          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kristoffer Orwig                        :
                                        :
                   v.                   :   No. 286 C.D. 2015
                                        :   SUBMITTED: April 29, 2016
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :



BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                     FILED: June 3, 2016


            The Commonwealth of Pennsylvania, Department of Transportation
(Department), Bureau of Driver Licensing, appeals from an order of the Court of
Common Pleas of Lycoming County sustaining the statutory appeal of Licensee,
Kristoffer Orwig, from a one-year suspension of his operating privilege imposed
by the Department pursuant to its receipt of a report of a ten-year old conviction
from the York County Clerk of Courts for violation of Section 3802(d)(1)(i) of the
Vehicle Code (Code), 75 Pa. C.S. § 3802(d)(1)(i), driving under the influence of a
Schedule I controlled substance. In support of its decision to sustain Licensee’s
statutory appeal, common pleas cited the ten-year delay in imposing the suspension
and the Department’s knowing reliance on the flawed system of the York County
Clerk of Courts to provide it with records of conviction in a timely manner
pursuant to Section 6323(1)(i) of the Code.1 Based on our determination that the
present case satisfies the extraordinary circumstances exception for the invalidation
of an operating privilege suspension as set forth in our recent decision in Gingrich
v. Department of Transportation, Bureau of Driver Licensing, ___ A.3d ___ (Pa.
Cmwlth., No. 748 C.D. 2015, filed March 30, 2016), we affirm.2
                The pertinent background is as follows.                After its October 2014
receipt of Licensee’s May 14, 2004, record of conviction from the York County
Clerk of Courts, the Department by official notice dated and mailed November 4,
2014, advised Licensee that his operating privilege was being suspended for one
year, effective December 9, 2014, as a consequence of his conviction for violating




    1
        Section 6323(1)(i) of the Code provides as follows:
                        § 6323. Reports by courts
                        Subject to any inconsistent procedures and standards
                relating to reports and transmission of funds prescribed pursuant to
                Title 42 (relating to judiciary and judicial procedure):
                (1) The following shall apply:
                             (i) The clerk of any court of this Commonwealth,
                within ten days after final judgment of conviction or acquittal or
                other disposition of charges under any of the provisions of this title
                or under section 13 of the act of April 14, 1972 (P.L. 233, No. 64),
                known as The Controlled Substance, Drug, Device and Cosmetic
                Act, including an adjudication of delinquency or the granting of a
                consent decree, 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).
    2
      Due to his failure to file a brief within the prescribed time period, this Court precluded
Licensee from filing a brief in this matter.



                                                  2
Section 3802 of the Code on March 1, 2004.3 Licensee’s pro se statutory appeal
followed.4
               At the February 2015 de novo hearing before common pleas, counsel
for the Department acknowledged the statewide issue regarding the York County
Clerk of Court’s untimely report of convictions to the Department and expressed
sympathy with Licensee’s position. Counsel nonetheless argued that, because the
ten-year delay was not attributable to the Department, the court should uphold
Licensee’s suspension in accordance with established case law.5 In response,
Licensee raised a statute of limitations defense and represented to the court that,
regardless of the locus of fault, he would be prejudiced by the suspension.
Specifically, Licensee stated: “My life is completely different from what it was ten
years ago. Maybe losing my license then wouldn’t have really mattered much, but


    3
       As the Department acknowledges in its brief, its notice incorrectly referenced May 14,
2014, as the date of conviction and not May 14, 2004. February 3, 2015, Hearing,
Commonwealth Exhibit No. C-1; Reproduced Record (R.R.) at 25a. Licensee, who appeared pro
se before common pleas at the de novo hearing, did not object to the admission of the
Department’s exhibit. There is no dispute, however, that the conviction occurred in May 2004
and, indeed, the exhibit also includes a report from the Clerk of Courts reflecting a 2004
conviction date and the Department’s October 2014 receipt of that report. Id. at 27a.
     4
       Pursuant to Section 1550(b)(1)(i) of the Code, 75 Pa. C.S. § 1550(b)(1)(i), the Department
afforded Licensee the automatic supersedeas that, with few exceptions, accompanies a statutory
appeal. February 3, 2015, Hearing, Commonwealth Exhibit No. C-1; R.R. at 34a.
     5
       In Terraciano v. Department of Transportation, Bureau of Driver Licensing, 753 A.2d
233, 236 (Pa. 2000), the Court held that, in order to sustain an appeal of a license suspension
based on delay, a licensee must establish that: (1) an unreasonable delay chargeable to the
Department led the licensee to believe that his operating privilege would not be impaired; and (2)
prejudice would result in having the licensee’s operating privilege suspended after that delay.
Once a licensee raises the delay defense, the Department must then establish that the delay was
caused by something other than administrative inaction. Grover v. Dep’t of Transp., Bureau of
Driver Licensing, 734 A.2d 941, 943 (Pa. Cmwlth. 1999). As a general rule, if the Department
satisfies this burden, then the licensee’s appeal should be dismissed. Id. If it does not meet this
burden, then the burden shifts to the licensee to establish prejudice. Id.



                                                3
now it’s pretty important. And that’s why I’m here.” February 3, 2015, Hearing,
Notes of Testimony (N.T.) at 4; Reproduced Record (R.R.) at 14a.
              In sustaining Licensee’s appeal, common pleas determined that it was
unreasonable for the Department to have persisted in relying on York County’s
flawed system and to have applied suspensions without regard to the passage of
time or prejudice to the licensees, when it “was well aware of the break down [sic]
in the system of waiting for the York County Clerk of Courts to supply convictions
to the Department.” April 28, 2015, Opinion of Common Pleas at 3. Common
pleas, therefore, determined that the ten-year delay in imposing the suspension was
attributable to the Department. Moreover, taking into consideration the fact that
Licensee had maintained a clean driving record for over eight years, thereby
demonstrating that he had dramatically improved his behavior, the court credited
his testimony that he would be prejudiced by the loss of his license over ten years
after the conviction at issue. Employing slightly different reasoning and based on
our holding in Gingrich, we agree that the untimely suspension was not warranted.6
              In Gingrich, the Department there, as here, attempted to impose a
license suspension upon its receipt of a ten-year-old conviction from the York
County Clerk of Courts. Although it found the Clerk’s delay truly unconscionable,
the court of common pleas of the county in which the licensee filed her appeal
nonetheless reinstated the license suspension in accordance with the well-
established general rule requiring the dismissal of a license suspension appeal
when the delay cannot be attributed to the Department. We reversed, emphasizing


    6
      This Court may affirm common pleas on different grounds where its result is correct and
the basis on which we affirm is clear from the record. Rabenold v. Zoning Hearing Bd., 777
A.2d 1257, 1263 n.7 (Pa. Cmwlth. 2001).



                                             4
the ongoing applicability of the aforementioned general rule but recognizing an
extraordinary circumstances exception thereto. Specifically, we concluded that the
record demonstrated the requisite extraordinary circumstances for invalidating an
operating privilege suspension that had “lost the underlying public safety purpose
and now simply [was] a punitive measure sought to be imposed too long after the
fact.” Gingrich, ___ A.3d at ___, slip op. at 12. In support of this exception, we
cited the ten-year gap between the conviction at issue and the suspension, the
absence of additional driving-related issues since Gingrich’s last conviction and
her credible testimony regarding the prejudice she would suffer if the Department
implemented the suspension. Accordingly, we determined that the presence of
extraordinary circumstances merited Gingrich’s requested relief.
             In the present case, we likewise conclude that the invalidation of the
suspension is warranted, albeit on slightly different grounds than those on which
common pleas relied. Contrary to common pleas’ determination, it is clear that the
ten-year delay was attributable to the York County Clerk of Courts. As the record
reflects, the Clerk electronically transmitted a certified record of Licensee’s May
2004 conviction to the Department in October 2014, and the Department’s Bureau
of Driver Licensing timely sent Licensee a suspension notice in November 2014.
To this extent, the present case is analogous to Gingrich in that it, too, satisfies the
extraordinary circumstances exception to the general rule that only delays
attributable to the Department be vacated. As in Gingrich, the Clerk in the instant
case did not report the conviction at issue for an extraordinarily extended period of
time, the licensee’s driving record was devoid of further violations for a significant
number of years preceding the report, and the licensee was able to demonstrate




                                           5
prejudice.7      Therefore, regardless of attribution of delay, common pleas’
invalidation of the license suspension was proper.
               Accordingly, we affirm.8




                                              _____________________________________
                                              BONNIE BRIGANCE LEADBETTER,
                                              Senior Judge




    7
       We reject the Department’s argument that Licensee failed to establish prejudice. Common
pleas found credible his testimony that his life is now completely different than in May 2004,
that his license is important to him and that losing it would matter more now than it would have
mattered ten years ago. In support of its credibility finding, common pleas further noted that
Licensee did not have any driving infractions after 2007. Thus, contrary to the Department’s
contention, the fact that Licensee did not testify with more specificity regarding detrimental
reliance on the delay is of no moment.
     8
       In concluding that Gingrich controls the present case, we echo our observation therein that
we are not creating a bright-line rule regarding the requisite number of years that will trigger
sufficient prejudice for sustaining a licensee’s statutory appeal due to delay. Id. at ___, slip op.
at 13 n.7. In addition, we reiterate that the specific circumstances of each case must be
considered and that such relief is limited to extraordinary circumstances.



                                                 6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kristoffer Orwig                        :
                                        :
                   v.                   :   No. 286 C.D. 2015
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER


            AND NOW, this 3rd day of June, 2016, the order of the Court of
Common Pleas of Lycoming County is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
