         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cole M. Viani,                      :
                   Appellant        :
                                    :
            v.                      :   No. 2538 C.D. 2015
                                    :   Submitted: June 24, 2015
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing          :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                         FILED: September 28, 2016

            Cole M. Viani appeals an order of the Court of Common Pleas of
York County (trial court) dismissing his appeal and reinstating a two-year
suspension of his operating privileges imposed by the Department of
Transportation, Bureau of Driver Licensing (PennDOT) pursuant to Section
1532(c) of the Vehicle Code, 75 Pa. C.S. §1532(c). Because additional factual
findings are needed to determine whether Viani qualifies for relief under this
Court’s recent decision in Gingrich v. Department of Transportation, Bureau of
Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016), we vacate and remand for
further proceedings.
            On August 6, 2008, Viani was convicted in York County for violating
Section 13(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act
(Drug Act), 35 P.S. §780-113(a)(16) (relating to possession of a controlled or
counterfeit substance).1 Six years later, on August 15, 2014, PennDOT notified
Viani that his operating privilege was being suspended for two years effective
September 26, 2014, in accordance with Section 1532(c) of the Vehicle Code, 75
Pa. C.S. §1532(c),2 as a consequence of his 2008 drug conviction. Viani appealed
the suspension to the trial court.
              On appeal to the trial court, Viani’s case and twenty-two others with
similar delays were consolidated for disposition. At a hearing on March 25, 2015,
counsel for the licensees offered to introduce testimony from each licensee
regarding the prejudice they experienced due to the delayed suspension notices.
Instead of hearing individual testimony from each licensee, the court asked
PennDOT’s counsel to “accept … that if all these people were called to testify,
they would indeed offer their opinion that they have been prejudiced by the delay
….” R.R. 46. PennDOT’s counsel did not so stipulate. Nevertheless, the trial
court accepted the statement of licensees’ counsel and assumed prejudice existed
as to each licensee. R.R. 49. At the conclusion of the hearing, the trial court
deferred its decision on the licensees’ appeals pending this Court’s decision in


1
 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144.
2
 Section 1532(c) states, in relevant part:
       (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 possession, sale, delivery, offering for sale, holding for sale or
       giving away of any controlled substance under the laws of the United States, this
       Commonwealth or any other state….
               (1) The period of suspension shall be as follows:…
                      (iii) For a third and any subsequent offense
                      thereafter, a period of two years from the date of the
                      suspension.
75 Pa. C.S. §1532(c)(1)(iii).


                                               2
Smires v. O’Shell, 126 A.3d 383 (Pa. Cmwlth. 2016). On October 23, 2015, this
Court rendered its decision in Smires,3 and as a result, the trial court dismissed the
licensees’ appeals and reinstated the suspensions. Viani now appeals.4
              On appeal,5 Viani argues that the delay in reporting of his conviction
to PennDOT violated his right to due process. While the general rule remains that
the delay must be attributable to PennDOT to warrant setting aside a license
suspension, this Court recently recognized a limited exception to that rule in
Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d
528, 534 (Pa. Cmwlth. 2016). Under the exception, relief to a licensee may be
appropriate upon a showing of the following: (1) a conviction not reported for an
extraordinarily extended period of time, (2) a lack of further violations for a
significant number of years before the report is finally sent, and (3) prejudice. Id.
              In Gingrich, the licensee’s conviction was not reported to PennDOT



3
  In Smires, several individuals, including Viani, whose license suspensions were delayed by the
York County Clerk of Courts’ failure to timely report their convictions to PennDOT sought a
writ of mandamus from this Court directing PennDOT to reinstate their operating privileges
notwithstanding their prior convictions. The licensees argued they were entitled to relief on
grounds of equal protection, equitable estoppel, laches and due process. This Court held that
mandamus relief was not warranted because the licensees could seek relief through their
statutory right of appeal. Smires, 126 A.3d at 394.
4
  An appeal by the other licensees, with the exception of Lanny Riffey, is currently pending
before this Court at Butler v. Department of Transportation, Bureau of Driver Licensing, No.
2533 C.D. 2015. Riffey’s appeal, which is identical to the instant appeal, was decided by a
separate memorandum opinion and order filed today.               See Riffey v. Department of
Transportation, Bureau of Driver Licensing, (Pa. Cmwlth., No. 2537 C.D. 2015, filed September
28, 2016).
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. Department of Transportation,
Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989).


                                               3
for nearly ten years. Id. at 529.6 She had no further violations for eight years prior
to the report being sent to PennDOT. Id. at 529-30. Following her conviction, the
licensee obtained a bachelor’s degree, secured employment, and had a child. Id. at
530. She testified that imposing the suspension now would impact her ability to
drive her child to school, and would likely result in the loss of her job, which
requires her to drive. Id. Because she satisfied the requirements for the narrow
exception, we vacated her suspension.
              The record in the case sub judice is insufficient for this Court to
determine whether Viani qualifies for the Gingrich exception. The application of
this exception, especially the determination of prejudice to the licensee, is
exceedingly factual in nature.            The trial court’s acceptance of counsel’s
representation that every licensee, including Viani, would testify that he or she was
prejudiced is not enough.           Accordingly, we vacate and remand for further
proceedings to determine whether Viani can demonstrate that he is entitled to relief
from the imposition of the two-year license suspension under Gingrich.7

                                        _____________________________________
                                         MARY HANNAH LEAVITT, President Judge




6
   This Court expressly declined to “establish a bright line in which a delay becomes
extraordinary.” Gingrich, 134 A.3d at 534. However, we held that a nearly ten-year delay in
reporting of a conviction met that standard. Id. at 535.
7
  Based on our disposition of the case, we need not address Viani’s arguments pertaining to equal
protection, equitable estoppel, and laches.


                                               4
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole M. Viani,                           :
                  Appellant              :
                                         :
            v.                           :   No. 2538 C.D. 2015
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing               :


                                   ORDER

            AND NOW, this 28th day of September, 2016, the order of the Court
of Common Pleas of York County dated November 10, 2015, in the above-
captioned matter is hereby VACATED and the case is REMANDED for further
proceedings in accordance with the attached opinion.
            Jurisdiction relinquished.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
