        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pasquale Leo Capizzi                           :
                                               :
                      v.                       :   No. 315 C.D. 2015
                                               :   Submitted: April 29, 2016
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing,                    :
                         Appellant             :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION BY
JUDGE COHN JUBELIRER                               FILED: June 23, 2016


      The Pennsylvania Department of Transportation, Bureau of Driver Licensing
(Department), appeals from the February 12, 2015 Order of the Court of Common
Pleas of Allegheny County (common pleas) that sustained Pasquale Leo Capizzi’s
(Capizzi) statutory appeal of a six-month suspension of his operating privilege
pursuant to Section 1532(c)(1)(i) of the Vehicle Code (Code), 75 Pa. C.S. §
1532(c)(1)(i),1 imposed by the Department on November 24, 2014. Capizzi was

             1
                 § 1532. Suspension of operating privilege.

                                               ***

             (c) Suspension.--

      The department shall suspend the operating privilege of any person upon
      receiving a certified record of the person’s conviction of any offense involving the
                                                                                (Continued…)
convicted on January 26, 2007 of violating Section 13(a)(12) of the Controlled
Substance, Drug, Device and Cosmetic Act (Drug Act), 35 P.S. § 780-113(a)(12),2
by the Court of Common Pleas of Beaver County. However, the Beaver County
Clerk of Courts did not certify the conviction and transmit it to the Department
until November 14, 2014. The Department mailed notice of his suspension to
Capizzi on November 24, 2014, seven years and ten months after the conviction
giving rise to the operating privilege suspension.              Consistent with our recent
decision in Gingrich v. Department of Transp., Bureau of Driver Licensing, 134
A.3d 528 (Pa. Cmwlth. 2016), the extraordinary delay in reporting Capizzi’s 2007


      possession, sale, delivery, offering for sale, holding for sale or giving away of any
      controlled substance under the laws of the United States . . . .

          (1) The period of suspension shall be as follows:

           (i) For a first offense, a period of six months from the date of the
      suspension.

                                                ****

Id.
      2
       Act of April 14, 1972, P.L. 233, § 13.
      Prohibited acts; penalties.

      (a) The following acts and the causing thereof within the Commonwealth are
      hereby prohibited:

                                                ***

      (12) The acquisition or obtaining of possession of a controlled substance by
      misrepresentation, fraud, forgery, deception or subterfuge.

                                                ****

Id.

                                                2
conviction that resulted in a gap of nearly eight years between his conviction and
2014 suspension, combined with his lack of additional convictions and his showing
of prejudice, has created a circumstance where the 2014 suspension has lost the
underlying public safety purpose and now simply is a punitive measure sought to
be imposed too long after the fact. For these reasons, we affirm the well-reasoned
decision of common pleas.3
        The facts are straightforward. Capizzi was convicted of violating Section
13(a)(12) of the Drug Act (relating to acquisition or obtaining of possession of a
controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge)
on January 26, 2007. (R.R. at 5a.) Following receipt of the certification of
conviction, the Department informed Capizzi by official notice with a “Mail Date”
of November 24, 2014, that his operating privilege was being suspended for a
period of six months effective December 29, 2014, as a consequence of his
conviction. (R.R. at 8a-11a.) Capizzi filed a timely appeal of this suspension in
common pleas on December 3, 2014.
        Common pleas held a hearing on February 12, 2015. The Department
offered into evidence a package of certified documents (R.R.14a-15a).           The
package includes the certification of Capizzi’s 2007 conviction showing that it was
electronically transmitted to the Department on November 14, 2014, and Capizzi’s
certified driving history. (R.R. at 48a-53a.) The Department then rested. (R.R. at
15a).
        Capizzi took the stand and agreed that “the information contained in that
notice [of suspension] citing when the offense occurred, the actual offense and the

        3
        The Honorable Robert C. Gallo, Senior Judge of the Court of Common Pleas of
Allegheny County, presided over Capizzi’s hearing and authored the opinion.

                                         3
conviction date” was accurate. (R.R. at 21a). He testified that he believed his
sentence for the Drug Act conviction “was two years of house arrest, three years of
probation consecutive, to follow.” (R.R. at 21a.) Capizzi also testified that he had
satisfied the penalty imposed by the criminal court in “September 2009, which
would have been two years after [his] sentence was imposed.” (R.R. at 22a.)
      In response to a question from his counsel as to whether he was aware that
his operating privilege could be suspended for his 2007 Drug Act conviction,
Capizzi responded that “[o]n the date of trial my attorney notified me it would be
possible, it could happen within six months to a year.” (R.R. at 22a.) He testified
further that when he did not receive a notice of suspension he thought “the
suspension was never going to happen.” (R.R. at 23a).
      As to his current employment, Capizzi testified that he became a “[l]ot
manager for PPG Parking” in July, 2009. (R.R. at 24a.) He testified that he is
required to “valet cars, the lots, take keys, I’m in charge of snow plow removal,
salting, lot maintenance and basically take care of the fleet.” (Id.) Capizzi testified
that he probably would not have taken this job if he had known that he was going
to lose his driver’s license, and that he cannot perform his duties without a driver’s
license. (Id.)
      The Department’s counsel agreed that Capizzi had established prejudice due
to the delay in imposing the suspension. (R.R. at 27a.) Capizzi’s counsel agreed
that the Department had acted in a timely fashion once it received the report of
Capizzi’s conviction. (Id.) Common pleas took the matter under advisement and
entered its Order sustaining Capizzi’s appeal on February 12, 2015.
       The Department appealed and common pleas directed the filing of a
Concise Statement of Errors Complained of on Appeal (Statement) pursuant to


                                          4
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
1925(b).4 Relevant to this appeal, the Department alleged in its Statement that
common pleas erred when it concluded that the prejudice sustained by Capizzi as a
result of the seven year, ten month delay by the Beaver County Clerk of Courts in
reporting Capizzi’s January 26, 2007 conviction to the Department warranted
vacating the six month operating privilege suspension. (R.R. at 66a-67a.)
      Common pleas issued its Opinion in support of the February 12, 2015 Order
on April 27, 2015, and described the “sole issue” before it as “whether [Capizzi]
should be subject to a license suspension arising out of his January 26, 2007
conviction after a 7 year and 10 month delay, attributable to the judicial system
rather than the Department, which resulted in prejudice to [Capizzi].” (R.R. at
79a.) Common pleas noted that “there was no evidence produced regarding any
reason for the delay by the Clerk of Courts in transmitting the record to the
Department” and that the Department “acted promptly upon receipt of the
transmission.” (Id.)
      As to Capizzi, common pleas summarized the evidence at hearing as
follows:

      4
          Pa.R.A.P. 1925(b) provides as follows:

      Rule 1925. Opinion in Support of Order.
                                                ***
            (b) 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”).

Id.

                                               5
             [Capizzi] testified that his attorney at the time of his trial in
      2007 had advised him that if the Department was going to suspend his
      license, it would occur within six months to a year. (Hearing
      Transcript, 2/12/15, hereinafter “Tr.[”]), p.10). [Capizzi’s] penalty
      was satisfied on September 21, 2009, and a motion to destroy the
      evidence was granted on May 26, 2010.

            In July, 2009, approximately two and a half years following his
      conviction and shortly before completion of his probation, [Capizzi]
      obtained new employment where he remains presently employed as a
      lot manager for PPG Parking. (T[r].11-12). His job requires him to
      drive because he moves cars for valet parking and oversees snow
      removal, salting, lot maintenance and takes care of a fleet of vehicles.
      (Tr. 12). He testified that he would not have taken this job if he had
      known his license would later be suspended and he cannot perform his
      job without a driver’s license. (Tr. 12-13).

(R.R. at 79a.)

      Common pleas then noted that it was “fully aware of the long line of cases
holding that in order to sustain an appeal on the basis of unreasonable delay, the
delay must be chargeable to the Department and the licensee must demonstrate
prejudice resulting to the licensee by reinstating the delayed suspension” and that
“[w]hen responsibility lies within the court system, no relief is granted to the
licensee.” (R.R. at 80a.) In comparing those decisions to the facts of this case,
common pleas noted further that “[i]n each of [those] cases, however, the delay
caused by the judicial system was significantly shorter than the delay in [Capizzi’s
case]” and that “[n]one were as egregious as the delay at issue here.” (Id.) Finally,
as to Capizzi, common pleas held that “[h]ere, the delay caused by the Clerk of
Courts clearly resulted in prejudice to [Capizzi]” finding that “[Capizzi] secured
employment as lot manager two years after his conviction when he reasonably
believed that his license was not subject to suspension.” (Id.)
      Based upon this rationale, common pleas concluded that:

                                          6
              The duty of the clerk of courts to timely report convictions for
       violations of The Drug Act is addressed in the Motor Vehicle Code,
       75 Pa.[]C.S.[] [§] 6323, which provides that the clerk of any court of
       this Commonwealth, shall send to the [D]epartment a record of the
       judgment of conviction of charges under Section 13 of the Drug Act
       within ten days after final judgment of conviction. 75 Pa.[]C.S.[] [§]
       6323(1)(i).

              Compliance with the statutory provision promotes, the orderly
       administration of appropriate and timely license suspensions. The
       within situation is so far removed from the terms of the statute and its
       goal, that further discussion of the statute is unnecessary.

              To sustain this particular license suspension where the delay
       was not caused by the Department but by the office of the clerk of
       courts but would result in prejudice to [Capizzi] would be an unfair
       and unreasonable result in this case. Moreover, it does not further the
       goal of the Pennsylvania Motor Vehicle Code to maintain safety on
       public roads, when the suspension will take place almost eight years
       after [Capizzi’s] conviction. Such a decision tends to undermine the
       public’s confidence and trust in the judicial system and frustrate the
       reasonable expectations of the public that the courts treat defendants
       in a timely, fair and consistent manner.

(R.R. at 80a-81a.)
       On appeal,5 the Department argues that it is not responsible for any delay in
providing notice of a conviction caused by another entity. It notes that here the
Beaver County Clerk of Courts was responsible for notifying the Department of
Capizzi’s Drug Act conviction in a timely manner in accordance with 75 Pa. C.S.
§6323. The Department further notes that it exercises no control over the clerks of



       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
determinations demonstrated a manifest abuse of discretion. Dep’t of Transp., Bureau of Traffic
Safety v. O'Connell, 555 A.2d 873, 875 (Pa. 1989).

                                               7
courts and could not do so without violating the separation of powers doctrine.
Common pleas, therefore, was not able to forgive Capizzi’s suspension.6
       The Department points out that the case law provides that a licensee seeking
to avoid an otherwise valid and mandatory operating privilege suspension on the
basis of delay has a two-part burden of proof: (1) that an unreasonable delay
chargeable to the Department led licensee into reasonably believing that his or her
operating privilege would not be impaired; and (2) that prejudice to licensee would
result from having the operating privilege suspended after such a delay. Dep’t of
Transp., Bureau of Driver Licensing v. Gombocz, 909 A.2d 798, 800-801 (Pa.
2006). When challenged, the Department bears the burden of proof as to when it
received the report of the conviction leading to the imposition of a suspension.
Grover v. Dep’t of Transp., Bureau of Driver Licensing, 734 A.2d 941, 943 (Pa.
Cmwlth. 1999).
       There is no dispute that the Department acted promptly in this matter when it
mailed Capizzi’s notice of the suspension of his driving privilege within ten days
of receipt from the Beaver County Clerk of Courts. There also is no question that
Capizzi suffered prejudice from the extraordinary delay. The question therefore is
whether the seven-year and ten-month delay by the Beaver County Clerk of Courts
provides a basis to overturn the Department’s suspension of Capizzi’s operating
privilege where the Department acted in accord with its statutory mandate.

       6
          Capizzi did not file a brief as appellee in this Court, notwithstanding our August 24,
2015 Order directing that he file and serve his brief within 14 days. By Order dated September
25, 2015, this Court precluded Capizzi from filing a brief or participating in oral argument and
directed that this matter be submitted on the Department’s brief only without argument unless
otherwise ordered. Capizzi’s decision to not file a brief as appellee is not necessarily fatal to his
appeal. See, e.g., Clark v. Dep’t of Transp., Bureau of Driver Licensing, 62 A.3d 1059, 1060
(Pa. Cmwlth. 2013).

                                                 8
      Until recently, this Court has adhered to a line of decisions holding that the
Department cannot be held accountable for delays caused by the clerks of courts
regardless of the length of time involved. See, e.g. Gombocz, 909 A.2d at 800-
801; Terraciano v. Dep’t of Transp., Bureau of Driver Licensing, 753 A.2d 233,
236 (Pa. 2000); Dep’t of Transp., Bureau of Driver Licensing v. Green, 546 A.2d
767, 768-69 (Pa. Cmwlth. 1988), aff’d per curiam, 569 A.2d 350 (Pa. 1990).
However, in Gingrich, we held that under specific circumstances, such as those
present in that case, it may be appropriate for common pleas to grant relief in an
appeal from a suspension resulting from a conviction for driving under the
influence (DUI).
      That Gingrich’s suspension was the result of a DUI conviction and
Capizzi’s stemmed from a Drug Act conviction does not alter the result here. In
both instances the Department is required to suspend the operating privilege of the
person convicted upon receipt of notice of the conviction. A lengthy delay in
reporting a conviction may result in prejudice and create a circumstance where the
resulting suspension has lost the underlying public safety purpose and now simply
is a punitive measure sought to be imposed too long after the fact, regardless of the
underlying violation.
      The facts in Gingrich were as follows:           On October 24, 2014, the
Department imposed a one-year suspension of Gingrich’s operating privilege as a
consequence of receiving a report transmitted on October 10, 2014, that Gingrich
had been convicted on August 24, 2004, of violating 75 Pa. C.S. §3802(a)(1)
(relating to DUI-general impairment). Gingrich timely appealed to the court of
common pleas. Gingrich, 134 A.3d at 529.



                                         9
      The record before the court showed that Gingrich was arrested for DUI in
York County in May, 2004 and subsequently convicted. Gingrich committed
another DUI violation in Cumberland County in 2006 and again lost her driving
privilege.   She also received a suspension for a chemical test refusal.          The
Department returned her operating privilege on February 16, 2010, subject to the
requirement to install an ignition interlock which Gingrich duly installed. She
renewed her operating privilege on October 25, 2013. Id. at 529-30.
      Gingrich earned an associate’s degree and a bachelor’s degree and was
married in 2012. She testified at her hearing that if she had known that her
operating privilege still was subject to suspension for the 2004 conviction it might
have affected her decision to get married. She also testified that she drives her
five-year old daughter to school, and stated that if she had known a suspension was
still possible, it would have affected the decision about which school her daughter
would attend. Id. at 530. In addition, after her last suspension Gingrich obtained a
job as an inspector for the United States Department of Agriculture that required
her to drive to farms in order to inspect processing plants. She testified that if she
lost her operating privilege she most likely would lose her job. Id.
      Common pleas dismissed Gingrich’s appeal and reinstated the suspension
because the nearly ten-year delay between conviction and suspension was not
attributable to the Department. In its Order and the accompanying Opinion, the
court found that the delay of up to ten years in submitting the conviction report to
the Department was “truly unconscionable.” Id. The court wrote that under the
circumstances presented that this Court “may choose to clarify, if not modify, its
prior holdings to take into consideration what we would perceive to be a patent
denial of due process.” Id. Gingrich appealed to this Court.


                                         10
      Gingrich argued on appeal that common pleas erred by reinstating her
suspension where she showed that she was prejudiced by the nearly ten-year delay
in the imposition of the operating privilege suspension, and that the extraordinary
delay was a denial of due process. Id. The Department did not dispute that
Gingrich was prejudiced by the delay caused by the failure to timely forward the
report of her conviction, but argued that Gingrich did not show that the delay was
attributable to the Department as required by our previous decisions. Id.
      After a lengthy recitation of the prevailing case law, we observed in
Gingrich that “[i]t thus is well established that only delays attributable to the
Department may constitute cause to invalidate a suspension imposed pursuant to
75 Pa. C.S. § 1532(c).” Id. at 534. Specifically as to Gingrich, we then stated:

             As noted above, the requirement that the delay be attributable to
      the Department before it may be actionable lies in the differing
      responsibilities of the judicial and executive branches and serves an
      important public safety purpose, and we emphasize that this remains
      the general rule. That said, however, we have concluded that there
      may be limited extraordinary circumstances 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. Where a conviction is not reported for an extraordinarily
      extended period of time, the licensee has a lack of further violations
      for a significant number of years before the report is finally sent, and
      is able to demonstrate prejudice, it may be appropriate for common
      pleas to grant relief.

             Here, the record shows that Gingrich’s 2004 conviction was not
      reported for nearly ten years. While we will not establish a bright line
      in which a delay becomes extraordinary, we conclude that the delay
      here meets that standard. The record further shows that Gingrich’s
      license was suspended due to her 2006 conviction and subsequently
      reinstated in 2010, that she installed an ignition interlock on her
      vehicle, and that she renewed her license in 2013. Since her last brush
      with the law, Gingrich has earned an associate’s and a bachelor’s
      degree, married, and obtained employment as an inspector with the
                                         11
      United States Department of Agriculture that requires her to drive to
      various farms to perform her inspections. She also has a five-year-old
      daughter whom she drives to school. She testified credibly that the
      additional suspension here at issue, had she known about it over the
      period since her license was reinstated, would have impacted her
      decisions regarding marriage and where her daughter attends school,
      and that if the suspension is not vacated, she likely will lose her job.
      As we noted earlier, the Department does not dispute that Gingrich
      met her burden to show prejudice.

             Based on the record before common pleas, we conclude that the
      extraordinary delay in reporting Gingrich’s 2004 conviction that
      resulted in a gap of ten years between her conviction and 2014
      suspension, combined with her lack of additional issues since her last
      conviction in 2006 and her showing of prejudice, has created a
      circumstance where the 2004 suspension has lost the underlying
      public safety purpose and now simply is a punitive measure sought to
      be imposed too long after the fact. We reiterate that the general rule
      remains that only delays attributable to the Department may be
      vacated. However, where, as here, a licensee is able to demonstrate
      all of the following: a conviction that is not reported for an
      extraordinarily extended period of time[]; the licensee has a lack of
      further issues for an extended period; and prejudice, it may be
      appropriate for common pleas to grant relief. As we find that the
      record demonstrates the limited extraordinary circumstances outlined
      above, we will grant the requested relief.

Id. at 534-35 (footnote omitted). On that basis we reversed common pleas and
ordered the Department to vacate Gingrich’s suspension.
      As in Gingrich, the Department does not dispute that Capizzi met his burden
to show that he was prejudiced by the seven-year and ten-month delay between his
conviction and the report from the Beaver County Clerk of Courts that triggered
the Department’s suspension notice. Capizzi testified that he became a “[l]ot
manager for PPG Parking” in July, 2009. (R.R. at 24a.) He testified that he is
required to “valet cars, the lots, take keys, I’m in charge of snow plow removal,
salting, lot maintenance and basically take care of the fleet.” (Id.) Capizzi testified

                                          12
that he probably would not have taken this job if he had known that he was going
to lose his driver’s license, and that he cannot perform his duties without a driver’s
license. (Id.)
       In addition, Capizzi’s certified driving record is part of the package of
documents admitted into evidence to satisfy the Department’s burden before
common pleas. Our review of that record shows that Capizzi’s operating privilege
was suspended in 2007 for violations unrelated to his Drug Act conviction and was
restored in 2009. (R.R. at 50a-51a.) Since that time there are no entries on his
driving record save the suspension here at issue. (Id.) In sum, Capizzi’s operating
privilege was suspended seven years and ten months after he was convicted of
violating the Drug Act. He satisfied his sentence in 2009 and a motion to destroy
the evidence was granted in 2010. Capizzi in 2009 took a job as a parking lot
manager that requires him to have a operating privilege in order to perform the
functions of the job.     His operating privilege was restored from a previous
suspension in 2009 and there is no indication of any subsequent violations.
      In Gingrich, we declined to establish a bright line as to what constitutes an
extraordinarily extended period of time, but concluded that the nearly ten-year
delay in that matter met the test. We concluded the nearly ten-year delay “has
created a circumstance where the 2004 suspension has lost the underlying public
safety purpose and now simply is a punitive measure sought to be imposed too
long after the fact.” Gingrich, 134 A.3d at 535. After a careful review of the
record in this matter we reach the same conclusion.              Given the specific
circumstances here, we agree with common pleas that suspending Capizzi’s
operating privilege at this point “does not further the goal of the Pennsylvania
Motor Vehicle Code to maintain safety on public roads.” (R.R. at 81a.)


                                         13
      As we did in Gingrich, we emphasize that the general rule remains that only
delays attributable to the Department may be vacated. However, where a licensee
demonstrates that his conviction was not reported for an extraordinarily extended
period of time; he had a clean record for an extended period; and will suffer
prejudice, it may be appropriate for common pleas to grant relief. Because we find
that the record demonstrates these limited extraordinary circumstances, we will
affirm common pleas’ February 12, 2015 Order.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                       14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pasquale Leo Capizzi                   :
                                       :
                  v.                   :   No. 315 C.D. 2015
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                         Appellant     :



                                     ORDER


      NOW, this 23rd day of June, 2016, the February 12, 2015 Order of the
Court of Common Pleas of Allegheny County is AFFIRMED.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
