry. Respondents timely filed an answer with new matter on February
8, 2021.
On July 9, 2021, Petitioner filed her application for partial summary relief,
seeking judgment in her favor as to Counts I, III, and V.10 Respondents filed a cross-
application for partial summary relief on Count I, Count III (lack of standing because
Petitioner has never been the subject of a “founded” report of child abuse), and Count
V (because DHS has no duty to remove an indicated report of child abuse from the
ChildLine Registry).

II. LEGAL BACKGROUND
A. THE CPSL SCHEME AS APPLIED TO TEACHERS
1. The Initial Report and Investigation
The CPSL provides a comprehensive framework for reporting and
investigating child abuse. The CPSL created a statewide database of protective
services known as the ChildLine Registry. 23 Pa. C.S. § 6331. This registry contains,
inter alia, reports of suspected child abuse. Id. Section 6312 of the CPSL allows “[a]ny
person” with “reasonable cause to suspect” child abuse to make a report of suspected
child abuse. 23 Pa. C.S. § 6312. Additionally, Section 6311(a) of the CPSL requires
certain adult individuals designated as mandated reporters (including health care
workers, school employees, clergy, law enforcement officers and foster parents), to
report suspected child abuse if they have “reasonable cause to suspect that a child is a

10
Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure provides that “[a]t any time
after the filing of a petition for review in an appellate or original jurisdiction matter, the court may on
application enter judgment if the right of the applicant thereto is clear.” Pa. R.A.P. 1532(b). In
constitutional challenges, “the challenger bears the heavy burden of demonstrating that the statute
‘clearly, plainly, and palpably violates the Constitution,’ as [courts] presume that [their] sister
branches act in conformity with the Constitution.” Pennsylvania Environmental Defense Foundation
v. Commonwealth, 161 A.3d 911, 929 (Pa. 2017).

7
victim of child abuse.” 23 Pa. C.S. § 6311(a). Once an allegation of child abuse is
submitted to the ChildLine Registry, DHS refers the matter to the child protective
services agency of the county where the alleged abuse has occurred. 23 Pa. C.S. §
6334(b). Within 24 hours of receiving the allegation, a caseworker employed by the
county agency must begin an investigation. 23 Pa. C.S. § 6368(b), 6368(d)(4). The
CPSL requires that, at a minimum, the caseworker must interview the victim and
alleged perpetrator, if the alleged perpetrator can be found. 23 Pa. C.S. § 6368(d)(4).11
DHS regulations provide that the investigator shall, if possible, also interview the
child’s parents, the reporter, eyewitnesses, neighbors, relatives, day care providers, or
school personnel. 55 Pa. Code § 3490.55. The investigation shall include:

(1) A determination of the safety of or risk of harm to the
child or any other child if each child continues to remain in
the existing home environment.

(2) A determination of the nature, extent and cause of any
condition listed in the report.

(3) Any action necessary to provide for the safety of the child
or any other child in the child’s household.

11
Section 6368(d)(4) of the CPSL states in this regard:

(d) Investigative actions--During the investigation, all of the
following shall apply:
***
(4) The investigation shall include interviews with all subjects
of the report, including the alleged perpetrator. If a subject of the report
is not able to be interviewed or cannot be located, the county agency
shall document its reasonable efforts to interview the subject and the
reasons for its inability to interview the subject. The interview may be
reasonably delayed if notice of the investigation has been delayed
pursuant to subsection (m).

23 Pa. C.S. § 6368(d)(4).

8
 (4) The taking of photographic identification of the child or
any other child in the child’s household, which shall be
maintained in the case file.

(5) Communication with [DHS’s] service under section 6332
(relating to establishment of Statewide toll-free telephone
number).

23 Pa. C.S. § 6368(c).
If a report of child abuse possibly includes a violation of the criminal laws,
the county agency’s investigation must be conducted jointly with local law
enforcement. 23 Pa. C.S. § 6334.1. In such circumstances, county agencies and the
district attorney for the county where the alleged abuse occurred must convene a
“multidisciplinary investigative team” that coordinates interviews with the alleged
perpetrator. 23 Pa. C.S. § 6365.
After completing its investigation, the agency must submit a CY-48 form
to ChildLine designating the report of child abuse as “unfounded,” “indicated,” or
“founded.” 23 Pa. C.S. § 6368(c); 55 Pa. Code § 3490.67. A report is indicated if
“substantial evidence of the alleged abuse exists” based on available medical evidence,
the child protective service investigation, or an admission by the perpetrator. 23 Pa.
C.S. § 6303. “Substantial evidence” is defined as “[e]vidence which outweighs
inconsistent evidence and which a reasonable person would accept as adequate to
support a conclusion.” Id.
2. Teachers Named in Indicated Reports
If the allegations relate to a teacher, the CPSL imposes a mandatory duty
on DHS to send notice of the allegations to the relevant school employer. 23 Pa. C.S.
§ 6340(a)(13). Upon receiving notice of an investigation of suspected child abuse
involving a teacher, school employers must “immediately implement a plan of

9
supervision or alternative arrangement for the individual under investigation to ensure
the safety of the child and other children who are in the care of the school.” 23 Pa. C.S.
§ 6368(i). This plan of supervision or alternative arrangement must be approved by
the county agency and continue until the county agency completes its investigation. Id.
3. Post-Deprivation Remedies Available to Teachers
The CPSL provides individuals named as perpetrators in an indicated
report of child abuse with post-deprivation remedies. First, the CPSL provides for
administrative review by DHS. 23 Pa. C.S. § 6341(a)(2). DHS must provide notice of
the decision to the alleged perpetrator within 60 days of the request for administrative
review. 23 Pa. C.S. § 6341(a)(3). Second, if DHS refuses to grant relief at the
administrative review stage, “the perpetrator or school employee shall have the right to
appeal and request a hearing before the secretary to amend or expunge an indicated
report on the grounds that it is inaccurate or it is being maintained in a manner
inconsistent with this chapter.” 23 Pa. C.S. § 6341(c). Individuals also have the right
to skip the administrative review stage and go directly to a hearing. 23 Pa. C.S. §
6341(a)(2). Hearings are conducted by ALJs working within BHA, and the burden of
proof falls on the county agency that made the determination. Id. Hearings must be
commenced within 100 days of the date DHS receives the appeal. 23 Pa. C.S. §
6341(c.2) (requiring BHA to issue a scheduling order within 10 days, and that a hearing
shall commence within 90 days of the scheduling order). The CPSL also requires the
hearing examiner to issue a decision within 45 days, or 105 days if the hearing examiner
has good cause for a 60-day extension. 23 Pa. C.S. § 6341(c.3). Indicated reports
remain on the ChildLine Registry while any requests for review or appeals are pending.
4. Founded Report

10
 A “founded report” of child abuse is a determination where a suspect is
deemed guilty of child abuse through a judicial process that is distinct from the county
agency investigation detailed above. A “founded report” is defined by an exhaustive
list of situations in Section 6303 of the CPSL, and, as relevant here, may include when,
inter alia, “there has been an acceptance into an [ARD] program and the reason for the
acceptance involves the same factual circumstances involved in the allegation of child
abuse.” 23 Pa. C.S. § 6303(2). The CPSL affords individuals named as perpetrators
in founded reports of child abuse no rights to administrative or judicial review.
5. ARD
ARD is a pretrial disposition of certain criminal cases, governed primarily
by Chapter 3 of the Pennsylvania Rules of Criminal Procedure, which suspends formal
criminal proceedings before conviction and provides the accused with certain
rehabilitative conditions, the completion of which results in the dismissal of the
pending criminal charges and a clean record for the defendant. J.F. v. Department of
Human Services, 245 A.3d 658, 661-62 (Pa. 2021). If a district attorney agrees to a
defendant’s request for inclusion into ARD, a hearing on the motion is held in open
court wherein it is “ascertained on the record whether the defendant understands that
(1) acceptance into and satisfactory completion of the [ARD] program offers the
defendant an opportunity to earn a dismissal of the pending charges,” and (2) failure to
complete the program waives applicable statute of limitations and the right to a speedy
trial. See Pa. R. Crim. P. 312. The judge hears the facts presented by the district
attorney and any information the defendant and the victim choose to present.
Pa.R.Crim.P. 313(b). If the judge believes ARD is appropriate, the judge states the
conditions of ARD on the record; otherwise the case proceeds on the charges. Pa. R.
Crim. P. 313(c). The defendant then states whether she accepts conditions of ARD and

11
agrees to comply, and if she agrees, the judge may grant the motion for ARD and enter
an order imposing conditions. Pa.R.Crim.P. 313(D). Upon satisfactory completion of
the program, a defendant may move the court for an order dismissing the charges, and
if the motion is granted, the judge also enters an expungement order of the defendant’s
arrest record. Pa.R.Crim.P. 320.
6. Educator Discipline and the ChildLine Registry
Teachers who hold certificates from PDE are subject to the provisions of
the Educator Discipline Act. In situations where a certificated teacher is named as a
perpetrator in an indicated report of child abuse, the PSPC may, after providing notice
and offering a hearing, impose professional discipline upon the teacher. If, however,
the teacher is named as a perpetrator in a founded report of child abuse, the Educator
Discipline Act mandates immediate revocation of the teacher’s certificate. 24 P.S. §
2070.9d(a)(1). Section 9.4(a)(1) of the Educator Discipline Act provides that the PSPC
shall:
[d]irect [PDE] to revoke the certificate and employment
eligibility of an educator who is named as the perpetrator of
a founded report of child abuse or named as an individual
responsible for injury or abuse in a founded report for a
school employe under [the CPSL] upon receipt of
documentation verifying the founded report.
24 P.S. § 2070.9d(a)(1).12
The Educator Discipline Act does not provide certificated teachers with
an opportunity to be heard on the revocation of teaching certificates when the basis for
revocation is that the teacher was named as a perpetrator in a founded report of child
abuse. Instead, the Educator Discipline Act provides that if a founded report is
“reversed or determined to be unfounded,” the PSPC “must immediately reinstate a

12
Added by the Act of December 18, 2013, P.L. 1205.

12
certificate upon receipt of a certified document establishing” that fact. 24 P.S. §
2070.9d(a)(2).
III. DISCUSSION
A. PETITIONER’S APPLICATION FOR PARTIAL SUMMARY RELIEF
1. Count I – Declaratory Relief – Constitutionality of section 6368 of the
CPSL
In her first issue, Petitioner seeks summary relief on Count I of her PFR,
which asks for a declaration that section 6368 of the CPSL is constitutionally deficient
under the Pennsylvania and United States Constitutions as applied to Petitioner and
other teachers because it provides no pre-deprivation due process to teachers listed as
perpetrators in indicated reports of child abuse.13 Petitioner contends that teachers, like
her, who hold a teacher’s certificate have a constitutionally protected property right in
the practice of that profession. She maintains that individuals accused of child abuse
also have a protected liberty interest in their reputations which entitles them to
procedural due process under the Pennsylvania Constitution. She argues that teachers
named as perpetrators in indicated reports face reputational and employment
consequences to a significantly greater degree than other individuals so named.
Petitioner argues that due process requires that she and other teachers receive some sort
of pre-deprivation hearing prior to being named as a perpetrator in an indicated report

13
We note that the relief Petitioner seeks in Counts I, III, and V of her application for partial
summary relief is narrower than the relief requested in the PFR in that Petitioner does not seek a
declaration here that Sections 6303 and 6368 of the CPSL are unconstitutional on their face. Rather,
she seeks a declaration that Sections 6303 and 6368 of the CPSL are unconstitutional under the
Pennsylvania Constitution as applied to herself and other teachers.
A facial attack tests a law’s constitutionality based on its text alone and does not consider the
facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a
law is unconstitutional as written but that its application to a particular person under particular
circumstances deprived that person of a constitutional right. Peake v. Department of Human Services,
132 A.3d 506, 517 (Pa. Cmwlth. 2015).

13
of child abuse. She acknowledges that she may seek recourse through a post-
deprivation hearing. However, she argues that the fact that a hearing occurs after an
indicated report is issued does not satisfy the demands of constitutional due process.
In response, Respondents counter that there has been no deprivation of
Petitioner’s constitutional reputational interest because the ChildLine Registry is a
closed and confidential database. They further contend that Petitioner has not proven
how she has been deprived of her right to pursue her lawful occupation by being placed
on ChildLine Registry because she is free to pursue her profession. They also argue
that even if Petitioner is successful in proving a sufficient deprivation of a
constitutional interest by being identified on an indicated report on the ChildLine
Registry, due process is satisfied by the post-deprivation administrative review and
hearing process established by the General Assembly in the CPSL, and because of the
undisputed urgent need to protect children from further abuse.
a. Due Process and the Child Protective Services Law
The Due Process Clause of the Fifth Amendment to the United States
Constitution guarantees that “[n]o person shall be . . . deprived of life, liberty, or
property, without due process of law[.]” U.S. CONST. amend. V. A similar protection,
that no “State [shall] deprive any person of life, liberty, or property, without due
process of law,” is contained in the Fourteenth Amendment to the United States
Constitution. U.S. CONST. amend. XIV, § 1.
Due process is fully applicable to administrative hearings involving
substantial property and/or liberty rights. C.S. v. Department of Human Services,
Bureau of Hearings and Appeals, 184 A.3d 600, 603-04 (Pa. Cmwlth. 2018). Under
both our federal and state constitutions, the basic elements of procedural due process
are “adequate notice, the opportunity to be heard, and the chance to defend oneself

14
before a fair and impartial tribunal having jurisdiction over the case.” Commonwealth
v. Turner, 80 A.3d 754, 764 (Pa. 2013).14 The United States Supreme Court has
consistently held that “some form of hearing” is required before a final deprivation of
a protected interest, although the exact nature and mechanism of the required procedure
will vary based upon the unique circumstances surrounding the controversy. Mathews
v. Eldridge, 424 U.S. 319, 333 (1976); C.S., 184 A.3d at 607. The fundamental
requirement of due process is the opportunity to be heard “at a meaningful time and in
a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
Courts examine procedural due process in two steps: the first asks whether
there is a life, liberty, or property interest with which the state has interfered, and the
second examines whether the procedure attendant to that deprivation are
constitutionally sufficient. Kentucky Department of Corrections v. Thompson, 490
U.S. 454, 460 (1989). In Mathews, 424 U.S. 319, the Supreme Court developed, and
we have embraced, a balancing test that augments the second step of the due process
analysis to assess the constitutional sufficiency of the statutory procedure. First, we
must consider the private interest that will be affected by the official action. Second,
we consider the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards.
Third, we consider the government’s interest, including the function involved and the

14
There is a strong presumption that legislation like the CPSL is constitutional and, therefore,
cannot be declared unconstitutional unless it is found to “clearly, palpably and plainly” violate the
Constitution. Commonwealth v. Craven, 817 A.2d 451, 454 (Pa. 2003) (quotation omitted); 1 Pa.
C.S. § 1922(3) (presuming that “the General Assembly does not intend to violate the Constitution of
the United States or of this Commonwealth”). Further, because Petitioner is challenging the
constitutionality of the CPSL, she “bear[s] a heavy burden of persuasion” with respect to her claims.
Commonwealth v. MacPherson, 752 A.2d 384, 388 (Pa. 2000). Any doubts about whether Petitioner
has met this high burden must be resolved in favor of finding the statute constitutional.
Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa.
2005).

15
fiscal and administrative burdens that the additional or substitute procedural
requirement would entail. Mathews, 424 U.S. at 335; City of Philadelphia v. Perfetti,
119 A.3d 396, 403 (Pa. Cmwlth. 2015) (en banc). The Mathews calculus contemplates
a judicious balancing of these concerns. Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004).
i. Private Interest Affected by Official Action
Applying the above precedent, we first decide as a threshold matter
whether Petitioner, a special education teacher, has a protected liberty or property
interest that is affected by being listed in the ChildLine Registry. This is easily
answered as our Court has previously answered this question in the affirmative. While
our courts have not yet answered the question of “how much process is due” in this
situation, the notion that a teacher’s due process rights are implicated by placement on
the ChildLine Registry is settled.
In J.P. v. Department of Human Services, 170 A.3d 575, 581 (Pa. Cmwlth.
2017), a teacher was accused of student abuse and he was reported to the ChildLine
Registry as a perpetrator. In response to the notice, the petitioner sent a letter
requesting that the indicated report be destroyed or amended based on errors in the
report, and he requested a hearing if one was necessary. Id. at 578. DHS sent two
more notices indicating its belief that the report was accurate. The petitioner did not
respond to the subsequent notices and continued to work as a teacher. Approximately
15 years later, the petitioner learned he was listed on the ChildLine Registry and
requested, nunc pro tunc, a hearing on the indicated report. Id. Before the ALJ, the
petitioner testified that he did not receive the second and third notices and argued that
he had requested a hearing in his response to the first notice. The ALJ recommended
dismissal of the petitioner’s appeal as untimely, which the BHA adopted, and the
petitioner appealed to this Court. The issue before us was whether the process the

16
petitioner received was constitutionally sufficient. Because the petitioner argued that
he was denied procedural due process, we examined whether placement on a registry
for alleged child abuse causes damage to the alleged abuser. In concluding that it does,
we explained that “[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.” Id. at 581.
Subsequently, in C.S., we found that the provisions of the CPSL, which
prohibited an accused individual from using transcripts of witnesses’ testimony in a
child abuse expunction proceeding to cross-examine those witnesses in a licensing
matter, violated due process. Reviewing the pertinent case law, we first found that the
petitioner, a certified teacher, had 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 [the p]etitioner has a
substantial interest to be protected.” Bhattacharjee v.
Department of State, [State Board of Medicine], 808 A.2d
280, 283 (Pa. Cmwlth. 2002); see Telang[v. Bureau of
Professional and Occupational Affairs], 751 A.2d 1147[,]
1150 [Pa. 2000)]. Where, 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.
C.S., 184 A.3d at 604.

17
 We explained that “[u]pon receiving his educator’s license, [the
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.’” Id. We concluded that the petitioner also possessed a protected
liberty interest in his reputation, which independently entitled him to procedural due
process protection under the Pennsylvania Constitution as an individual accused of
child abuse. Id.
Based on this precedent, we agree with Petitioner that, because she is a
certificated teacher, her property and reputational interests are impacted by being
named as a perpetrator in an indicated report of child abuse.
ii. Mathews - Constitutional Sufficiency of Procedures
We turn next to the Mathews factors to determine if the procedures
available to Petitioner to protect the interests at stake were constitutionally sufficient.
The constitutionality of Pennsylvania’s current process under the CPSL, which allows
the name of a certificated teacher to be placed on the ChildLine Registry as a
perpetrator in an indicated report without a pre-deprivation hearing, is a matter of first
impression.15

15
As noted, although the issue is one of first impression, our courts have previously expressed
concerns that the lack of a pre-deprivation hearing before being named in an indicated report on the
ChildLine Registry raises serious due process questions. In D.C., the lack of a pre-deprivation
hearing in the CPSL was not directly at issue, but we noted that

[b]ecause the indicated report goes into the registry without a hearing,
the perpetrator does not know the evidence on which the determination
was made. The indicated report itself contains only a brief description
of abuse.

150 A.3d at 564. The Court further stated: “The lack of a pre-deprivation hearing in the [CPSL] raises
a serious due process question.” Id. See also K.J. v. Pennsylvania Department of Public Welfare,
(Footnote continued on next page…)

18
 a. Private Interest Affected by Official Action
The first Mathews factor requires us to identify the weight to be given to
the private interests affected by the official action challenged. As discussed above, we
have concluded that Petitioner has a property interest in pursuing her employment as a
teacher and working with children and she has a fundamental liberty interest in not
being labeled a child abuser. In this first Mathews factor, we consider the “degree of
potential deprivation” or “impact” created by the official action on the private interests.
Mathews, 424 U.S. at 341.
Impact on Reputation
The preservation of an individual’s reputation is fundamental as it is
recognized and protected by the Pennsylvania Constitution. As such, and as we have
previously stated, that right cannot be abridged without compliance with constitutional
standards of due process and equal protection. Simon v. Commonwealth, 659 A.2d
631, 639 (Pa. Cmwlth. 1995) (noting that lack of a forum for an individual who believes
that his reputation has been adversely affected to seek a remedy until after the possible

767 A.2d 609, 616 n.9 (Pa. Cmwlth. 2001) (Friedman, J., dissenting) (noting that by the time [DHS]
orders the expunction of an indicated report, “a person’s reputation already may be tarnished
erroneously”); G.V. v. Department of Public Welfare, 91 A.3d 667, 675-76 (Pa. 2014) (Saylor, J.,
concurring) (noting “the inquiry into whether the [CPSL] reflects adequate process remains seriously
in question,” adding that the current system “is in tension with the constitutional preference for pre-
deprivation process”).
We also note that other courts have already addressed the issue and held that due process
requires a pre-deprivation hearing before a citizen can be placed on a government-maintained list of
child abusers. See, e.g., Jamison v. State of Missouri, Department of Social Services, 218 S.W.3d
399 (Mo. 2007) (holding that held that Missouri’s version of the CPSL violated due process because
it failed to provide a pre-deprivation hearing before the alleged perpetrator is listed on a child abuse
registry); Humphries v. County of Los Angeles, 554 F.3d 1170, 1186 (9th Cir. 2008), as amended
(January 30, 2009), rev’d on other grounds, Los Angeles County, California v. Humphries, 562 U.S.
29 (2010); Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994); In re W.B.M., 690 S.E.2d 41 (N.C. Ct. App.
2010); Cavarretta v. Department of Children and Family Services, 660 N.E.2d 250 (Ill. Ct. App.
1996).

19
damage has been done was “clearly an unconscionable abrogation of a state protected
constitutional right without due process”). It goes without saying that serious adverse
social consequences flow from being placed on the ChildLine Registry as a person
suspected of child abuse.16 However, the parties disagree as to the degree of the harm
to Petitioner’s reputation as the result of being named as a perpetrator in an indicated
report, with Petitioner arguing it is substantial and Respondents arguing that is not.
A central argument raised by Petitioner is that the CPSL scheme imposes
far greater harm to teachers accused of child abuse than to other accused individuals.
With respect to reputational harm, Petitioner argues that the number of people to whom
notice of an indicated report is given is exponentially higher for teachers as compared
to non-educators. For example, as it pertains to teachers, school administrators receive
notice of a pending allegation and the final status of the report following the
investigation as to whether the report is indicated, founded, or unfounded. 23 Pa. C.S.
§ 6340(a)(13)(i). If the alleged perpetrator is a teacher, the notice of the final status of
the report shall be sent to the PDE within 10 days of the completion of the investigation.
23 Pa. C.S. § 6340(a)(13)(iii). Upon receiving formal notice, school employers must
take action and “immediately implement a plan of supervision or alternative
arrangement for the individual under investigation.” 23 Pa. C.S. § 6368(i). This
requirement invariably involves others in the school and community. Furthermore,
potential employers are required to receive notice of a teacher’s inclusion in the
ChildLine Registry. Under Section 111.1(b)(1)(iii)(A) of the School Code, before a

16
It cannot seriously be questioned that an allegation of child abuse harms an individual’s
reputation and deters others from associating or dealing with the individual. Indeed, as one court
directly observed, “to be accused of child abuse may be our generation’s contribution to defamation
per se, a kind of moral leprosy.” Humphries, 554 F.3d at 1186. See also Thomas v. Buckner, 2011
WL 4071948, at *14 (M.D. Ala. Sept. 13, 2011) (“mere allegation of child abuse is enough to make
one a pariah of society”).

20
school entity may offer employment to an applicant who would be in a position
involving direct contact with children, the school entity is required to determine if the
applicant has been the subject of an abuse investigation. 24 P.S. § 1-
111.1(b)(1)(iii)(A).17 Concomitantly, a teacher who is the subject of an indicated report
must disclose to potential employers that she has been the subject of an abuse
misconduct investigation. Id. Under the CPSL, if the teacher seeks any other job that
has direct contact with children, she must disclose to prospective employers that she is
named in the ChildLine Registry as a perpetrator in an indicated report. 23 Pa. C.S. §
6344(b)(2). Thus, argues Petitioner, the moment she is placed on the ChildLine
Registry as an alleged perpetrator in an indicated report, her reputation in the eyes of
her employer, any potential employers, state agencies, and possibly colleagues,
students, and parents, is irreparably damaged.
For their part, Respondents disagree that Petitioner suffered any injury to
her reputation of a constitutional significance by being named as a person suspected of
child abuse on the ChildLine Registry. They cite to R. v. Department of Public Welfare,
636 A.2d 142 (Pa. 1994), and G.V., and argue that because the ChildLine Registry is
confidential and closed, Petitioner has not been deprived of her right to reputation.
In R., the Pennsylvania Supreme Court considered a father’s appeal of an
indicated report. The father asserted that he was denied due process during his
administrative hearing when the hearing examiner made credibility determinations of
witnesses the father did not see or hear testify and allowed the father’s daughter to
testify in camera. Id. The Court employed the Mathews test and considered the private
interest at stake. The Court acknowledged that the right to reputation is implicated by
the CPSL, but reasoned that, as to the father, the information would only be viewed by

17
Added by the Act of October 22, 2014, P.L. 2624.

21
government officials and only if he attempted to adopt a child or applied to work in a
position with direct contact with children, a career in which he did not work or have
any interest in pursuing. 636 A.2d at 149-50. Given the facts in that matter, the Court
concluded that
[the father] is not being stigmatized in the eyes of the general
public. To the contrary, his identity is disclosed to a small
number of persons in a very narrow range of situations
with the understanding that it will not be revealed to any
unauthorized individuals. Therefore, any adverse effects
on his reputation are very limited.
R., 636 A.2d at 150 (emphasis added).
The circumstances in R. are distinguishable. Here, unlike the father in R.,
whose reputation would not be harmed so long as he did not attempt to adopt a child
or apply for a job in a school or childcare setting, teachers, like Petitioner, are
immediately harmed when allegations against them are made to the ChildLine
Registry. As discussed, teachers accused of child abuse cannot shield accusations from
the view of their employer, prospective employers, colleagues, and conceivably, the
parents of the students they serve.
G.V. is distinguishable for the same reason. In G.V., the Supreme Court
reaffirmed these tenets with approval and rejected a contrary view that information on
the ChildLine Registry was likely to be disclosed to others not listed in Section 6340(a)
of the CPSL. G.V., 91 A.3d at 673. There, the Court found that an indicated report
filed in the ChildLine Registry against an uncle accused of sexually abusing his great
niece did not deprive him of a reputational interest, noting again, the minimal risk of
disclosure to those not authorized by the statute to receive the same. Id.
The petitioners in R. and G.V. were not teachers and were not subject to
the provisions discussed above that cause reputational harm to teachers. Unlike the
confidentiality of the reports filed against the father in R., and the uncle in G.V.,

22
knowledge of the indicated report filed against Petitioner in the vicinage of her
employment is inevitable and inescapable. See Valmonte v. Bane, 18 F.3d 992, 1001
(2d Cir. 1994) (rejecting a similar argument that a childcare employee’s inclusion on
New York’s Central Register resulted in no reputational damage because there was no
disclosure of information on the Central Register except to authorized state agencies or
potential employers in the childcare field. The Valmonte Court found that
“[d]issemination to potential employers . . . is the precise conduct that gives rise to
stigmatization.”).
Accordingly, we conclude that teachers, like Petitioner, named as
perpetrators in indicated reports face significant reputational consequences that are
unique, as present and potential school employers, the PDE, and the PSPC are notified
of any indicated reports of child abuse involving a teacher.
Impact on Employment
In addition to damage to her reputation, Petitioner argues that a teacher
placed on the ChildLine Registry, as a perpetrator in an indicated report, will almost
certainly have a difficult, if not impossible, time retaining and/or acquiring a teaching
position.
Our courts have frequently recognized the severity of depriving a person
of the means of a livelihood. Shah. Employment bars are the most severe form of
infringement on an employee’s liberty and property interests associated with their
employment and clearly implicate due process. Peake, 132 A.3d at 518.
Under Act 168,18 teachers are required, as part of the application process,
to complete a Commonwealth of Pennsylvania Sexual Misconduct/Abuse Disclosure
Form (Act 168 Form). Act 168 Forms are standard forms developed by the PDE.

18
Act of October 22, 2014, P.L. 2624, No. 168, 24 P.S. § 1-111.1.

23
Under the School Code, a school entity must obtain a completed Act 168 Form before
it may offer employment to an applicant that will “be employed by or in a school entity
in a position involving direct contact with children.” Section 111.1(b)(1)(iii)(A)-(B)
of the School Code, 24 P.S. § 1-111.1(b)(1)(iii)(A)-(B). As part of this process, the
school entity seeking to hire the applicant is required to conduct a review that includes
contacting former school employers regarding the information required. Act 168
includes a provision prohibiting prospective employers from hiring any applicant
unless the employer first requests a statement from the applicant’s previous employers
as to whether the applicant was the subject of an investigation by a child protective
service agency. 24 P.S. § 1-111.1(b)(2)(ii)(A). Previous employers are required to
provide this information to prospective employers within 20 days. 24 P.S. § 1-
111.1(d)(1). Pursuant to Act 168, should a school employee leave her position while a
hearing on whether she should be classified as a perpetrator of child abuse is pending,
the employee must disclose to prospective school employers whether or not she has
been the subject of investigation by a child protective services agency, “unless the
investigation resulted in a finding that the allegations were false.” Section 111.1(b)(1)
of the School Code, 24 P.S. § 1-111.1(b)(1). In order to ensure compliance, Act 168
prohibits school districts from entering into any severance or resignation agreement
that would have the effect of shielding investigations into allegations that an employee
committed child abuse from future employers. 24 P.S. § 1-111.1(g). Finally, Act 168
provides that any applicant for school employment who provides false information to
prospective school employers may be subject to criminal prosecution, civil penalties,
and professional discipline. 24 P.S. § 1-111.1(c).
Thus, we reject Respondents’ argument that Petitioner has not proven how
her right to pursue her lawful occupation has been deprived by being placed on

24
ChildLine Registry because she is free to pursue her profession. By her inclusion on
the ChildLine Registry, a teacher named as a perpetrator in an indicated report of child
abuse faces an almost insuperable impediment to obtaining a position in education.
Dupuy v. Samuels, 397 F.3d 493, 510-11 (7th Cir. 2005).
Notice of the determination that a teacher is an alleged perpetrator of child
abuse may provide cause to discharge her pursuant to Sections 514 (applicable to non-
tenured employees) or 1122 of the School Code (causes for termination of contract).
24 P.S. §§ 5-514, 11-1122. If the teacher holds a certificate from PDE, DHS must
provide PDE with notice that the certificated individual is named as a perpetrator in an
indicated report. Section 9(a) of the School Code, 24 P.S. § 2070.9(a); 23 Pa. C.S. §
6340(a)(13)(iii). If PDE finds probable cause for educator discipline, which is very
likely for allegations of child abuse, PDE provides notice to any school employer of
that fact. Section 9(e)(4) of the School Code, 24 P.S. § 2070.9(e)(4). Applicants for
school employment must provide to school employers “[a] certification from [DHS] as
to whether the applicant is named in the [ChildLine Registry] as the alleged perpetrator
in a pending child abuse investigation or as the perpetrator of a founded report or an
indicated report.” 23 Pa. C.S. § 6344(b)(2).
In Matter of Allegations of Sexual Abuse at East Park High School, 714
A.2d 339 (N.J. Super. 1998), the Superior Court of New Jersey considered a teacher’s
challenge to her placement in New Jersey’s Central Registry without any type of
hearing, but merely the opportunity to submit a statement to an investigatory body
known as the Institutional Abuse Investigation Unit. The court analyzed the issue
presented in light of the factors relevant to the procedural due process analysis set forth
in Mathews. The court agreed with the aggrieved teacher that inclusion of her name in
the Central Registry caused injury to her reputation and burdened her employment

25
rights. To that end, the court observed that “[t]he inclusion of her name in the Central
Registry is a kind of Sword of Damocles poised above her head. Its clear effect is to
inhibit her from even considering any life changes for fear of disclosure.” 714 A.2d
339. An incursion on such liberty interests, the court held, entitled the teacher to due
process protections under the Federal and New Jersey constitutions. Id. at 347.
We believe, as in East Park, that the potential loss of employment as a
teacher and the right to pursue similar employment are substantial interests that are
affected by being named as a perpetrator in an indicated report. Listing a teacher as a
perpetrator in an indicated report on ChildLine Registry affects not only the teacher’s
present employment in the child education field; it effectively bars the teacher from
obtaining similar employment or benefits in the future.
Relying on all of the foregoing, we agree with Petitioner that the harm
imposed upon teachers is arguably greater than the public at-large and clearly impacts
in a negative way their protected interests. Although reports are not generally available
to the public, 23 Pa. C.S. § 6339, the CPSL gives numerous persons access to indicated
reports involving teachers. Thus, Petitioner has demonstrated that she and other
teachers have a significant interest that will be affected by the official action being
challenged.19 We conclude this Mathews factor weighs in favor of Petitioner.

19
Respondents point out that being named as a perpetrator in an indicated report does not
legally bar a teacher from pursuing her profession. However, employment bans are not the only
deprivation to the right to pursue one’s occupation protected by the Due Process Clause. See C.S.,
184 A.3d at 607 (finding harm to an educator’s employment prospects based on an indicated report).
See also Valmonte, 18 F.3d at 1001 (noting that an indicated finding “places a tangible burden” on
employment prospects when employers are required to consult a central registry during the hiring
process).

26
 b. Risk of Erroneous Deprivation/Value of Additional Safeguards
Turning to the second Mathews element, the analysis can be broken into
two separate but related parts—the risk that the private interest is being deprived
erroneously and the value, if any, of additional safeguards.
Risk of Erroneous Deprivation
Specifically, we are required to first determine whether the procedures
contained in the CPSL and applied to Petitioner result in an “erroneous deprivation” of
her protected property interest in employment and liberty interest in her reputation. As
we evaluate this factor, we ask “considering the current process, what is the chance the
state will make a mistake?” Humphries, 554 F.3d at 1194. In other words, what is the
risk that someone will be erroneously listed?
Currently, Pennsylvania provides some minimal safeguards against
erroneously listing someone in the ChildLine Registry. Within 24 hours of receiving
an allegation of child abuse, a caseworker employed by the county agency must begin
an investigation, which must include, at a minimum an interview of the victim and the
accused, if found. 23 Pa. C.S. §§ 6368(b). An indicated report is warranted only if the
county agency determines, after completion of the investigation, there is “substantial
evidence” of the alleged abuse by the accused. 23 Pa. C.S. § 6303. In cases where the
report of child abuse includes an alleged violation of the criminal laws, the county
agency and the district attorney for the county where the alleged abuse occurred must
coordinate interviews with the alleged perpetrator. 23 Pa. C.S. § 6365.
In her dissent in K.J., Judge Friedman expressed concern that a person’s
name may be entered on the statewide registry based solely on the investigating
caseworker’s interviews, credibility determinations, and conclusion that there is
“substantial evidence” of child abuse.

27
I note that a person’s fundamental interest in protecting his
reputation is in danger under the [CPSL] even before [DHS]
begins an expunction proceeding. Pursuant to the [CPSL], a
person with “reasonable cause to suspect” child abuse files a
report. 23 Pa. C.S. §§ 6311 and 6312. A county caseworker
investigates the report by interviewing designated persons.
23 Pa. C.S. § 6368; see 55 Pa. Code §§ 3490.55(d) and
3490.55(g). The investigating caseworker then, in effect,
determines the credibility of those persons, the competency
of their statements, the weight of the evidence and whether
the weight is substantial enough to support an indicated
report of child abuse. 23 Pa. C.S. § 6303. Where the
investigating caseworker decides that a person has
committed child abuse, an indicated report of child abuse is
entered on the statewide child abuse register. 23 Pa. C.S. §
6338. The person named as a perpetrator, i.e., a person who
has committed child abuse, has forty-five days to seek
expunction of the report. 23 Pa. C.S. §§ 6303 and 6341(a)(2).
In the meantime, [DHS] may release the information on the
statewide register to many individuals and entities for various
purposes. See 23 Pa. C.S. §§ 6336, 6338 and 6340.

Thus, the [CPSL] allows a person’s name to be entered on
the statewide register based solely on the investigating
caseworker’s determination that there is “substantial
evidence” of child abuse. However, “substantial evidence”
is that quantum of evidence sufficient to meet a particular
burden of proof, and, as indicated above, the [CPSL] does
not specifically set forth a burden of proof to guide the
caseworker, generally an individual untrained in the law, in
deciding whether a person has committed child abuse. Thus,
the investigating caseworker makes a report of child abuse
without applying any particular burden of proof.

It shocks my conscience that the [CPSL] would allow the
investigating caseworker to render a de facto adjudication
that is adverse to an individual’s reputation without an
independent adjudicator having had the opportunity to
consider the investigator’s evidence of child abuse in
accordance with established procedures of due process. This

28
 is particularly so because unless, or until, the alleged abuser
timely requests an expunction hearing, the names of the
falsely accused may nevertheless be released to physicians,
child advocates, courts, the General Assembly, the Attorney
General, federal officials, county officials, law enforcement
officials, the district attorney and others. Thus, by the time
[DHS] orders the expunction of an indicated report, a
person’s reputation already may be tarnished erroneously.
K.J., 767 A.2d at 619 n.9 (Friedman, J., dissenting).
Although the absence of a pre-deprivation hearing in the CPSL was not
directly at issue in K.J., we find several of Judge Friedman’s observations pertinent
here.
Pre-Deprivation Investigation
First, the dangers of providing only a pre-deprivation investigation, as
opposed to a pre-deprivation hearing, are evident. The investigation alone, without
some means of testing the charges, creates a high risk for erroneous deprivation of
rights. An investigation, no matter how extensive, does not replace a hearing. Winegar
v. Des Moines Independent Community School District, 20 F.3d 895, 901 (8th Cir.
1994); Jamison, 218 S.W.3d at 409.
Generally, the Pennsylvania and United States Constitutions require some
kind of a hearing before the State deprives a person of a protected liberty or property
interest in order to minimize “substantially unfair or mistaken deprivations.” Zinermon
v. Burch, 494 U.S. 113, 132 (1990); Bell v. Burson, 402 U.S. 535, 542 (1971); Fuentes
v. Shevin, 407 U.S. 67, 80-81 (1972) (“If the right to notice and a hearing is to serve its
full purpose, then, it is clear that it must be granted at a time when the deprivation can
still be prevented.”).20

20
There are limited circumstances where post-deprivation remedies can satisfy due process.
See, e.g., Shore v. Pennsylvania Department of Corrections, 168 A.3d 374 (Pa. Cmwlth. 2017). Post-
(Footnote continued on next page…)

29
 The right to a hearing before a government agency, whose proposed action
will affect the rights, duties, powers or privileges of, and is directed at, a specific
person, has long been embedded in our jurisprudence. In Firman v. Department of
State, State Board of Medicine, 697 A.2d 291 (Pa. Cmwlth. 1997), we quoted from the
decision of the United States Supreme Court in Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 543 (1985), and stated:

[A]n essential principle of due process is that a deprivation
of life, liberty, or property [interests] be preceded by notice
and an opportunity for a hearing appropriate to the nature of
the case. We have described “the root requirement” of the
Due Process Clause as being “that an individual be given an
opportunity for a hearing before he is deprived of any
significant property interest.” This principal requires “some
kind of a hearing” prior to the discharge of an employee who
has a constitutionally protected property interest in his
employment.
Firman, 697 A.2d at 295 (citations omitted).
Moreover, as we explained in C.S.:

Broadly speaking, the principles of due process “require an
opportunity, among other things, to hear the evidence
adduced by the opposing party, cross-examine 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

deprivation remedies satisfy the Due Process Clause where the situation dictates that the State take
immediate action or it is impracticable to provide any meaningful pre-deprivation process. Bell v.
Burson, 402 U.S. 535, 542 (1971).

30
 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).

184 A.3d at 604.
Under the process currently afforded by the CPSL, Petitioner, and teachers
like her, do not receive any kind of hearing prior to being listed in an indicated report
in the ChildLine Registry. Instead, the decision of whether a teacher should be placed
in the ChildLine Registry depends upon a caseworker’s credibility evaluation of the
accused and the witnesses against her. Consequently, the accused is denied the basic
elements of procedural due process, i.e., an opportunity to present witnesses, to cross-
examine adverse witnesses, and have an impartial adjudicator decide factual and legal
issues. Commonwealth v. Thompson, 281 A.2d 856 (Pa. 1971); Lawson v.
Pennsylvania Department of Public Welfare, 744 A.2d 804, 807 (Pa. Cmwlth. 2000);
Lehigh Valley Power Committee v. Pennsylvania Public Utility Commission, 563 A.2d
548 (Pa. Cmwlth. 1989) (hearing or trial procedure is necessary to resolve these
disputed questions of fact).
Additional procedural safeguards, such as an administrative hearing
before the BHA, would preclude an erroneous deprivation. See, e.g., Cherillo v.
Retirement Board of Allegheny County, 796 A.2d 420, 422 (Pa. Cmwlth. 2002)
(holding retiree was entitled, prior to the termination of his disability retirement

31
benefits, to a hearing that comports with the Local Agency Law,21 including the right
to present and cross-examine witnesses, the right to a full stenographic proceeding, and
the right to an adjudication containing findings of fact). See also J.F., 245 A.3d at 674
(“As there was no other appropriate forum for J.F. to be afforded a full and fair
opportunity to be heard on the record, she should have been allowed the opportunity to
challenge the founded reports of child abuse in an administrative hearing before the
[BHA].”).
The nature of the risk of false positive findings of abuse can be
demonstrated by the effect later hearings had on substantiation decisions. For example,
in G.V., Justice Saylor’s concurrence highlighted troubling statistics, noting that the
BHA reversed 97% of cases decided on the merits. 91 A.3d at 675-76. Other courts
have likewise been troubled by high rates of reversal. In Humphries, 554 F.3d at 1200,
the Ninth Circuit Court of Appeals noted that an error rate of 50% “does serve as a
general indication that a large percentage of the individuals listed on [California’s
registry] might have a legitimate basis for expungement.” In Jamison, 218 S.W.3d at
409, the Missouri Supreme Court determined a reversal rate of 35-40% was
unacceptable and that “the probable value [of] providing notice and hearing before
being listed is significant.” In Dupuy, 397 F.3d at 505, the court stated that, “[g]iven
the importance of the interests of both parties, the decisive factor in this case is the high
risk of erroneous deprivation, . . . specifically, the unacceptable 74.6[%] reversal rate
for challenged indicated reports under [the Illinois Department of Children and Family
Service’s] original method of evaluating these claims.” In Valmonte, the petitioners
asserted, without contradiction by the State, that 75% of the challenged reports of abuse
were successfully expunged. According to the Second Circuit, “[i]f 75% of those

21
2 Pa. C.S. §§ 551-555, 751-754.

32
challenging their inclusion on the list are successful, we cannot help but be skeptical
of the fairness of the original determination.” 18 F.3d at 1003-004.
Here, Petitioner has presented evidence that reversals of indicated reports
by ALJs are extremely common. She asserts that administrative review by DHS nearly
always affirms county determinations of child abuse, but on further appeal to the BHA,
ALJs frequently reverse. Petitioner has provided, without contradiction, evidence by
way of the Child Protective Services 2019 Annual Report that establishes in 2019, 293
individuals who failed to obtain relief at the administrative review stage appealed to
the BHA, and ALJs affirmed only 2 such appeals. (Exhibit E to Petitioner’s Br.)
Petitioner has also provided undisputed evidence that ALJs overturned 81% of county
agency findings, and dismissed numerous others. Id. Only 18 county agency
determinations out of 340 (roughly 5%) were upheld by ALJs after a hearing.22 Id.
Petitioner submits that the reason for this reversal rate is the process provided by the
hearing before the ALJ, including cross-examination and the ability to present
evidence. Respondents have not challenged the accuracy of these statistics.
Post-deprivation hearing
Respondents argue that Petitioner and other teachers have an effective
post-deprivation remedy, namely the CPSL’s provision providing for a post-
deprivation hearing before the BHA at which the sufficiency of the abuse must be
established by a fair preponderance of the evidence. Specifically, an alleged
perpetrator has the right to appeal a child abuse determination. Section 6341 of the

22
These statistics are consistent with previous years. In 2018, the BHA adjudicated 409
appeals. Out of these 68 (11.5%) were upheld and 301 (74%) were overturned. In 2017, the BHA
adjudicated 427 appeals. Of these, only 77 (18%) were upheld and 302 (71%) were overturned. In
2016, the BHA adjudicated 352 appeal. Out of these only 43 (12%) were upheld and 242 (69%) were
overturned. See https://www.dhs.pa.gov/docs/Publications/Pages/Child-Abuse-Reports.aspx. (Last
visited June 15, 2023).

33
CPSL provides that “[a]ny person named as a perpetrator . . . in an indicated report of
child abuse” may either “request an administrative review by, or appeal and request a
hearing before, the [DHS] secretary to amend or expunge an indicated report on the
grounds that it is inaccurate or it is being maintained in a manner inconsistent with [the
CPSL].” 23 Pa. C.S. § 6341(a)(2); see 55 Pa. Code §§ 3490.40, 3490.106a. This
includes the right to a timely hearing to determine the merits of the appeal, including
testifying witnesses, cross-examination, and evidence. 23 Pa. C.S. § 6341(c.2).
Respondents assert that the administrative review by the Secretary and further statutory
appeal and hearing process serve as a second check (the first being the investigation
and standards for abuse determinations by county agency) to minimize any erroneous
determination or listing on the ChildLine Registry. We are not convinced that the post-
deprivation hearing in these circumstances affords Petitioner and other teachers the
opportunity to be heard at a meaningful time and in a meaningful manner.
“In terms of the right to be heard at a meaningful time, the second
Mathews element reflects that avoiding erroneous deprivations before they occur is an
important concern under the Due Process Clause. There is thus a general preference
that procedural safeguards apply in the pre-deprivation timeframe.” Bundy v. Wetzel,
184 A.3d 551, 557 (Pa. 2018).
In Goldberg v. Kelly, 397 U.S. 254, 263 (1970), the United States
Supreme Court considered whether due process required that recipients of public
assistance benefits be entitled to an evidentiary hearing before their benefits were
terminated. Under the then-current process, a caseworker who had doubts about the
recipient’s continued eligibility could, after an informal pre-termination review,
immediately terminate benefits. No pre-termination hearing was provided, but
recipients were provided with a post-termination fair hearing. Id. at 258-60. The

34
United States Supreme Court held that when welfare benefits are discontinued, only a
pre-termination evidentiary hearing provides the welfare recipient with due process.
Id. at 264. The United States Supreme Court reasoned that that “termination of aid
pending resolution of a controversy over eligibility may deprive an eligible recipient
of the very means by which to live while he waits.” Id. Concluding that the recipient’s
interests outweighed governmental interests in conserving fiscal and administrative
resources, the United States Supreme Court explained:

The requirement of a prior hearing doubtless involves some
greater expense, and the benefits paid to ineligible recipients
pending decision at the hearing probably cannot be recouped,
since these recipients are likely to be judgment-proof. But
the State is not without weapons to minimize these increased
costs. Much of the drain on fiscal and administrative
resources can be reduced by developing procedures for
prompt pre-termination hearings and by skillful use of
personnel and facilities. Indeed, the very provision for a
post-termination evidentiary hearing in New York’s Home
Relief program is itself cogent evidence that the State
recognizes the primacy of the public interest in correct
eligibility determinations and therefore in the provision of
procedural safeguards. Thus, the interest of the eligible
recipient in uninterrupted receipt of public assistance,
coupled with the State’s interest that his payments not be
erroneously terminated, clearly outweighs the State’s
competing concern to prevent any increase in its fiscal and
administrative burdens. As the District Court correctly
concluded, “(t)he stakes are simply too high for the welfare
recipient, and the possibility for honest error or irritable
misjudgment too great, to allow termination of aid without
giving the recipient a chance, if he so desires, to be fully
informed of the case against him so that he may contest its
basis and produce evidence in rebuttal.”
Goldberg, 397 U.S. at 266.

35
 In Pennsylvania Bar Association v. Pennsylvania Insurance Department,
607 A.2d 850 (Pa. Cmwlth. 1992), this Court held that before an attorney’s name could
be placed on a suspected fraud list because his/her client was suspected of fraud, the
Commonwealth was required to give the attorney notice and an opportunity to be heard.
There, section 1822 of the Vehicle Code, 75 Pa. C.S. § 1822, created an index of
suspected fraudulent automobile insurance claims. As part of the index, the names of
the attorneys representing the suspected fraudulent claims were included in the index.
607 A.2d at 854. The Pennsylvania Bar Association (PBA) challenged the
constitutionality of section 1822, contending that the inclusion of its members’ names
in the index without notice and an opportunity to be heard was an unconstitutional harm
to their reputations. In response, the Commonwealth argued that the index was not
publicly disclosed but was only published to insurers and several other categories of
individuals. This Court rejected that argument, explaining that the attorneys’ inclusion
on the index would “inevitably lead[] to the injury of these attorneys’ reputations, based
upon suspicion alone.” 607 A.2d at 854. We further observed that allowing attorneys
to seek expungement after-the-fact was inadequate, explaining that “[t]he United States
Supreme Court has recognized that notice is the most basic requirement of due process.
Notice is necessary both to inform the interested parties of the pending action and to
provide an opportunity to present objections.” Id. at 856. We reasoned that by the time
the listing was brought to the attorney’s attention, the damage to him/her may have
already been done, and he/she may have lost the opportunity to be heard at a meaningful
time and in a meaningful manner. Id. at 857.
We applied the same rationale recently in Fraternal Order of Police
Lodge No. 5 by McNesby v. City of Philadelphia, 267 A.3d 531 (Pa. Cmwlth. 2021).
There, the Philadelphia district attorney began compiling a “Do Not Call List” of

36
officers who, in the district attorney’s view, were “tainted.” The officers filed a lawsuit
arguing that their placement on the “Do Not Call List” served as a stain on their
professional reputations and violated their rights to due process. Labeling the “Do Not
Call List” a “blacklist of sorts,” this Court determined that the officers had a
constitutionally protected interest in their professional reputation, which required
notice and an opportunity to be heard prior to their placement on the list. We explained
“the appellant police officers should not be required to wait until damage to their
reputations has been done before they are provided a meaningful opportunity to be
heard. As in Pennsylvania Bar Association, the negative stigma of being included on
a Do Not Call List is a threat to the appellant police officers’ reputations.” Id. at 552.
Under the CPSL, the opportunity to challenge the appropriateness of one’s
placement on the ChildLine Registry comes only after the fact, and as such it is akin to
the delayed post-deprivation hearing denounced in Goldberg. Like the sudden and
unexpected loss of welfare benefits addressed in Goldberg, the placement on the
ChildLine Registry causes an immediate and irreparable harm to the teacher’s
reputation and employment prospects. As in Goldberg, we conclude the risks here are
too high for a teacher and “the possibility for honest error or irritable misjudgment too
great” to allow damage to the teacher’s reputation and employment interests without
giving her a chance, if she so desires, to be fully informed of the case against her so
that she may contest its basis and produce evidence before an impartial examiner in
rebuttal. Goldberg, 397 U.S. at 266. By the time the post-deprivation hearing is held,
the damage to the teacher’s reputation has already been done and might not be capable
of being undone by a later finding that the allegations of abuse were unfounded.
Applying the above precepts to the instant matter, we conclude that, by its
nature, the post-deprivation hearing is substantially ineffectual and constitutionally

37
deficient because the adjudicatory process takes place after the act of deprivation has
taken place. As the above cases teach, procedural due process requires opportunity to
confront and cross-examine adverse witnesses at a time prior to actual deprivation.
Because the CPSL fails to provide teachers with adequate protection prior to the
critical moment when deprivation occurs, it fails to protect the private interests of
Petitioner and other teachers.
Value of Additional Safeguards
The second part of the second Mathews factor is the value, if any, of
additional safeguards. The fact that so many hearings resulted in reversals suggests
that there is a probable value in adding procedural safeguards, such as a pre-deprivation
hearing to the process for oral presentation of evidence, and for confrontation and
cross-examination of adverse witnesses.
In this particular case, had Petitioner been afforded a hearing before being
named in an indicated report on the ChildLine Registry, a neutral adjudicator could
have considered and weighed Petitioner’s evidence/testimony that

• walking a student up and down stairs at a brisk pace is
a non-aversive behavioral support technique utilized
in the School District in cases where an autistic child
is in a highly escalated state.

• the technique is called “heavy work” or
“proprioceptive input” in the behavioral science
literature. While the most common form of heavy
work is a weighted vest, the literature also supports
climbing stairs to assist children in controlling
responses to sensory stimuli.

• the school principal approved the use of the technique
in the past for use on an 8[-]year[-]old student with
very similar behaviors to the student in the instant

38
 matter. In the plan for the other student, the School
District explained the technique as follows. “If [the
student] goes into a severe tantrum . . . it is most
beneficial to get this energy out in non-desired tasks. .
. The most effective way to do this is to walk [the
student] at a very brisk pace up and down the hall or
stairs. This strategy has worked time and time again.
This event could last for as little as 5 minutes but as
long as it takes to get [the student] to calm down and
release his energy.”

• on September 14, 2018, [Petitioner] believed that she
was implementing a previously-approved therapeutic
approach to escalated children with autism. Because
this approach was used on other children with similar
disabilities, she did not believe that she was harming
the child or putting him at serious risk. On the
contrary, she believed that she was helping the child
reset his brain and gain control over his body.

• the manner in which the video recording is present
distorts the facts. It appears that the intervention was
recklessly implemented in a continuous manner over
30 minutes. This is not the case. In total, [Petitioner]
implemented the technique for approximately 30
minutes over a four hour time period. The longest
interval lasted 16 minutes. The time breakdown is as
follows:

• The first interval lasted a little less than
2 minutes: from 10:57:49 a.m. to
10:59:33. [Petitioner] and the student
then walked through the halls.

• The second interval lasted 9 minutes
from 11:02:26 to 11:11:30. Part of this
time, another person was performing the
technique with the student.

39
 • The third interval lasted 16 minutes
from 11:19:40 to 11:37:52 a.m.
Throughout this time, the student was
escorted by three different individuals,
including [Petitioner]. Multiple breaks
were built into the intervention.

• After the third interval, the video shows
[Petitioner] and the student in the hall. At
11:55:30, the student is literally climbing
the walls of the hallway. This is after he
was walking the stairway for 27 minutes.
[Petitioner] is seen using the “child
control position” that is taught to most
special education teachers throughout the
Commonwealth.

• The fourth interval lasted 41 seconds,
from 12:09:12 [p.m.] to 12:09:53.

• The final interval lasted approximately
2.5 minutes, from 15:02:57 [p.m.] to
15:05:25.

• throughout the entire process, [Petitioner] took many
breaks and held the student in a manner to ensure he
did not harm himself.

• this particular child, when in these episodes, would
thrash about on the floor, punch others, and slam
himself against various objects and that she utilized
the techniques upon which she was trained to prevent
injury to the student and the student was not, in fact,
injured.
(Request for Administrative Appeal, Exhibit C to Petitioner’s Reply Brief.)
A pre-deprivation hearing would have provided additional procedural
safeguards by allowing Petitioner to present these disputed adjudicative facts. A

40
neutral arbitrator could have, after making credibility determinations and weighing that
evidence, concluded from the above that Petitioner did not commit child abuse as
defined by the CPSL.

c. Countervailing Government Interest/Administrative Burdens
The final step of the Mathews balancing test is to assess the government’s
interests and compare them to what we have already found to be Petitioner’s weighty
interests. Mathews, 424 U.S. at 335.
Government’s Interests
Petitioner readily acknowledges, as she must, that the Commonwealth
clearly has an important interest in protecting children from abuse. There is no doubt
that Pennsylvania has a vital interest in preventing child abuse and that the creation of
a central database, such as the ChildLine Registry, is an effective and responsible
means for Pennsylvania to secure that interest. See Humphries, 554 F.3d at 1194;
Pennsylvania State System of Higher Education, Lock Haven University v. Association
of Pennsylvania State College and University Facilities, 193 A.3d 486, 499 (Pa.
Cmwlth. 2018) (explaining that the CPSL was enacted for the overarching purpose of
protecting children from abuse). Our Supreme Court has long recognized that “the
Commonwealth’s interests in the need to prevent child abuse and to protect abused
children from further injury is fostered by maintenance of the statewide central registry
identifying perpetrators of abuse.” G.V., 91 A.3d at 673 (quoting P.R. v. Department
of Public Welfare, Office of Hearings and Appeals, 801 A.2d 478, 483 (Pa. 2002)).
The Supreme Court and General Assembly have described the Commonwealth’s
interests as an “urgent need” which includes protecting both the child that was abused
and any children who may be potentially abused. Id.; 23 Pa. C.S. § 6302(a). The CPSL
is replete with provisions calling for urgent and timely action to prevent child abuse.

41
See 23 Pa. C.S. § 6302(a) (discussing urgent need); § 6302(b) (calling for swift
investigation of suspected abuse); § 6333 (continuous availability of DHS to receive
reports and identify prior reports).
Thus, it is without question that the Commonwealth has a critical interest
in keeping child abusers out of our schools.
Administrative Burdens
A post-deprivation remedy may be sufficient under certain circumstances,
and there are occasions when a hearing may legitimately be held after the act of
deprivation has taken place. For example, a meaningful post-deprivation remedy may
satisfy due process where it is not “feasible” to provide pre-deprivation due process.
Bundy, 184 A.3d at 557. See, e.g., Hudson v. Palmer, 468 U.S. 517 (1984) (deprivation
occurred as a result of a prison cell search); Parratt v. Taylor, 451 U.S. 527 (1981)
(deprivation occurred when prison employees accidentally lost an inmate’s property).
Respondents argue that a pre-deprivation hearing in these circumstances
would not be feasible. They advocate that minimal procedural safeguards facilitate the
Commonwealth’s efforts to limit children’s exposure to abuse because they allow the
Commonwealth to respond quickly to isolate children from potentially dangerous
contact with adults on the first indication of possible maltreatment and forewarn
providers and licensing agencies of possible future harm. Respondents argue that the
Court should defer to the carefully constructed timeline and post-deprivation hearing
procedure established by the General Assembly in the CPSL. They offer the following
to illustrate the practical difficulties with interjecting a pre-deprivation hearing into the
60-day window for the county agency to investigate and issue a report of unfounded,
indicated, or founded child abuse:

42
 What if the alleged perpetrator is unavailable in the 60[-]day
window but seeks a hearing? What if the perpetrator sought
a continuance of hearing beyond the 60[-]day window? What
if witnesses an alleged perpetrator wishes to testify were
unavailable? Who is to conduct such a hearing and what
adjudication, if any, is to come from the hearing? Will there
be appeal rights and, if so, will an appeal hold up the
investigation?
(Respondents’ Br. at 39-40.)
Respondents further posit that interjecting a pre-deprivation hearing
process before an alleged perpetrator is listed on the ChildLine Registry would render
the post-deprivation process provided by the General Assembly meaningless. They
contend that an alleged perpetrator invoking pre-deprivation review faced with an
adverse ruling would likely appeal that determination, and it is possible that the appeal
would determine whether the alleged perpetrator should be included on an indicated or
founded report. They submit there would be no need to invoke the statutory post-
deprivation hearing process to answer the same question. According to Respondents,
to avoid this absurd result, the Court should rule that the urgent nature of child abuse
situations and the post-deprivation process provided by the General Assembly satisfies
due process of alleged perpetrators.
These arguments, as compelling as they are, do not convince the Court
that there is no solution within the limits of practicability. First, as the United States
Supreme Court explained in Fuentes, “there are ‘extraordinary situations’ that justify
postponing notice and opportunity for a hearing. These situations, however, must be
truly unusual.” 407 U.S. at 90 (citation omitted). The United States Supreme Court
went on to observe:
A prior hearing always imposes some costs in time, effort,
and expense, and it is often more efficient to dispense with
the opportunity for such a hearing. But these rather ordinary
costs cannot outweigh the constitutional right. . . . Procedural

43
 due process is not intended to promote efficiency or
accommodate all possible interests: it is intended to protect
the particular interests of the person whose possessions are
about to be taken.

The establishment of prompt efficacious procedures to
achieve legitimate state ends is a proper state interest worthy
of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and
efficiency. Indeed, one might fairly say of the Bill of Rights
in general, and the Due Process Clause in particular, that they
were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and
efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
Stanley v. Illinois, 405 U.S. 645, 656 [(1972)].
Id. at 90 n.22.
Moreover, the theoretical questions Respondents pose are not for this
Court to answer. It is not the business of a court adjudicating procedural due process
rights to create new procedures or remedy a statutory deficiency. It is for the General
Assembly to devise a response or adopt proper methods consistent with a court’s ruling
that a statutory scheme is unconstitutional. We only note that Petitioner has provided
unchallenged evidence that only 75 out of the 5,655 alleged perpetrators named in
either indicated or founded reports of child abuse in 2019 were school employees.23
Thus, the number of pre-deprivation hearings afforded to teachers would be relatively
minimal. Further, because DHS already has in place procedures to conduct
administrative appellate review, it would seem that making that process available to
teachers prior to placement on the ChildLine Registry would create only a slight

23
This statistic was roughly the same in previous years. In 2018, only 78 out of 5,968 alleged
perpetrators were school employees. In 2017, 113 out of 5,623 were school employees.
See https://www.dhs.pa.gov/docs/Publications/Pages/Child-Abuse-Reports.aspx. (Last visited June
15, 2023).

44
administrative burden. In the absence of any evidence from Respondents that a pre-
deprivation hearing will be unfeasible or unduly burdensome when compared to a post-
deprivation hearing, we conclude that the post-deprivation remedy is not sufficient
under these circumstances to satisfy due process.
Moreover, it does not appear that a pre-deprivation hearing would be
counterintuitive to the urgent nature of child abuse situations in the school setting.
Under the CPSL, once a report of suspected abuse is received, the county agency must
immediately provide or arrange for services necessary to protect the child. 23 Pa. C.S.
§ 6368. When the alleged abuse involves teachers and other school employees, the
county agency must provide school employers with notice of any investigation
involving a school employee at the outset of an investigation. 23 Pa. C.S. §
6340(a)(13)(i). School employers are then required to “immediately implement a plan
of supervision or alternative arrangement for the individual under investigation to
ensure the safety of the child and other children who are in the care of the school.” 23
Pa. C.S. § 6368(i). Petitioner contends that in practice, a “plan of supervision or
alternative arrangement” means that school employees accused of child abuse are
either: (1) placed on leave and ordered to not return to the premises or interact with
students until further notice; or (2) placed under constant supervision by an
administrator or supervisor when in direct contact with children. (Petitioner’s Br. at
26.) Respondents do not challenge her account, nor do we have any reason to doubt
that is the case.
Given these extensive safeguards already in place, the Commonwealth
does not appear to have a strong interest in denying accused teachers a pre-deprivation
process before listing them on the ChildLine Registry on the grounds that doing so
would expose the child and other children from further abuse. There is no reason to

45
conclude that these procedures would be less effective if pre-deprivation due process
was provided before DHS can name a teacher on an indicated report.
In sum, as the above analysis demonstrates, the interests of Petitioner and
other teachers are strong, the risk of error is high, and DHS’s interest in forgoing a pre-
deprivation hearing is low. If erroneous information is added to the ChildLine
Registry, the damage to the teachers may be done before a post-deprivation hearing is
conducted to remove that information. Therefore, we conclude that due process
requires that Petitioner and other teachers must be provided a hearing prior to being
listed as a perpetrator of abuse in an indicated report on the ChildLine Registry. Where
an accused challenges the truthfulness of her accusers and contends, as a matter of fact,
that the charge against her is false, she must be allowed, as a function of procedural
due process, in addition to fair notice, to be present, to adduce evidence, to be
represented by counsel, to confront the witnesses against her and to receive a written
decision. The current CPSL, as applied to Petitioner and other teachers, does not afford
Petitioner minimal due process protection and has deprived Petitioner and other
teachers of their procedural due process rights by failing to provide a pre-deprivation
hearing. These deficiencies are not cured by the post-deprivation hearing.24
Accordingly, we conclude that a pre-deprivation administrative hearing
before the BHA must be provided to Petitioner and other teachers to safeguard
important fundamental constitutional rights. Petitioner’s application for summary
relief as to Count I of the PFR is granted.
2. Count III – Declaratory Relief – Constitutionality of Section 6303
of the CPSL

24
If a court determines that a pre-deprivation hearing is constitutionally required, “no amount
of post-deprivation process is adequate to satisfy the demands of [due process].” Burns v. Alexander,
776 F. Supp. 2d 57, 84-85 (W.D. Pa. 2011).

46
 In her second issue, Petitioner seeks summary relief on Count III of her
PFR, which requests a declaratory judgment that section 6303 of the CPSL is
constitutionally deficient because it provides no pre-deprivation due process to
individuals listed as perpetrators of a “founded” report of child abuse when the basis
of the founded report is acceptance into an ARD program. Although Petitioner
acknowledges she has not yet been named as a perpetrator in a founded report, she
contends that because she has entered into ARD, “DHS will imminently enter [her]
name on the ChildLine Registry as a perpetrator in a founded report of child abuse
solely on the basis of her acceptance into an ARD program involving the same factual
circumstances underlying a report of child abuse to the ChildLine database.” (PFR,
¶87.)
Section 6303 of the CPSL (Definitions) defines a “founded report” as
follows:

“Founded report.” A child abuse report involving a
perpetrator that is made pursuant to this chapter, if any of the
following applies:

***
(2) There has been an acceptance into an [ARD]
program and the reason for the acceptance involves the
same factual circumstances involved in the allegation of
child abuse.

23 Pa. C.S. § 6303 (emphasis added).
In J.F., J.F. was identified as a perpetrator of abuse of her 15-month-old
twin children. J.F. filed an administrative appeal. While her administrative appeal was
pending, J.F. entered into ARD for two criminal counts of endangering the welfare of
children. As the result of J.F.’s entry into ARD, the county agency changed the status
of the child protective services report from “indicated” to “founded” and moved to

47
dismiss J.F.’s pending administrative appeal. 245 A.3d at 664. DHS granted the
county agency’s motion to dismiss J.F.’s appeal. J.F. appealed to this Court, arguing
that she was entitled to a hearing to determine the merits of her appeal. She argued
that in cases of indicated reports, an accused is entitled to a post-deprivation hearing
under Section 6341 of the CPSL. She argued that an accused named in founded reports
should also be entitled a hearing, but Section 6341 provides only that “[a] person named
as a perpetrator of a founded report of child abuse must provide to [DHS] a court order
indicating that the underlying adjudication that formed the basis of the founded report
has been reversed or vacated.” 23 Pa. C.S. § 6341. The issue eventually reached our
Supreme Court, which held that because the founded report was based on ARD, as
opposed to a criminal conviction or a dependency adjudication, there was no agency
hearing in which J.F. had an opportunity to be heard. Accordingly, the J.F. Court held
that, in the absence of another appropriate forum to challenge DHS’s adjudication of
child abuse in a recorded evidentiary hearing, a named perpetrator in a report
designated as founded based upon the perpetrator’s voluntary entry into ARD is
entitled to an administrative hearing.
Petitioner asserts that J.F. did not answer the question of whether the
administrative hearing should occur after an accused enters ARD but before or after
the perpetrator is listed in a founded report.25 She asks us to decide that question here
and submits that the administrative hearing required in J.F. should, as a matter of due
process, occur pre-deprivation. In other words, she submits that the hearing required
in J.F. should be provided after entry into ARD – but before the report’s status is

25
We do not agree with Petitioner that the Supreme Court in J.F. did not answer the question
of whether the administrative hearing should occur before or after the accused enters ARD. In that
case, the accused mother appealed the founded report and argued that she was entitled to an
evidentiary hearing after she entered an ARD program for a criminal charge of child endangerment.
That is the question the Supreme Court answered.

48
changed from indicated to founded. Revisiting the Mathews factors, she argues that
perpetrators named in a founded report based on entry into ARD immediately lose their
teaching certificates; there is a risk of erroneous deprivation because the perpetrator
has only been through ARD and there is no adjudication of guilt; and there would be
minimal burden or concern with providing a pre-deprivation hearing.
In response, and in their application for partial summary relief,
Respondents argue that Petitioner lacks standing to mount this challenge to the
constitutionality of the CPSL as it relates to founded reports because she has yet to be
listed in the ChildLine Registry as a perpetrator in any founded report of child abuse.
They further contend that, although Petitioner entered ARD, she has not demonstrated
a likelihood that she will, with certainty, become a subject of a founded report.
“In Pennsylvania, a party to litigation must establish as a threshold matter
that he or she has standing to bring an action.” Markham v. Wolf, 136 A.3d 134, 140
(Pa. 2016) (citing cases). To satisfy the standing requirement, a litigant must be
“aggrieved,” i.e., he or she must have a “substantial, direct, and immediate interest in
the matter.” Id. “To have a substantial interest, concern in the outcome of the challenge
must surpass ‘the common interest of all citizens in procuring obedience to the law.’”
Id. (quoting In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003)). To satisfy the criterion
of directness, a litigant must “demonstrat[e] that the matter caused harm to the party’s
interest.” Id. at 140 (internal quotation marks omitted). “Finally, the concern is
immediate if that causal connection is not remote or speculative.” Id. (internal
quotation marks omitted).
In some situations, our courts have held that although the harm alleged
had not yet been imposed, the challenge was nevertheless not speculative because the
harm would be imposed by operation of law. For example, in Gregory v. Pennsylvania

49
State Police, 160 A.3d 274 (Pa. Cmwlth. 2017) (Cohn Jubelirer, J., single-judge op.),
we held that an inmate who was granted parole but not yet released had an immediate
interest in whether the Sexual Offender Registration and Notification Act26 (SORNA)
applied to him. Relying on Williams v. Department of Corrections (Pa. Cmwlth., No.
353 M.D. 2014, filed October 15, 2015) (en banc), where we held death row inmates
had standing although there were no active death warrants in effect, we determined
“the harm [wa]s not speculative because the harm will be imposed by operation of
law.” Gregory, 160 A.3d at 277 (emphasis added). We explained that as soon as his
home plan was approved, the inmate would be subject to SORNA’s registration
requirements. Id. With regard to ripeness, we held that the issues were fully developed
for the Court’s review, and waiting for SORNA to be imposed would add little to this
Court’s review of the legal issues raised. Id. Regarding hardship, we concluded that
the inmate would face hardship by delaying review and waiting for the Pennsylvania
State Police to place him on the sex offender registry.
Petitioner argues that she “will” imminently be listed in a founded report
as the result of her entry into ARD because under the CPSL, the county agency is
required, by operation of law, to change the status of the reports from indicated to
founded as the result of an accused’s entry into ARD. We agree.
Here, Petitioner has standing to pursue Count III because, by law, an
accused’s entrance into an ARD program transforms a pending or indicated report of
child abuse into a founded report. It is immaterial that CYS, the relevant local child
protective services agency, has not revised its investigative determinations or that DHS
has not updated the ChildLine Registry, since the effect of Petitioner’s admittance into
an ARD program is unmistakably clear from a legal standpoint. Indeed, the child abuse

26
42 Pa. C.S. §§ 9799.10-9799.41.

50
allegations made against Petitioner must now be considered a founded report, despite
the fact that those agencies have thus far, for reasons unexplained, avoided some of
their ministerial and nondiscretionary responsibilities, because that is what the CPSL
requires. See 23 Pa. C.S. §§ 6303, 6338(a). We therefore conclude that Petitioner has
articulated an interest in Count III that is substantial, direct, and immediate, and
consequently deny Respondents’ cross-application for partial summary relief as to
Petitioner’s standing to make the claim she presents therein.
Having concluded that Petitioner has standing to pursue the claim she set
forth in Count III of the PFR, we turn to Petitioner’s assertion that she is entitled to a
declaration regarding the unconstitutional nature of CPSL’s procedure relating to the
treatment of an accused’s acceptance into an ARD program and the change in the
report’s status from indicated to founded.
For the most part, our analysis as set forth above applies equally here.
Petitioner’s interests in her reputation and in pursuing her employment as a teacher are
protected by due process. Teachers, like Petitioner, named as perpetrators in founded
reports face significant reputational consequences and employment impacts that are
unique as the result of being named in a founded report. Educators who are named as
perpetrators in a founded report of child abuse lose their right to work in their chosen
profession. 24 P.S. § 2070.9d(a)(1); 23 Pa. C.S. § 6344(c). This revocation, and the
reasons for it, are published on a publicly accessible Internet website. Section 15 of
the Educator Discipline Act, 24 P.S. § 2070.15(d).27
We agree with Petitioner that there is a high risk of erroneous deprivation
of these rights if an educator who has entered an ARD program is named in a founded
report without being afforded a hearing. As noted, our Supreme Court has already

27
Added by the Act of December 14, 1989, P.L. 612.

51
held, given the nature of ARD proceedings, there is no “full and fair” opportunity to be
heard provided in due course when the founded report reflects an ARD. J.F., 245 A.3d
at 673. Our Supreme Court held that, because the founded report was based on ARD,
there was no agency hearing in which J.F. had an opportunity to be heard. Accordingly,
the J.F. Court held that, in the absence of another appropriate forum to challenge an
adjudication of child abuse in a recorded evidentiary hearing, a named perpetrator in a
report designated as founded based upon the perpetrator’s voluntary entry into ARD is
entitled to an administrative hearing.
Because being named in a founded report unquestionably affects her
reputational rights and her rights to pursue her career as an educator, Petitioner is
entitled to a “full and fair” opportunity for a hearing at a time when the deprivation can
still be prevented. Zinermon, 494 U.S. at 132. We hold here that the administrative
hearing must be held before the educator is named in the founded report.
Accordingly, for these reasons, we conclude that Petitioner and other
educators like her are entitled to pre-deprivation process in the form of a BHA hearing
before entry into the ARD program can been deemed to have transformed an indicated
child abuse report into one that is founded.
Petitioner’s application for partial summary relief to the extent it seeks
relief under Count III of the PFR is granted. Respondents’ application is denied as it
pertains to this Count.
3. Count V - Mandamus
In her third issue, Petitioner seeks summary relief on Count V of her PFR,
which seeks a writ of mandamus directing DHS to remove the report on Petitioner from
the ChildLine Registry as she was not provided with appropriate due process
protections.

52
 Mandamus is an extraordinary remedy which is designed to compel the
performance of a purely ministerial act or mandatory duty on the part of a public
officer. Flaherty v. City of Pittsburgh, 515 A.2d 91 (Pa. Cmwlth. 1986). In order to
prevail in her action for mandamus, Petitioner must establish that she has a clear legal
right to the relief requested, that Respondents have a corresponding duty to perform a
ministerial act or mandatory duty, and that no other adequate remedy at law is available.
Borough of Plum v. Tresco, 606 A.2d 951 (Pa. Cmwlth. 1992).
Here, Petitioner has not established her right to mandamus relief because
she has a clear and adequate remedy at law, which she is free to pursue. That is,
Petitioner may request that the Secretary, under section 6341(a)(1) of the CPSL,28
expunge her name from the ChildLine Registry unless and until such time as she is
provided with a pre-deprivation hearing, as more fully described in this Opinion.
Accordingly, Petitioner’s application for partial summary relief is denied
as to Count V, and her petition in mandamus is dismissed.

28
Section 6341(a)(1) of the CPSL provides:

(a) General rule.--Notwithstanding section 6338.1 (relating to
expunction of information of perpetrator who was under 18 years of
age when child abuse was committed):

(1) At any time, the secretary may amend or expunge any record
in the Statewide database under this chapter upon good cause shown
and notice to the appropriate subjects of the report. The request shall
be in writing in a manner prescribed by [DHS]. For purposes of this
paragraph, good cause shall include, but is not limited to, the following:

(i) Newly discovered evidence that an indicated report of child
abuse is inaccurate or is being maintained in a manner inconsistent with
this chapter.

23 Pa. C.S. § 6341(a)(1).

53
 B. RESPONDENTS’ CROSS-APPLICATION FOR PARTIAL SUMMARY
RELIEF
Much of Respondents’ cross-application for partial summary relief echoes
the arguments made in opposition to Petitioner’s application for partial summary relief.
There is one argument, however, that does not overlap. In their cross-application,
Respondents argues that insofar as Petitioner asserts claims on behalf of all other school
employees affected by the CPSL or any other individual other than herself, because
Petitioner has not brought a class action, has not joined these non-parties via permissive
joinder, and does not have third-party standing to bring these claims on their behalf,
the Court should dismiss all such claims. (Respondents’ Cross-Application for
Summary Relief ¶ 12.) We must disagree.
There have been many cases where this Court and our Supreme Court
have considered constitutional challenges brought by an individual and concluded that
a law was unconstitutional as to a group of individuals. See, e.g., In re J.B., 107 A.3d
1 (Pa. 2014) (where, although appellants did not bring the case on behalf of all
juveniles, the Supreme Court held that “the application of SORNA’s lifetime
registration provision as applied to juveniles is unconstitutional”); Wajert v. State
Ethics Commission, 420 A.2d 439, 442 (Pa. 1980) (in a case brought under the Public
Official and Employee Ethics Act29 by a former common pleas court judge on behalf
of himself, the Supreme Court concluded that the law was unconstitutional as to all
attorneys because it infringed upon the Supreme Court’s power to regulate the practice
of law); Gmerek v. State Ethics Commission, 751 A.2d 1241, 1263 (Pa. Cmwlth. 2000),
(although action was brought by two lawyers, the court held that what is known as the

29
65 Pa. C.S. §§ 1101-1113.

54
Lobbying Disclosure Act30 was unconstitutional as applied to all lawyers who engaged
in lobbying).
IV. CONCLUSION
We recognize the burdens agencies such as DHS face. Nonetheless, it is
critically important that we ensure that our agencies act within the bounds of the
Constitution.
For the reasons stated herein, we conclude that, as applied to Petitioner
and other teachers, Section 6368 of the CPSL does not provide adequate procedural
due process protection. After consideration and application of the three factors of the
Mathews test, the Court finds that as to Counts I and III all three Mathews factors, as
applied to this case, weigh in favor of Petitioner and other teachers and against
Respondents. On balance, Petitioner’s constitutional rights and the high risk of
erroneous deprivation, when compared to the Commonwealth’s interests in denying
Petitioner a pre-deprivation hearing,31 the feasibility of providing a prompt pre-
deprivation hearing, and the many safeguards that are in place to protect the students
once a possible abuser is identified, tilt toward the conclusion that Petitioner and other
teachers must be afforded a pre-deprivation hearing before an impartial ALJ before
being listed as a perpetrator in an indicated report on the ChildLine Registry and in a
founded report, based on ARD. The post-deprivation process as applied to Petitioner
and other teachers is simply not adequate to cure the constitutional violation caused by
placement on the ChildLine Registry without a pre-deprivation hearing.

30
65 Pa. C.S. §§ 13a01-13a11.

31
We reiterate that it is without question that the government has a significant interest in
keeping child abusers out of our schools. However, as the Superior Court of New Jersey in East Park
astutely observed, it also has, or should have, an equal interest in not stigmatizing the innocent or
foreclosing them from employment and other opportunities. 714 A.2d at 347-48.

55
 Petitioner’s application for partial summary relief as to Counts I and III
of the PFR is granted. Petitioner’s application for partial summary relief as to Count
V of the PFR is denied. Respondents’ cross-application for partial summary relief is
denied, except to the extent it requests judgment in its favor as to Count V of the PFR.

________________________________
PATRICIA A. McCULLOUGH, Judge

56
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

S.F., :
Petitioner :
: No. 574 M.D. 2020
v. :
:
Pennsylvania Department of Human :
Services; Teresa D. Miller, in her :
official capacity as secretary of the :
Department of Health and Human :
Services; Pennsylvania Professional :
Standards and Practices Commission, :
:
Respondents :

ORDER

AND NOW, this 11th day of July, 2023, Petitioner S.F.’s Application
for Partial Summary Relief as to Counts I and III of the Petition for Review is
hereby GRANTED. Petitioner S.F.’s Application for Partial Summary Relief as to
Count V of the Petition for Review is hereby DENIED.
The Cross-Application for Partial Summary Relief filed by
Respondents Pennsylvania Department of Human Services, Teresa D. Miller, in her
official capacity as Secretary of the Department of Health and Human Services, and
the Pennsylvania Professional Standards and Practices Commission is hereby
GRANTED only as to Count V of the Petition for Review only. It is DENIED in
all other respects.

________________________________
PATRICIA A. McCULLOUGH, Judge