                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Fahad                                  :
                                                :
                v.                              : No. 392 C.D. 2017
                                                : Submitted: November 9, 2018
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing,                     :
                  Appellant                     :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge1
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                           FILED: March 26, 2019

                The 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 Mohammad Fahad (Licensee) from
a one-year suspension of his operating privilege imposed by PennDOT pursuant to
Section 1532(c) of the Vehicle Code, 75 Pa. C.S. §1532(c). In doing so, the trial
court held that the two years and four months between Licensee’s conviction and the
PennDOT’s notice of suspension constituted an “extraordinary delay” warranting
relief under Gingrich v. Department of Transportation, Bureau of Driver Licensing,
134 A.3d 528 (Pa. Cmwlth. 2016). We affirm.


1
    This case was assigned to the authoring judge on November 27, 2018.
                  On April 7, 2014, Licensee was convicted in Delaware County of
violating Section 13(a)(30) of The Controlled Substance, Drug, Device and
Cosmetic Act (Drug Act),2 35 P.S. §780-113(a)(30) (relating to illegal manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled substance).
On August 24, 2016, two years and four months after his conviction, PennDOT
notified Licensee that his operating privilege was being suspended for one year in
accordance with Section 1532(c)(1)(ii) of the Vehicle Code,3 as a consequence of
his 2014 drug conviction. Licensee appealed the license suspension to the trial court.
                  At a hearing on December 6, 2016, PennDOT offered into evidence a
packet of certified documents related to Licensee’s suspension.                           One of the
documents certified that the Delaware County Office of Judicial Support4
electronically transmitted the record of Licensee’s April 7, 2014, conviction to
PennDOT on August 8, 2016. Reproduced Record at 34a (R.R. __). PennDOT
mailed the notice of suspension to Licensee on August 24, 2016.




2
    Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144.
3
    Section 1532(c)(1)(ii) 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:
                                             ***
                      (ii) For a second offense, a period of one year from
                      the date of the suspension.
75 Pa. C.S. §1532(c)(1)(ii).
4
  In Delaware County, the Office of Judicial Support performs the functions of the former Clerk
of Courts and Prothonotary.
                                                    2
               Licensee did not dispute the fact of his drug conviction but testified that
he was prejudiced by PennDOT’s delayed notice of his license suspension.
Licensee testified that he first obtained a driver’s license in 2014, after his operating
privilege was restored from a previous conviction.5 When his employer learned he
was licensed to drive, Licensee was promoted to deli manager. He explained that
“since [he is] able to drive, [he is] working seven days a week … opening and
closing[,]” and is required to drive to New York City to purchase supplies from
wholesale markets. Notes of Testimony, 12/6/2016, at 6 (N.T. __); R.R. 18a.
Licensee also testified that he has partial custody of his son, whom he sees on
weekends. By mutual agreement, he provides $400-$500 per month to his ex-wife
in support payments.
               Licensee testified that if he lost his license, he would lose his job. He
also expressed concern over the impact that losing his license would have on seeing
his son, and his ability to continue to make support payments to his ex-wife.
               On March 10, 2017, the trial court issued an order sustaining Licensee’s
appeal and reinstating his operating privilege. In a subsequent opinion, the trial court
explained that, traditionally, delays that are not attributable to PennDOT will not


5
  PennDOT offered into evidence a document certifying that Licensee was convicted on December
2, 2010, for a violation of Section 13(a)(16) of the Drug Act, 35 P.S. §780-113(a)(16) (relating to
possession of a controlled substance). R.R. 39a. As a consequence of that conviction, PennDOT
mailed a notice of suspension to Licensee on December 29, 2010, informing him that his driving
privilege was suspended for a six-month period effective February 2, 2011, pursuant to Section
1532(c)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1532(c)(1)(i).
        It appears Licensee did not have a license at the time of the 2010 conviction, and did not
attempt to obtain one until 2014. When Licensee went to obtain a license in 2014, PennDOT
informed him that he had a six-month suspension but did not explain the basis of the suspension.
Notes of Testimony, 12/6/2016, at 8-9 (N.T.__); R.R. 20a-21a. PennDOT sent Licensee a letter
advising him that his driving privilege was reinstated as of September 23, 2014. At some later
date in 2014, Licensee obtained a license.
                                                3
invalidate a license suspension. However, in Gingrich, 134 A.3d at 535, this Court
announced an exception to that rule, holding that a license suspension can be set
aside for a delay between the conviction and the suspension caused by the failure of
the clerk of courts to notify PennDOT of the conviction for ten years. The licensee
must establish that certification of the conviction was delayed for an extraordinary
period of time; the licensee has not had any Vehicle Code violations for a significant
period of time; and the licensee was prejudiced by the delay. Here, the trial court
found that Licensee met all three Gingrich factors. PennDOT now appeals.
               On appeal,6 PennDOT argues that the trial court erred and abused its
discretion in sustaining Licensee’s appeal because he did not satisfy the first
Gingrich factor. Specifically, PennDOT asserts that the delay of two years and four
months between the date of Licensee’s conviction and the date it was reported to
PennDOT does not constitute an “extraordinarily extended period of time.” 7
PennDOT observes that in Gingrich the delay between conviction and suspension
was ten years. PennDOT cites additional cases for the proposition that a delay of
under three years cannot be held to be extraordinary. See Gombocz v. Department
of Transportation, Bureau of Driver Licensing, 849 A.2d 284 (Pa. Cmwlth. 2004),
reversed, 909 A.2d 798 (Pa. 2006); Pokoy v. Department of Transportation, Bureau
of Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998); and Schultz v. Department
of Transportation, Bureau of Driver Licensing, 488 A.2d 408 (Pa. Cmwlth. 1985).

6
  “Our standard of review in a license suspension case is to determine whether the factual findings
of the trial court are supported by competent evidence and whether the trial court committed an
error of law or an abuse of discretion.” Negovan v. Department of Transportation, Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017) (quoting Gammer v. Department of
Transportation, Bureau of Driver Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010)).
7
  PennDOT does not dispute that the second and third factors of the Gingrich standard are met in
this case. Licensee has had no violations since his 2014 conviction, and he has established that he
would be prejudiced by a suspension of his operating privilege.
                                                4
This Court’s recent en banc decision in Middaugh v. Department of Transportation,
Bureau of Driver Licensing, 196 A.3d 1073 (Pa. Cmwlth. 2018), resolves
PennDOT’s issue here.
             In Middaugh, the licensee was convicted of driving under the influence
of alcohol on March 31, 2014, and PennDOT did not receive the Clerk of Courts’
certification of the conviction until August 8, 2016. On August 23, 2016, the
licensee was sent a notice that his operating privilege was suspended for one year
based on the 2014 conviction. The licensee appealed, asserting that the delay of two
years and four months was fundamentally unfair and caused him great prejudice.
Applying the three-part Gingrich test, the trial court agreed. On appeal to this Court,
PennDOT argued that the trial court erred because Gingrich required a delay of
approximately ten years to be extraordinary. Therefore, the three-prong test set forth
in Gingrich was inapplicable.
             We rejected PennDOT’s appeal and held that Gingrich did not impose
a rigid ten-year minimum in order for the delay to be considered extraordinary. We
explained as follows:

             Since Gingrich, the courts of common pleas and this Court have
             applied the Gingrich factors to various circumstances and time
             periods. As this case law has developed, the courts have
             carefully evaluated whether periods of delay shorter than 10
             years can qualify as extraordinarily extended periods of time. For
             example, this Court has affirmed decisions of the courts of
             common pleas which held that non-Departmental delays of 9
             years, 7 years and 10 months, 2 years and 7 months, and 2 years
             and 4 months can be considered extraordinarily extended periods
             of time to meet Gingrich’s first factor, where the other Gingrich
             factors were also satisfied.[]




                                          5
Id. at 1083 (internal footnote omitted). Nevertheless, in Middaugh, we refined the
first Gingrich prong by adopting objective criteria to use when considering whether
the delay qualifies as extraordinary. We explained:

              [I]f a clerk of court reports a conviction to the Department within
              the applicable period of the license suspension plus 10 days, such
              delay, as a matter of law, cannot be an extraordinarily extended
              period of time sufficient to meet the first Gingrich factor.[]
              However, where the delay exceeds that period, and where the
              remaining Gingrich factors are satisfied, a court of common
              pleas can find that relief is appropriate under Gingrich.

Id. at 1086 (internal footnote omitted) (emphasis added). The “plus 10 days”
language was derived from the requirement in Section 6323(1)(i) of the Vehicle
Code that a clerk of court must send notice of a relevant conviction to PennDOT
“within ten days after final judgment of conviction[.]” 75 Pa. C.S. §6323(1)(i).8 In
Middaugh, the delay of two years and four months exceeded the one-year license
suspension, plus ten days. Therefore, the first prong was met. Because the licensee


8
  Section 6323(1)(i) states, in more detail, as follows:
       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).
                                              6
established that she remained free of driving violations for 51 months and would
suffer prejudice if her license was suspended, we held that she also satisfied the
second and third Gingrich factors and affirmed the trial court.
             Here, PennDOT does not dispute that Licensee established the second
and third factors, i.e., a lack of further driving violations and prejudice due to the
loss of his license. PennDOT’s only claim is that a delay of two years and four
months is insufficient to meet the first prong of Gingrich. Middaugh holds to the
contrary. The delay of two years and four months exceeds the 18-month license
suspension, plus ten days. The delay is extraordinary, and we reject PennDOT’s
claim of error.
             In sum, we agree with the trial court that Licensee demonstrated the
extraordinary circumstances necessary to vacate his suspension under Gingrich. The
trial court did not err in sustaining Licensee’s appeal and reinstating his operating
privilege. Accordingly, the trial court’s order is affirmed.


                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge

Judge Cohn Jubelirer did not participate in the decision in this case.

Judge Simpson Dissents.




                                          7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Fahad                       :
                                     :
           v.                        : No. 392 C.D. 2017
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing,          :
                  Appellant          :


                                ORDER


           AND NOW, this 26th day of March, 2019, the order of the Court of
Common Pleas of Delaware County dated March 10, 2017, in the above-captioned
matter is AFFIRMED.

                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Fahad                          :
                                        :
                  v.                    :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :    No. 392 C.D. 2017
                         Appellant      :    Submitted: November 9, 2018


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION
BY JUDGE COVEY                                      FILED: March 26, 2019

            I concur with the Majority’s conclusion that based on Middaugh v.
Department of Transportation, Bureau of Driver Licensing, 196 A.3d 1073 (Pa.
Cmwlth. 2018), because the delay of two years and four months exceeds the 18-
month suspension plus ten days, the delay is extraordinary. However, for the reasons
stated in my concurring and dissenting opinion to Middaugh, I believe Gingrich v.
Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa.
Cmwlth. 2016), should be abrogated.         Instead of relying on the three factors
established in Gingrich, the following considerations should be weighed in
determining whether a licensee’s suspension should be vacated: (1) the suspension
time and the 10-day reporting requirement when evaluating the length of the delay;
and (2) whether the licensee has been without further incident since his current
offense, and the existence of any prior offense(s) and, if so, the length of time before
his current offense. In applying these objective considerations, the focus is once
again on protecting the public, as that is the purpose of the license suspension.
             Weighing the above considerations in the instant matter, because
Mohammad Fahad (Licensee) had his license for only approximately six months
before the conviction at issue herein, and had just finished serving a six-month
license suspension immediately prior to obtaining his license, I do not believe his
current license suspension should be vacated merely because of a two year and four
month notice delay. “It is well settled in Pennsylvania that driving is a privilege[,]”
Marchese v. Commonwealth, 169 A.3d 733, 740 (Pa. Cmwlth. 2017), not a right, and
in light of the obvious public safety concerns clearly demonstrated here, I would
reverse the Delaware County Common Pleas Court’s order and reinstate Licensee’s
license suspension.
             For all of the above reasons, I respectfully dissent from the Majority as
written.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                        AEC - 2
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohammad Fahad                        :
                                      :
      v.                              : No. 392 C.D. 2017
                                      : SUBMITTED: November 9, 2018
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing,           :
                  Appellant           :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE CEISLER                                         FILED: March 26, 2019

      I respectfully dissent, as I do not believe that Licensee has demonstrated the
extraordinary circumstances necessary to vacate the one-year suspension of his
operating privilege.
      For the reasons stated in my Dissenting Opinion in Middaugh v. Department
of Transportation, Bureau of Driver Licensing, 196 A.3d 1073, 1088-90 (Pa.
Cmwlth. 2018) (en banc) (Ceisler, J., dissenting), I would abrogate both Middaugh
and Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134
A.3d 528 (Pa. Cmwlth. 2016) (en banc), and reverse the Trial Court’s Order.




                                         ________________________________
                                         ELLEN CEISLER, Judge
