               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vincent Gifford                                   :
                                                  :
                         v.                       :    No. 386 C.D. 2017
                                                  :    Submitted: August 25, 2017
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
Bureau of Driver Licensing,                       :
                         Appellant                :



BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION BY
JUDGE COHN JUBELIRER                                  FILED: October 24, 2017


       The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (PennDOT) appeals an Order of the Court of Common Pleas of
Delaware County (trial court) that sustained the statutory appeal of Vincent Gifford
(Licensee) from a one-year suspension of his operating privilege imposed by
PennDOT pursuant to Section 3733 of the Vehicle Code (Code), 75 Pa. C.S. § 3733.1
Because the trial court did not err in holding that Licensee meets the extraordinary


       1
           This offense is defined to include:

                 Any driver of a motor vehicle who willfully fails or refuses to bring his
                 vehicle to a stop, or who otherwise flees or attempts to elude a pursuing
                 police officer, when given a visual and audible signal to bring the vehicle
                 to a stop, commits an offense as graded in subsection (a.2).

75 Pa. C.S. § 3733(a).
circumstances exception set forth in Gingrich v. Department of Transportation,
Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016), we affirm.
      The facts are straightforward and not in dispute. On June 6, 2013, Licensee
violated Section 3733 of the Code, relating to fleeing or attempting to elude a police
officer. On January 10, 2014, Licensee was convicted of this crime by the trial court.
On August 8, 2016, the Delaware County Office of Judicial Support (OJS) notified
PennDOT of Licensee’s January 10, 2014 conviction. PennDOT mailed a Notice of
Suspension, pursuant to Section 1532(b) of the Code, 75 Pa. C.S. § 1532(b),2 to

      2
          Section 1532(b) of the Code provides that:

      Suspension.--
      (1) The department shall suspend the operating privilege of any driver for six
      months upon receiving a certified record of the driver’s conviction of or an
      adjudication of delinquency based on any offense under the following provisions:
           Section 3367 (relating to racing on highways).
           Section 3714(b) (relating to careless driving).
           Section 3734 (relating to driving without lights to avoid identification or
           arrest).
           Section 3736 (relating to reckless driving).
           Section 3743 (relating to accidents involving damage to attended vehicle or
           property).
      (2) The department shall suspend the operating privilege of any driver for six
      months upon receiving a certified record of the driver’s conviction of a subsequent
      offense under section 1501(a) (relating to drivers required to be licensed) if the
      prior offense occurred within five years of the violation date of the subsequent
      offense.
      (3) The department shall suspend the operating privilege of any driver for 12
      months upon receiving a certified record of the driver’s conviction of section 3733
      (relating to fleeing or attempting to elude police officer) or a substantially similar
      offense reported to the department under Article III of section 1581 (relating to
      Driver’s License Compact[, 75 Pa. C.S. § 1581]), or an adjudication of delinquency
      based on section 3733. The department shall suspend the operating privilege of
      any driver for six months upon receiving a certified record of a consent decree
      granted under 42 Pa. C.S. Ch. 63 (relating to juvenile matters) based on section
      3733.



                                                2
Licensee on August 16, 2016. The Notice of Suspension stated that Licensee’s
operating privilege was suspended for a period of one year effective on September
20, 2016. Licensee timely filed a License Suspension Appeal in the trial court on
September 1, 2016.
       On November 15, 2016, the trial court held a de novo hearing on Licensee’s
appeal, at which PennDOT presented Licensee’s Certified Driving Record, and
Licensee was given an opportunity to testify. At this hearing, Licensee did not
dispute the January 10, 2014 conviction but testified that he had reformed in the
nearly two-year and seven-month period since the conviction. Since the June 6,
2013 violation, Licensee has not had any further violations or convictions. Licensee
stated that he is currently employed at 3J’s, a tire business located in Swarthmore,
Pennsylvania, where he delivers tires six days a week throughout Pennsylvania.
Licensee explained that 90% of his workday involves driving and that he began his
employment at 3J’s in approximately early- to mid-2015. Licensee further testified
that since being hired at 3J’s, he has looked for supplemental work but has been
unable to attain an additional job because of his felony conviction from January 10,
2014. Additionally, Licensee stated that no positions are available at his current job




       (4) The department shall suspend the operating privilege of any driver for three
       months upon receiving a certified record of the driver’s conviction of section 1371
       (relating to operation following suspension of registration) or 3718 (relating to
       minor prohibited from operating with any alcohol in system) or an adjudication of
       delinquency based on section 1371.
       (5) The department shall suspend the operating privilege of any driver for three
       months upon receiving a certified record of the driver’s conviction of or an
       adjudication of delinquency based on section 3714(c).

75 Pa. C.S. § 1532(b).



                                               3
that would not require him to possess a driver’s license. Licensee indicated that he
is not confident that he could find another job if he lost his current job at 3J’s.
      Licensee resides with his parents, his girlfriend, and his three-year-old
daughter. Licensee pays rent and various bills and testified that, even though his
girlfriend is employed, his family could not afford to live only on his girlfriend’s
income. Additionally, Licensee’s daughter was born with a seizure condition
requiring frequent, unplanned emergency trips to the hospital.3 Further, Licensee
testified that he is the only one who drops his daughter off at day care and that he
may be the only one available to drive when she needs to go to the hospital because
of her condition.
      On March 8, 2017, the trial court sustained the appeal and reinstated
Licensee’s operating privilege. The trial court reasoned that although the traditional
rule is that delays attributable to non-PennDOT entities are insufficient to invalidate
a license suspension, a limited exception to this rule was set forth in Gingrich that
allows a trial court to consider delays attributable to non-PennDOT entities in certain
circumstances. (Trial Ct. Op. at 4–5.) In its opinion, the trial court found that the
circumstances of this case were analogous to the facts in Gingrich. (Id. at 6.)
PennDOT contended that Gingrich was inapplicable because the delay at issue in
this case is substantially less than the delay in Gingrich. The trial court rejected this
argument by distinguishing the precedent relied upon by PennDOT and finding
guidance in Section 6323(1)(i) of the Code, 75 Pa. C.S. § 6323(1)(i),4 which directs

      3
         Licensee’s daughter was born approximately one month following his January 2014
conviction.
       4
         Section 6323(1)(i) of the Code provides that:

      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



                                                4
OJS to report convictions to PennDOT “within ten days after final judgment of
conviction.” (Id. at 9.) The trial court further concluded that the suspension had lost
its public protection rationale and is instead being instituted as an additional punitive
measure. (Id. at 10.) PennDOT timely appeals.5
       On appeal, PennDOT argues that the trial court erred in sustaining Licensee’s
appeal and ordering the reinstatement of Licensee’s operating privilege. PennDOT
asserts that the trial court erred because, under the traditional rule, a license
suspension generally may only be invalidated on the basis of delay when PennDOT
is responsible for an unreasonable delay and a licensee would suffer prejudice as a
result of having his or her operating privilege suspended. To the extent that Gingrich
created an exception to this traditional rule, PennDOT argues that Gingrich does not
apply to these circumstances. Specifically, PennDOT asserts that Gingrich is
inapplicable because the two-year, seven-month delay here does not amount to an
“extraordinarily extended period of time.” (PennDOT Br. at 19.)
       Generally, for a licensee to challenge a license suspension based on delay, the
licensee must prove that: “‘(1) an unreasonable delay chargeable to PennDOT led
the licensee to believe that [his] operating privileges would not be impaired; and (2)
prejudice would result by having the operating privileges suspended after such
delay.’” Dep’t of Transp., Bureau of Driver Licensing v. Gombocz, 909 A.2d 798,

       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).
       5
         Our review is limited to determining whether the trial court’s findings were supported by
competent evidence, whether errors of law were committed, or whether the trial court’s
determination constituted an abuse of discretion. Reinhart v. Dep’t of Transp., Bureau of Driver
Licensing, 954 A.2d 761, 765 n.3 (Pa. Cmwlth. 2008).


                                                5
800-01 (Pa. 2006) (alteration in original) (quoting Terraciano v. Dep’t of Transp.,
Bureau of Driver Licensing, 753 A.2d 233, 236 (Pa. 2000)). Historically, this Court
has only considered the delay that is attributable to PennDOT in determining
whether a suspension may be invalidated on the basis of delay. See, e.g., Dep’t of
Transp., Bureau of Driver Licensing v. Green, 546 A.2d 767, 769 (Pa. Cmwlth.
1988). In Green, we explained the rationale for the traditional rule:

       If [PennDOT] too often failed to meet the responsibility thus focused
       upon it, the locus of fault would be clear and executive and legislative
       remedies could be directed at [PennDOT]. But a very different
       situation would prevail if the effectiveness of the Vehicle Code
       sanctions became dependent on scores of court clerks and hundreds of
       functionaries within the minor judiciary.

Id. However, recently, this Court recognized “limited extraordinary circumstances”
where a licensee may rely on the delay attributable to entities other than PennDOT
by showing that: (1) the “conviction is not reported for an extraordinarily extended
period of time”; (2) “the licensee has a lack of further violations for a significant
number of years before the report is finally sent”; and (3) the licensee is prejudiced
by the delay. Gingrich, 134 A.3d at 534. The Court concluded that this narrow
exception is applicable “where the suspension loses its public protection rationale
and simply becomes an additional punitive measure resulting from the conviction,
but imposed long after the fact.” Id. at 534.
       PennDOT seeks the application of the traditional, non-Gingrich rule here. In
the present case, there is no dispute that PennDOT acted promptly6 once it received
Licensee’s notice of conviction from the OJS. Thus, even though the trial court
found prejudice under the traditional rule, Licensee would not be entitled to relief.

       6
           PennDOT acted within eight days of receiving the appropriate documentation from the
OJS.


                                               6
Therefore, in order to obtain the desired relief, Licensee must demonstrate that he
meets the three factors of the Gingrich standard.
       No dispute exists as to whether the second and third factors of the Gingrich
standard are met in this case. Licensee’s Certified Driving Record reveals no
additional violations since his January 10, 2014 conviction. Moreover, the trial court
found that, based on Licensee’s credited testimony, Licensee would be prejudiced
by the delay because without his license, he runs the risk of losing his job and source
of income to provide for his family, which would be difficult to replace because of
his felony conviction, and also would be unable to provide transportation for his
daughter’s frequent and, at times, emergency, medical treatments. PennDOT does
not challenge this finding of prejudice, and prior case law supports the notion that
losing a job that requires a driver’s license constitutes prejudice.7 See Orloff v. Dep’t
of Transp., Bureau of Driver Licensing, 912 A.2d 918, 924 (Pa. Cmwlth. 2006).
       In addition, Licensee is able to demonstrate further prejudice because of his
familial obligations, particularly those requiring the use of his license to ensure his
daughter is transported to her necessary and unplanned emergency medical
treatments and, if required, to the hospital. For these reasons, the evidence in the
record supports the finding that Licensee would be prejudiced from the delay in
suspending his license.
       The only dispute for the Court to resolve is whether the trial court could find
that the nearly two-year, seven-month delay attributable, not to PennDOT, but to the
OJS, constitutes an “extraordinarily extended period of time.” Gingrich, 134 A.3d
at 534. In Gingrich, the Court did not establish a bright line test for meeting this
factor but instead left it for the trial courts to determine on a case-by-case basis. Id.

       7
         Here, this finding is arguably exacerbated because of Licensee’s difficulty in obtaining
another job due to his felony conviction.


                                               7
at 535 n.7. Since Gingrich, we have affirmed trial court determinations where a
delay attributable to non-PennDOT entities, ranging from 7 years and 10 months to
10 years, was found to constitute an “extraordinarily extended period of time.” See,
e.g., Eckenrode v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No.
168 C.D. 2015, filed July 14, 2016), slip op. at 6 (9 years);8 Capizzi v. Dep’t of
Transp., Bureau of Driver Licensing, 141 A.3d 635, 643 (Pa. Cmwlth. 2016) (7
years, 10 months); Orwig v. Dep’t of Transp., Bureau of Driver Licensing (Pa.
Cmwlth., No. 286 C.D. 2015, filed June 3, 2016), slip op. at 5-6 (10 years); Gingrich,
134 A.3d at 535 (10 years). In addition, the Court has previously held that the trial
court erred in not denying a licensee’s appeal where the delay was roughly five
months, “which, while not ideal, was certainly not an ‘extraordinarily extended
period of time.’” Nercesian v. Dep’t of Transp., Bureau of Driver Licensing (Pa.
Cmwlth., No. 1795 C.D. 2016, filed June 12, 2017), slip op. at 9. The delay in this
case of approximately two years and seven months falls in between time frames that,
post-Gingrich, have been viewed as not an “extraordinarily extended period of time”
and those that were.9
       Moreover, under Section 6323(1)(i) of the Code, 75 Pa. C.S. § 6323(1)(i), the
OJS is directed to send a record of the judgment of conviction to PennDOT “within
ten days after a final judgment of conviction.” Although this provision is directory,
and not mandatory, it is meant to be followed as closely as a mandatory provision


       8
           Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported opinion filed after January 15, 2008, may be cited for its persuasive
value, but not as binding precedent.
         9
           While, in dicta, we have questioned whether a three-year delay caused by a non-PennDOT
entity would constitute an “extraordinarily extended period of time,” we did not further address
this issue because the licensee was found to have not been prejudiced by the delay. Currie v. Dep’t
of Transp., Bureau of Driver Licensing, 142 A.3d 186, 189 n.4 (Pa. Cmwlth. 2016).


                                                8
with the only difference being that the effect of non-compliance does not render the
proceedings illegal and void. Gingrich, 134 A.3d at 533.
      We examine Gingrich and the cases that followed for guidance on the
application of Gingrich’s three factors. In Gingrich, the delay at issue was nearly
ten years, and there was significant prejudice because, during that time period, the
licensee married, obtained higher education degrees, got a new job that required her
to drive, and had a child who attended a school that required the licensee to drive.
Gingrich, 134 A.3d at 535. Because of the prejudice involved and the long delay,
the Court gave less weight to the licensee’s subsequent driving violation and
suspension and concluded that the license suspension should be reversed. Id. The
three Gingrich factors were also balanced in Capizzi, where the delay was long (7
years and 10 months), no further violations were committed by the licensee, and at
least some prejudice was shown by the licensee in that he could possibly lose his
current job as a valet that required his license. Capizzi, 141 A.3d at 643. Although
the Court in Capizzi found that the prejudice involved and the length of the delay
were not as significant as in Gingrich, given the absence of additional violations
combined with what delay and prejudice there was, we held that the trial court could
find that the Gingrich exception was met. Id.
      The Gingrich factors were also recently balanced in Currie v. Department of
Transportation, Bureau of Driver Licensing, 142 A.3d 186, 187 (Pa. Cmwlth. 2016),
where the delay caused by a non-PennDOT entity was nearly three years. However,
in Currie, the licensee was unable to demonstrate any prejudice because for all but
three months of the three-year delay, licensee’s license was suspended due to a
different violation; therefore, we held that the Gingrich exception was not met. Id.
at 189-90.



                                         9
      Based on this Court’s precedent, the Gingrich factors may be weighed
differently by the trial court, based on the circumstances of each case, in examining
whether the suspension loses its public protection rationale and becomes merely an
additional punitive measure. Thus, the length of the delay may be evaluated in the
context of the degree of prejudice. Here, the prejudice shown by Licensee is
significant and, in the absence of any additional violations, the trial court could find
the length of the delay necessary to constitute an “extraordinarily extended period
of time” to be shorter than in a different case.
      For these reasons, under the circumstances here, the trial court did not err or
abuse its discretion when, based on the credited evidence presented in this matter, it
held that the Gingrich exception was met in this case. As stated in Gingrich, this
Court does not establish a bright line test for what constitutes an “extraordinarily
extended period of time,” but instead, it is for the trial courts to determine on a case-
by-case basis. Gingrich, 134 A.3d at 535 n.7. Thus, we affirm the trial court’s
determination that two years and seven months can be an “extraordinarily extended
period of time” when considered with the other Gingrich factors, the prejudice
shown by the licensee, and the absence or presence of subsequent violations. We
continue to emphasize that the Gingrich exception applies only in limited
extraordinary circumstances and that the general rule remains that only delays
attributable to PennDOT may be grounds for vacating a license suspension based on
delay. Because we find the trial court did not err, we will affirm the trial court’s
March 8, 2017 Order.




                                         _____________________________________



                                           10
RENÉE COHN JUBELIRER, Judge




 11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vincent Gifford                         :
                                        :
                  v.                    :   No. 386 C.D. 2017
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER


      NOW, October 24, 2017, the March 8, 2017 Order of the Court of Common
Pleas of Delaware County is AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
