        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Becky Fritts,                             :
                                          :
             v.                           :   No. 193 C.D. 2017
                                          :   Submitted: November 22, 2017
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing,               :
                         Appellant        :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                          FILED: February 16, 2018

             The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (PennDOT) appeals an order of the Court of Common
Pleas of Clinton County (trial court) that sustained Becky Fritts’ (Licensee) statutory
appeal from a three-month suspension of her operating privileges pursuant to Section
1786(d) of the Vehicle Code, 75 Pa. C.S. §1786(d) (relating to suspension for
operating vehicle without proof of required financial responsibility). The trial court
sustained Licensee’s appeal based on the delay between Licensee’s conviction and
PennDOT’s notice of suspension.         PennDOT asserts the trial court erred in
sustaining Licensee’s appeal where it notified Licensee of the suspension shortly
after the date it received the report of her conviction, and Licensee did not satisfy
her burden of proving she was prejudiced by any delay. As requested by the trial
court, we vacate and remand.
                                    I. Background
             By official notice dated October 24, 2016, PennDOT informed
Licensee her operating privileges were suspended in accordance with Section
1786(d) of the Vehicle Code, 75 Pa. C.S. §1786(d), effective November 28, 2016,
because she failed to produce proof of financial responsibility on August 15, 2012,
the date of her traffic offense. Licensee appealed the suspension to the trial court.
A hearing ensued.


             At the hearing, PennDOT submitted a packet of certified documents,
which consisted of: PennDOT’s official notice of suspension based on Licensee’s
failure to produce proof of financial responsibility; a copy of the traffic citation
Licensee received under Section 1786(f) of the Vehicle Code, 75 Pa. C.S. §1786(f);
a copy of the report of Licensee’s conviction for violating Section 1786(f); and, a
copy of Licensee’s certified driving history. The trial court admitted the certified
packet of documents without objection. PennDOT rested.


             In response, Licensee, who was not represented by counsel, testified
she was pulled over and she was “one day over for the insurance to lapse.”
Reproduced Record (R.R.) at 46a. Licensee testified she paid the fine for the
violation and her attorney and the arresting officer agreed she would not lose her
license. Licensee further testified that “four years later [she] got a letter stating that
[her] license is supposed to be suspended.” R.R.at 47a. Licensee also testified she
is a single mother of four children, ages 18, 11, 6 and 4, and she needs her license in
order to take her children to their appointments and school. R.R. at 48a. She testified
she drives her children to school each day and she is the only licensed driver in her
household.

                                            2
             After PennDOT’s counsel presented brief argument, the trial court
dictated an order from the bench sustaining Licensee’s appeal. The trial court then
entered its written order. PennDOT appealed, and the trial court directed it to file a
concise statement of the errors complained of on appeal, which it did.


             Thereafter, the trial court issued an opinion pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a), in which it explained the issues were whether
the magisterial district judge’s (MDJ) delay in transmitting Licensee’s notice of
conviction to PennDOT was unreasonable and whether Licensee suffered prejudice
as a result of the delay.


             The trial court found no fault with PennDOT. PennDOT received the
report of the conviction on September 28, 2016. In turn, it imposed the suspension
by notice dated October 24, 2016. The trial court deemed PennDOT’s notice timely.


             The trial court stated its difficulty concerned the delay caused by the
MDJ. To that end, the MDJ convicted Licensee on October 19, 2012. However, the
MDJ’s office did not transmit notice of the conviction to PennDOT until September
28, 2016. Thus, the delay in transmitting notice of the conviction was nearly four
years.


             The trial court stated it recognized that, as a general rule, only delays
attributable to PennDOT could be vacated. Nevertheless, it suggested that delays by
the judicial branch be considered when addressing an appeal.




                                          3
               The trial court stated that the nearly four-year delay in transmitting
notice of Licensee’s conviction was an extended period. It further determined
Licensee would suffer prejudice if the suspension was imposed. In particular,
Licensee resides in rural Pennsylvania, and she needs her vehicle to travel to her job
and to care for her minor children.


               Nevertheless, the trial court conceded Licensee received a new
conviction in June 2015 related to driving under the influence (DUI) of controlled
substances. Further, the trial court acknowledged it did not consider this new
conviction in sustaining Licensee’s appeal. As such, the trial court requested that
this Court remand for consideration of Licensee’s June 2015 DUI conviction. This
matter is now before us for disposition.


                                       II. Discussion
                                       A. Contentions
               On appeal,1 PennDOT argues it is not responsible for any delay caused
by another entity in notifying PennDOT of a conviction. As PennDOT notified
Licensee of the suspension only 26 days after the date it received the report of
conviction from the MDJ, PennDOT asserts it was not guilty of any unreasonable
delay.


               PennDOT contends Licensee failed to satisfy her burden of proof that
she was prejudiced by the delay, because she never changed her circumstances in


         Our review is limited to determining whether the trial court’s findings were supported by
         1

substantial evidence, whether errors of law were committed, or whether the trial court’s
determination constituted an abuse of discretion. See Reinhart v. Dep't of Transp., Bureau of
Driver Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008).

                                                4
reliance on a belief that her operating privilege would not be suspended. Also,
PennDOT maintains Licensee was able to serve a one-year suspension for a DUI
conviction during the period between the date of her current conviction and the date
the MDJ notified PennDOT of the conviction. If Licensee could serve a one-year
suspension for DUI, PennDOT argues, she should be able to serve a three-month
suspension for operating her vehicle without insurance.


             PennDOT asserts Licensee’s DUI violation occurred less than two
years after her conviction for operating her vehicle without insurance. Thus, it
contends, Licensee did not satisfy the requirement that she not have another violation
for a significant number of years before the MDJ sent the report of her current
conviction to PennDOT.


             PennDOT further maintains that the MDJ’s delay in notifying
PennDOT of the conviction for driving without insurance was less than four years.
It argues this did not satisfy the requirement that the delay in notifying PennDOT
must be for an “extraordinarily extended period of time.” Appellant’s Br. at 18
(quoting Gingrich v. Dep’t of Transp., Bureau of Driver Licensing, 134 A.3d 528,
534, 535 (Pa. Cmwlth. 2016) (en banc).


             Licensee was precluded from filing a brief for her failure to conform to
an order setting a briefing schedule.


                                        B. Analysis
             Generally, for a licensee to challenge a license suspension on the basis
of delay, she must prove: “(1) an unreasonable delay chargeable to PennDOT led the

                                            5
licensee to believe that [her] 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,
800-01 (Pa. 2006) (citation omitted).


              Historically, this Court only considered the delay 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 (Pa. Cmwlth. 1988). In Green, we explained the rationale for this 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. at 769.


              However, this Court subsequently recognized “limited extraordinary
circumstances” where a licensee may rely on the delay attributable to entities other
than PennDOT by showing: (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.




                                           6
              Here, there is no dispute that PennDOT acted promptly once it received
notice of Licensee’s conviction from the MDJ. Therefore, in order to obtain relief,
Licensee had to show she satisfied the three criteria espoused in Gingrich.


              As the trial court acknowledged, although Licensee was convicted of
DUI in June 2015 and served a resulting one-year suspension shortly before the MDJ
transmitted notice of Licensee’s conviction presently at issue, the trial court did not
consider this DUI conviction when it sustained Licensee’s appeal. See Tr. Ct., Slip
Op., 3/7/17, at 2. Under these circumstances, we agree with the trial court that a
remand is appropriate so that the trial court may consider Licensee’s DUI conviction
in applying and balancing the criteria set forth in Gingrich on the existing record.
See Janes v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 369
C.D. 2017, filed October 24, 2017) (unreported)2 (discussing application and
balancing of Gingrich criteria where licensee received subsequent conviction prior
to notification of most recent conviction to PennDOT).


                                     III. Conclusion
              Based on the foregoing, we vacate the trial court’s order sustaining
Licensee’s appeal and remand for proceedings consistent with the foregoing opinion.




                                          ROBERT SIMPSON, Judge




       2
        Unreported decisions of this Court may be cited for their persuasive value. Internal
Operating Procedures of the Commonwealth Court §414(a), 210 Pa. Code §69.414(a).

                                             7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Becky Fritts,                               :
                                            :
            v.                              :   No. 193 C.D. 2017
                                            :
Commonwealth of Pennsylvania,               :
Department of Transportation,               :
Bureau of Driver Licensing,                 :
                         Appellant          :

                                     ORDER

            AND NOW, this 16th day of February, 2018, the order of the Court of
Common Pleas of Clinton County is VACATED and this matter is REMANDED
for proceedings consistent with the foregoing opinion.


            Jurisdiction is relinquished.




                                       ROBERT SIMPSON, Judge
