          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scot Allen Shoup                        :
                                        :
             v.                         :   No. 426 C.D. 2017
                                        :   Submitted: December 7, 2018
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                  Appellant             :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                     FILED: March 7, 2019

             The Department of Transportation, Bureau of Driver Licensing
(Department), appeals an order of the Court of Common Pleas of Delaware County
(trial court) sustaining the statutory appeal of Scot Allen Shoup (Licensee). The trial
court vacated the Department’s 18-month suspension of Licensee’s operating
privilege for his 2014 convictions for driving under the influence of alcohol (DUI)
and leaving the scene of an accident. In doing so, the trial court held that the two
years and seven months between Licensee’s convictions and the Department’s
notices of suspension constituted an “extraordinary delay” warranting relief under
Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d
528, 535 (Pa. Cmwlth. 2016). We affirm.
               On January 7, 2014, Licensee was convicted of DUI1 and leaving the
scene of an accident that occurred on August 10, 2013. Reproduced Record at 57a,
63a (R.R. __). On August 16, 2016, Licensee received two suspension notices from
the Department. The first notice suspended his driving privilege for six months,
effective September 20, 2016, for leaving the scene of an accident in violation of
Section 3743(a) of the Vehicle Code. The second notice suspended his driving
privilege for one year, effective March 20, 2017, for DUI in violation of Section
3802(b) of the Vehicle Code.
               Licensee appealed the notices of suspension, and a hearing was
conducted by the trial court. Licensee first argued that the Department’s notice
suspending his license for leaving the scene of an accident was inaccurate because
he was not convicted under Section 3743(a) of the Vehicle Code. Second, Licensee
argued that the notices of suspension were delayed by more than two years after his
convictions, which caused him prejudice.
               On the first issue, the Department submitted the two notices of
suspension and the two certifications from the Delaware County Clerk of Courts2
showing that Licensee was convicted of violating Sections 3802(b) and 3743(a) of
the Vehicle Code. In response, Licensee admitted to the Section 3802(b) violation
for DUI, but he denied the conviction under Section 3743(a). Licensee presented




1
  Licensee was convicted under Section 3802(b) of the Vehicle Code for driving with a “high rate
of alcohol,” i.e., an alcohol concentration of at least 0.10 percent but less than 0.16 percent. 75
Pa. C.S. §3802(b).
2
  Both certifications were electronically transmitted to the Department on August 8, 2016.

                                                2
the certificate of judgment of sentence signed by the trial court on January 7, 2014.
The certificate listed the charge as “Accidents involving injury.”3 R.R. 76a.
               Section 3743(a) of the Vehicle Code addresses leaving the scene of an
accident that causes injury to property and states, in relevant part, as follows:

               The driver of any vehicle involved in an accident resulting only
               in damage to a vehicle or other property which is driven or
               attended by any person shall immediately stop the vehicle at the
               scene of the accident or as close thereto as possible but shall
               forthwith return to and in every event shall remain at the scene
               of the accident until he has fulfilled the requirements of section
               3744 (relating to duty to give information and render aid).

75 Pa. C.S. §3743(a) (emphasis added). Section 3742(a) addresses an accident
involving injury to a person and states, in relevant part, as follows:

               The driver of any vehicle involved in an accident resulting in
               injury or death of any person shall immediately stop the vehicle
               at the scene of the accident or as close thereto as possible but
               shall then forthwith return to and in every event shall remain at
               the scene of the accident until he has fulfilled the requirements
               of section 3744 (relating to duty to give information and render
               aid).

75 Pa. C.S. §3742(a) (emphasis added). Licensee argued that the certification of the
Clerk of Courts was inaccurate because he did not leave the scene of an accident
involving personal property.            He argued that this inaccuracy invalidated the
Department’s suspension. The Department did not reply to this argument.



3
  Although the sentencing court listed the charge as “Accidents involving injury,” the sentencing
court also graded the offense as “m3.” R.R. 76a. Leaving the scene of an accident involving
damage to property is a misdemeanor of the third degree. 75 Pa. C.S. §3743(b). Leaving the scene
of an accident involving personal injury is a misdemeanor of the first degree, unless the victim
suffers serious bodily injury or dies, in which case it is a felony. 75 Pa. C.S. §3742(b). Thus, there
is a discrepancy between the grading of the offense and the charge.
                                                  3
             Licensee testified and stated that at the time of his arrest he was a
carpenter. In 2013 and 2014, he worked at two different job sites and could get to
either location by public transportation. In 2015, he took a new job in Trainer,
Pennsylvania, as a “carpenter general foreman.” Notes of Testimony, 12/6/2016, at
16 (N.T. __); R.R. 35a. He is in charge of seven facilities located throughout
Pennsylvania, Delaware and New Jersey, and must drive from site to site. Having a
driver’s license is a requirement for the job. Licensee also testified that the loss of
his license would be detrimental to his daughter.         She has “juvenile type I
diabetes[,]” N.T. 19; R.R. 38a, and there are times she must be transported to the
doctor or hospital quickly to stabilize her blood sugar. Since his 2013 arrest,
Licensee testified that he has not had any moving violations.
             Joann Shoup, Licensee’s wife, testified and confirmed that their
daughter has serious health issues. Because Mrs. Shoup works, there are times she
relies on Licensee to care for their daughter. He needs a driver’s license in order to
take her to the hospital or pick up medicine.
             In Gingrich, 134 A.3d 528, this Court held that a license suspension can
be set aside for a delay between the conviction and the suspension, where the delay
is caused by the failure of the clerk of courts to timely notify the Department. The
licensee must establish that certification of the conviction was delayed for an
extraordinary period of time; the licensee has not had any Vehicle Code violations
for a period of time; and the licensee was prejudiced by the delay.
             Here, the trial court found that Licensee met all three Gingrich factors.
The Clerk of Courts notified the Department of Licensee’s January 7, 2014,
conviction on August 8, 2016, and the trial court found this delay extraordinary.
Since his 2013 arrest, Licensee had no other Vehicle Code violations. Licensee’s


                                          4
evidence about his job and his daughter’s illness established prejudice. The trial
court sustained Licensee’s suspension appeal and restored his operating privilege.
               The Department has appealed to this Court4 and raises two issues. First,
the Department argues that the delay of two years and seven months is not
extraordinary. Second, the Department argues that the case should be remanded for
the trial court to determine whether Licensee was convicted under Section 3742(a)
or Section 3743(a) of the Vehicle Code.
               In Gingrich, the delay between the conviction and license suspension
was ten years. The Department notes that in Pokoy v. Department of Transportation,
Bureau of Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998), this Court held that
a delay of four years was not unreasonable. As such, Licensee’s delay of under three
years cannot be held extraordinary. Middaugh v. Department of Transportation,
Bureau of Driver Licensing, 196 A.3d 1073 (Pa. Cmwlth. 2018) (en banc), is
dispositive of the Department’s argument.
               In Middaugh, the licensee was convicted of DUI on March 31, 2014,
but the Department did not receive certification of his conviction until August 8,
2016. On August 23, 2016, the Department notified the licensee that his operating
privilege was suspended for one year, based on the 2014 conviction. The licensee
appealed, asserting that the delay of two years and four months was fundamentally
unfair and caused him great prejudice. Applying the three-part Gingrich test, the
trial court agreed. On appeal to this Court, the Department argued that the trial court



4
 “Our standard of review in a license suspension case is to determine whether the factual findings
of the trial court are supported by competent evidence and whether the trial court committed an
error of law or an abuse of discretion.” Negovan v. Department of Transportation, Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017) (quoting Gammer v. Department of
Transportation, Bureau of Driver Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010)).
                                                5
erred because Gingrich required a delay of approximately 10 years to be
extraordinary. Therefore, the three-prong test set forth in Gingrich was inapplicable.
             We rejected the Department’s contention because Gingrich did not
establish that the delay had to be ten years to be considered extraordinary. We
explained as follows:

             Since Gingrich, the courts of common pleas and this Court have
             applied the Gingrich factors to various circumstances and time
             periods. As this case law has developed, the courts have
             carefully evaluated whether periods of delay shorter than 10
             years can qualify as extraordinarily extended periods of time. For
             example, this Court has affirmed decisions of the courts of
             common pleas which held that non-Departmental delays of 9
             years, 7 years and 10 months, 2 years and 7 months, and 2 years
             and 4 months can be considered extraordinarily extended periods
             of time to meet Gingrich’s first factor, where the other Gingrich
             factors were also satisfied.[]

Middaugh, 196 A.3d at 1083 (internal footnote omitted). In Middaugh, this Court
refined the test for determining whether a delay qualifies as extraordinary.
             Because the Clerk of Courts is required to give notice of a conviction
within 10 days, that period must be considered in calculating the delay. 75 Pa. C.S.
§6323(l)(i) (clerk of court must send notice of a relevant conviction to the
Department “within ten days after final judgment of conviction.”). We also held that
the period of suspension required by the particular conviction must be considered.
We explained as follows:

             [I]f a clerk of court reports a conviction to the Department within
             the applicable period of the license suspension plus 10 days, such
             delay, as a matter of law, cannot be an extraordinarily extended
             period of time sufficient to meet the first Gingrich factor.[]
             However, where the delay exceeds that period, and where the
             remaining Gingrich factors are satisfied, a court of common
             pleas can find that relief is appropriate under Gingrich.

                                          6
Id. at 1086 (internal footnote omitted). In Middaugh, the delay of two years and four
months exceeded the one-year license suspension, plus 10 days. Therefore, license
showed the delay was extraordinary. Because the licensee established that she
remained free of driving violations for 51 months and would suffer prejudice if her
license were suspended, we held the licensee also satisfied the remaining Gingrich
factors and affirmed the trial court.
              Here, the Department does not dispute that Licensee established the
second and third factors, i.e., no further driving violations and prejudice. The
Department’s only claim is that a delay of two years and seven months is insufficient
to show extraordinary delay. Middaugh holds to the contrary. The delay of two
years and seven months is greater than the putative 18-month license suspension
period, plus 10 days. The delay is extraordinary, and we reject the Department’s
first claim of error.
              In its second issue, the Department complains that the trial court never
addressed whether Licensee’s conviction for leaving the scene of an accident was
based on Section 3742(a) or Section 3743(a) of the Vehicle Code. The Department
requests a remand for the trial court to make this determination and, if the trial court
finds Licensee violated Section 3742(a), vacate the six-month suspension and
impose a one-year suspension.5
              At the hearing, the Department never asked the trial court to vacate the
suspension and impose a longer one. Nor did the Department raise this issue in its


5
  Pursuant to Section 1532(a)(3) of the Vehicle Code, a conviction under “Section 3742 (relating
to accidents involving death or personal injury)” warrants a one-year license suspension. 75 Pa.
C.S. §1532(a)(3). Pursuant to Section 1532(b)(1) of the Vehicle Code, a conviction under “Section
3743 (relating to accidents involving damages to attended vehicle or property)” warrants a six-
month license suspension. 75 Pa. C.S. §1532(b)(1).

                                               7
concise statement of errors complained of on appeal under Pennsylvania Rule of
Appellate Procedure 1925(b).6 Original Record, Item No. 9, at 1-3. The law is clear
that “any issues not raised in a Rule 1925(b) statement will be deemed waived….”
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).                       See also PA. R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). Further,
“Rule 1925[(b)] violations may be raised by the appellate courts sua sponte[.]” Hill,
16 A.3d at 494. Thus, we conclude the Department has waived its second claim of
error.7
               Accordingly, the order of the trial court is affirmed.

                                          _____________________________________
                                          MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.




6
  It provides:
        Direction to file statement of errors complained of on appeal; instructions to the
        appellant and the trial court.--If the judge entering the order giving rise to the notice
        of appeal (“judge”) desires clarification of the errors complained of on appeal, the
        judge may enter an order directing the appellant to file of record in the trial court
        and serve on the judge a concise statement of the errors complained of on appeal
        (“Statement”).
PA. R.A.P. 1925(b).
7
  In any event, a remand would be futile. Even if Licensee’s six-month sentence was modified to
1 year, his aggregated two-year sentence (plus 10 days) would remain less than the period of delay.
As such, he would still meet the first prong of Gingrich.
                                                8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scot Allen Shoup                  :
                                  :
           v.                     :   No. 426 C.D. 2017
                                  :
Commonwealth of Pennsylvania,     :
Department of Transportation,     :
Bureau of Driver Licensing,       :
                  Appellant       :


                                ORDER

           AND NOW, this 7th day of March, 2019, the order of the Court of
Common Pleas of Delaware County, dated March 15, 2017, is hereby AFFIRMED.


                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Scot Allen Shoup                       :
                                       :
                   v.                  : No. 426 C.D. 2017
                                       : Submitted: December 7, 2018
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                                       :
                          Appellant    :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge


CONCURRING OPINION
BY JUDGE WOJCIK                                       FILED: March 7, 2019


             I concur in the result only. I join the Majority’s holding that the delay
of two years and seven months between the licensee’s convictions and the notices of
suspension issued by the Department of Transportation, Bureau of Driver Licensing,
constituted an “extraordinary delay” under Middaugh v. Department of
Transportation, Bureau of Driver Licensing, 196 A.3d 1073 (Pa. Cmwlth. 2018) (en
banc). I write separately to express my view that when the relevant provisions of
the Vehicle Code are read together, timely compliance by the clerk of courts with
Section 6323(1) of the Vehicle Code, 75 Pa. C.S. §6323(1), is an absolute predicate
for a license suspension under Section 3804(e) of the Vehicle Code, 75 Pa. C.S.
§3804(e).
                Section 6323(1)(i) of the Vehicle Code addresses the responsibility of
the local clerk of courts, stating, “within ten days after final judgment of conviction
or acquittal or other disposition of charges under any of the provisions of this
title .     . . [the clerk] shall send to the department a record of the judgment of
conviction, acquittal or other disposition.” 75 Pa. C.S. §6323(1)(i) (emphasis
added). Section 3804(e)(1) of the Vehicle Code states that the Department “shall
suspend the operating privilege of an individual under paragraph (2) [(setting forth
the periods of suspension)] upon receiving a certified record of the individual’s
conviction . . . .” 75 Pa. C.S. §3804(e)(1) (emphasis added).
          We have long recognized that these provisions reflect the legislative intent to
keep unsafe drivers off the road.         Importantly, we also have recognized that
fulfillment of the legislative intent depends on there being no delay:

                These two sections of the Vehicle Code impose
                complementary statutory obligations on the clerks of
                court, to send notice of conviction to the Department
                within 10 days, and on the Department, to suspend the
                license for the requisite period upon receipt of the notice
                of conviction. Our courts have interpreted these Vehicle
                Code provisions as evidencing the General Assembly’s
                intent to keep unsafe drivers off the highways for stated
                periods of time, in order to protect the traveling public.
                This intent is effectuated by suspending the licenses of
                dangerous drivers and doing so quickly — in temporal
                proximity to the offense that created the safety concern.
                To fulfill the General Assembly’s intent, both the
                Department and the clerks of court must promptly perform
                their statutory obligations; if there is a delay by either of
                them, the result is the same — the unsafe driver will not be
                removed from the road timely.
Middaugh, 196 A.3d at 1080 (emphasis added).
                In Gingrich v. Department of Transportation, Bureau of Driver
Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016) (en banc), involving a ten-year delay,
                                         MHW - 2
we revisited our prior holdings that only delays attributable to the Department may
be actionable, and we redefined that standard to include other, “extraordinary,”
delay.1 Unfortunately, our current jurisprudence now allows a clerk of courts, as a
matter of law, a minimum of six additional months within which to perform its
statutory obligation, thereby implicitly amending Section 6323(1)(i).2 Mindful that
electronic transmission of records has substantially reduced the burden of complying
with the ten-day limit, I urge the legislature to revisit and clarify the complementary
obligations imposed under Sections 6323(1)(i) and 3804(e)(1) of the Vehicle Code.




                                            MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.




       1
          In doing so, we departed from the analysis set forth in Department of Transportation,
Bureau of Driver Licensing v. Green, 546 A.2d 767, 768 (Pa. Cmwlth. 1988), which rejected
assertions of prejudice that we now evaluate under Gingrich and concluded that we “can do no
better than to adhere to the steady line of decisions [holding that delay not attributable to the
Department] will not operate to invalidate driver’s license suspensions . . . .”

       2
         Thus, albeit for different reasons, I agree with the recommendation expressed by the
minority opinions in Middaugh that we abandon our ongoing reliance on Gingrich.
                                          MHW - 3
