                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Luca DeGrossi                                   :
                                                :    No. 291 C.D. 2017
               v.                               :
                                                :    Submitted: September 29, 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
BY JUDGE McCULLOUGH                                           FILED: November 27, 2017


               The Pennsylvania Department of Transportation, Bureau of Driver
Licensing (Department), appeals from the February 15, 2017 order of the Court of
Common Pleas of Delaware County (trial court) sustaining the statutory appeal of Luca
DeGrossi (Licensee) and vacating a six-month suspension of his operating privilege
that the Department imposed pursuant to section 1532(c)(1)(i) of the Vehicle Code
(Code).1 We affirm.
               On January 28, 2014, Licensee was convicted for possession of a
controlled substance.2 On August 8, 2016, more than two years later, the Delaware

       1
         This provision states that the Department shall suspend the operating privilege of any person
upon receiving a certified record of the person’s conviction of an offense involving the illegal use
and/or possession of a controlled substance and provides for a suspension of six months when it is
the person’s first offense. 75 Pa.C.S. §1532(c)(1)(i).

       2
         See section 13(a)(16) of The Controlled Substance, Drug, Device, and Cosmetic Act, Act of
April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(16).
County Office of Judicial Support (OJS), formerly known as the Clerk of Courts,
submitted a DL-21 Form to the Department regarding Licensee’s conviction. On
August 23, 2016, the Department mailed Licensee official notice that his license was
being suspended for a period of six months, effective August 23, 2016. The time gap
between the conviction and the notice of suspension was approximately two years and
seven months. (Trial court op. at 1-2.)
              Licensee filed an appeal to the trial court, contending that his license
suspension should be set aside due to unreasonable delay in effectuating the
suspension.
              At the de novo hearing held on December 6, 2016, the Department
introduced a certified record containing proof of Licensee’s January 28, 2014
conviction, documents that the Department sent to Licensee, and Licensee’s driving
history. (Reproduced Record (R.R.) at 40a-49a.) Licensee testified that, although he
was aware that his conviction would result in a license suspension, he understood that
the Department would notify him of the suspension within ten days of the conviction.
Licensee explained that since the conviction, he obtained a new job in the real estate
industry that requires him to drive to various locations, and that there is no public
transportation available from his home to the main office. Licensee stated that,
beginning in June 2016, he has been a Big Brother in the Big Brother/Sister Foundation
and that he needs his vehicle to take the child he works with on social and recreational
outings. Licensee further testified that he needs his vehicle to attend church events and
sobriety programs. (R.R. at 20a-37a; Trial court op. at 2-3.)
              On February 15, 2017, the trial court sustained the appeal and reinstated
Licensee’s operating privilege. Relying principally on Gingrich v. Department of
Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016) (en



                                           2
banc), the trial court determined that the two year and seven month delay in suspending
the license was unreasonable; Licensee did not experience any further violations
following his conviction; and Licensee sustained prejudice as a result of the delay.
Perceiving our decision in Gingrich as one that marked a sea change in the law, the
trial court rejected the authority proffered by the Department that pre-dated Gingrich
as “not dispositive.” (Trial court op. at 7.) Ultimately, the trial court concluded that
the license suspension was “inherently unfair and ignore[d] the fundamentals of due
process” and, hanging its hat on Gingrich, reinstated Licensee’s driving privilege.
(Trial court op. at 11.)
              The Department now appeals to this Court,3, 4 arguing that the trial court
erred as a matter of law in extending the holding of Gingrich to the facts of this case.
The Department emphasizes that the OJS was responsible for the delay and claims that
the length of the delay was simply too short to warrant reinstatement, even if Licensee
suffered prejudice. For support, the Department cites cases from this Court that
preceded Gingrich, contending that this decisional law has not been overruled and
continues onward as valid, binding precedent.
              “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.” Capizzi v. Department of Transportation,


       3
          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).

       4
        On August 14, 2017, this Court ordered Licensee to file an appellate brief within fourteen
days. Licensee did not, and we entered an order on September 25, 2017, precluding him from doing
so.



                                                3
Bureau of Driver Licensing, 141 A.3d 635, 640 (Pa. Cmwlth. 2016).5 While the general
rule remains that the delay must be attributable to the Department to warrant setting
aside a license suspension, this Court in Gingrich recognized a narrow exception for

       5
        The rationale for this rule was described in Department of Transportation, Bureau of Driver
Licensing v. Green, 546 A.2d 767 (Pa. Cmwlth. 1988), as follows:

               Although, paraphrasing Ralph Waldo Emerson, a foolish consistency
               may be the hobgoblin of little minds, this court can do no better than to
               adhere to the steady line of decisions in which we have held that, where
               [the Department] has not been guilty of administrative delay, judicial
               system delay in notifying [the Department] will not operate to
               invalidate driver’s license suspensions merited by Vehicle Code
               convictions . . . .

               The principle steadfastly applied in these decisions is consistent with
               sound policy. Under the Vehicle Code, [the Department] is the agency
               made responsible for imposition of the sanctions which the law uses to
               keep unsafe drivers off the highways for stated periods. This court has
               held that a material breach by [the Department] of that responsibility
               will invalidate the legal effectiveness of the sanction. If [the
               Department] 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 [the Department]. But a very different
               situation would prevail if the effectiveness of the Vehicle Code
               sanctions became dependent upon scores of court clerks and hundreds
               of functionaries within the minor judiciary. This court’s rule therefore
               protects the vehicle safety laws from vulnerability to delays within a
               system where detection and correction of official failure would be
               much more difficult.

Id. at 768-69 (citations omitted). Notably, this Court devised the rule despite the fact that the Vehicle
Code imposed a duty on the clerk of courts to send a record of the conviction to the Department within
ten days of the conviction. See section 6323(1)(i) of the Code, 75 Pa.C.S. §6323(1)(i). We reasoned
that the statutory provision requiring the court clerk to certify convictions to the Department within
ten days was directory and not mandatory, and that a court clerk’s lateness could not nullify the
Department’s power and duty to suspend the driving privilege of a person convicted of an enumerated
offense. Department of Transportation, Bureau of Driver Licensing v. Claypool, 618 A.2d 1231,
1232-33 (Pa. Cmwlth. 1992).




                                                   4
what we called “limited extraordinary circumstances.” 134 A.3d at 534-35.6 In
Gingrich, we held that even where the Department was not responsible for the delay, a
licensee could still have his or her license reinstated upon proof that: (1) the entity
responsible for certifying a conviction to the Department failed to do so for an
extraordinary extended period of time; (2) the licensee had no further Vehicle Code
violations for a significant number of years before the conviction was certified to the
Department; and (3) the licensee was prejudiced by the delay. Id.
                 In this case, the Department does not dispute that Licensee has met the
second and third prongs of the Gingrich test, and its challenge is solely to the trial
court’s application of the first prong. In Gingrich, this Court held that a ten-year delay
between the conviction and notice of suspension, which was attributable to the clerk of
courts, constituted an extraordinarily extended period of time. 134 A.3d at 534-35
(“Here, the record shows that [the licensee’s] 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.”).7 Later, in

       6
           In Gingrich, we justified the exception with this language:

                 [T]he 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.
134 A.3d at 534.
       7
         Accord Orwig v. Department of Transportation, Bureau of Driver Licensing, (Pa. Cmwlth.,
No. 286 C.D. 2015, filed June 3, 2016) (unreported) (applying the Gingrich exception where ten years
elapsed between the conviction and the clerk of court’s reporting of the conviction to the Department);
see Eckenrode v. Department of Transportation, Bureau of Driver Licensing, (Pa. Cmwlth., No. 168



                                                    5
Capizzi, we determined that a delay of seven years and ten months, which was
chargeable to the clerk of courts, also satisfied this standard. 141 A.3d at 643
(concluding that “the seven-year and ten-month delay between his conviction and the
report from the Beaver County Clerk of Courts . . . constitutes an extraordinarily
extended period of time.”).
              However, in Pokoy v. Department of Transportation, Bureau of Driver
Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998), this Court concluded that a four-year
delay, again attributable to the clerk of courts, was insufficient to set aside the license
suspension. Id. at 1164 (“[O]nly an unreasonable delay by [the Department], and not
the judicial system, invalidates [the Department’s] license suspension . . . . Because the
four year delay is not attributable to [the Department] we need not reach the issue of
whether [the licensee] suffered any prejudice.”). Previously, we reached the same
result in Schultz v. Department of Transportation, 488 A.2d 408 (Pa. Cmwlth. 1985)
(upholding license suspension where the four-year delay was attributable to the clerk
of courts). The basis for the holdings in Pokoy and Schultz was the fact that the
Department was not responsible for the delay.
              In this case, the Department seeks to invoke Pokoy as dispositive
authority. Recently, a panel of this Court, albeit in an unpublished decision, has
determined that, notwithstanding Gingrich and its newborn progeny, “Pokoy remains
good law.” Eckenrode v. Department of Transportation, Bureau of Driver Licensing,




C.D. 2015, filed July 14, 2016) (unreported) (same; nine years); cf. Nercesian v. Department of
Transportation, Bureau of Driver Licensing, (Pa. Cmwlth., No. 1795 C.D. 2016, filed June 12, 2017)
(unreported), slip op. at 9 (concluding that a license was properly suspended under Gingrich where
the delay was roughly five months, “which, while not ideal, was certainly not an ‘extraordinarily
extended period of time.’”).



                                                6
(Pa. Cmwlth., No. 168 C.D. 2015, filed July 14, 2016) (unreported), slip op. at 4.8 And,
in Currie v. Department of Transportation, Bureau of Driver Licensing, 142 A.3d 186,
189 n.4 (Pa. Cmwlth. 2016), we doubted “whether the Records Department’s failure to
report Licensee’s conviction to [the Department] for three years constitutes an
‘extraordinarily extended period of time’ under Gingrich.” Currie, 142 A.3d at 189 n.4.
However, our statement in Currie was a gratuitous observation, otherwise known as
dicta, because it was not essential to our holding. See id. (“[B]ecause we find that
Licensee was not prejudiced by the delay, we need not reach this question.”).
               It is well-settled that unpublished decisions from this Court are not
binding, see Duke Energy Fayette II, LLC v. Fayette County Board of Assessment
Appeals, 116 A.3d 1176, 1182 (Pa. Cmwlth. 2015), and neither is dicta. Rendell v.
Pennsylvania State Ethics Commission, 983 A.2d 708, 714 (Pa. 2009). Nonetheless,
Pokoy is a published decision, and because the fact pattern in that case is analogous to
the instant matter, this Court, sitting as three-judge panel, is bound to follow and apply
the outcome of Pokoy. This is true, unless, of course, there is intervening precedent
compelling a different result than the one we reached in Pokoy.
               Our latest pronouncement on Gingrich came from a published decision
filed on October 24, 2017, Gifford v. Department of Transportation, Bureau of Driver
Licensing, __ A.3d __ (Pa. Cmwlth., No. 386 C.D. 2017, filed October 24, 2017).9 In
that case, the licensee became a delivery driver for a tire business after his conviction,
and the clerk of courts delayed in informing the Department of the conviction for two
years and seven months. On appeal, the Department did not challenge the trial court’s

       8
         In Gingrich, this Court cited and discussed Pokoy, see 134 A.3d at 532, but there does not
appear to be anything in the text of Gingrich to suggest that we were expressly overruling that case.

       9
         Although the trial court in this case did not have the benefit of our decision in Gifford, the
same trial judge presided over both this case and Gifford, the Honorable Kathrynann Durham.


                                                  7
finding that the licensee did not incur any violations since his conviction. Nor did the
Department dispute that the licensee sustained prejudice as a result of the delay, yet we
reiterated that “prior case law supports the notion that losing a job that requires a
driver’s license constitutes prejudice.” Slip op. at 7 (citation omitted).
             This Court next determined that, under Gingrich, “the length of the delay
may be evaluated in the context of the degree of prejudice.” Id. at 10. Having decided
that the amount of prejudice shown by the licensee, i.e., the potential loss of
employment and inability to take his daughter to hospital visits, was “significant,” we
concluded that the trial court possessed the discretion to decide when the length of the
delay constituted an “extraordinarily extended period of time.” Id. Emphasizing that
Gingrich did not establish a bright line test in this regard, we affirmed “the trial court’s
determination that two years and seven months [was] 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.” Gifford, __
A.3d at __, slip op. at 10.
             In Gifford, this Court intermingled the length of the delay with the
particular “degree of prejudice shown,” ultimately clarifying a test where the “three
Gingrich factors [are] balanced.” Id. at 9-10; see id. at 10 (“[T]he 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.”). As in Gifford, the Department here does not
challenge the trial court’s finding that Licensee sustained prejudice. We nevertheless
note that, similar to the licensee in Gifford, Licensee’s new job requires that he have a
license to travel and view properties, his job would be in jeopardy if he did not have a
license, and he relies on his vehicle to attend sobriety and volunteer programs.



                                             8
Moreover, just as it did in Gifford, the Department in this case does not take issue with
the trial court’s finding that Licensee did not sustain any vehicular or criminal
violations following his conviction. Consequently, regardless of whether Gifford
overruled Pokoy sub silentio or circumscribed that case to the situation where a licensee
does not experience demonstrable prejudice (or only minimal prejudice), Gifford is
factually indistinguishable and the controlling authority in this matter. Therefore,
because the delay of two years and seven months was enough in Gifford, it must be
enough in this case, where the delay was also two years and seven months. We
conclude, therefore, that the trial court did not err in finding that the delay was for an
extraordinarily extended period of time under Gingrich.
             In making its determination, the trial court construed the exception in
Gingrich as one that effectively swallowed the previous rule and abrogated all of this
Court’s preexisting case law. With our decision in Gifford, this could quite possibly
be the case, for it is difficult to decipher how the “general rule” remains intact despite
sentiments from this Court to that effect. See Gifford, slip op. at 10 (“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 [the
Department] may be grounds for vacating a license suspension based on delay.”);
Capizzi, 141 A.3d at 643 (“[W]e emphasize that the general rule remains that only
delays attributable to the Department may be vacated.”); Gingrich, 134 A.3d at 534
(“[T]he 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.”). Whether the entire body of our case law comprising the ancien regime
is still viable post-Gingrich, be it as a practical matter or a legal one, is a question that



                                             9
we need not – and do not – decide today. For example, this Court has upheld license
suspensions where the delay attributable to the judicial system was two years and four
months, Department of Transportation, Bureau of Traffic Safety v. Kazil, 510 A.2d 148
(Pa. Cmwlth. 1986), two years and three months, Department of Transportation,
Bureau of Traffic Safety v. Chrzanowski, 505 A.2d 1129, 1130-31 (Pa. Cmwlth. 1986),
and one year and five months. Department of Transportation, Bureau of Traffic Safety
v. Davis, 527 A.2d 607, 609-10 (Pa. Cmwlth. 1987). These cases, however, involved
a period of delay that is shorter than the one at bar, and, for present purposes, we will
simply distinguish them on that basis.
               In any event, given our decision in Gifford, it appears that the primary
focus in these types of license suspension cases is the prejudice, if any, that a licensee
sustains from the delay. We believe that such a focus is warranted, not only by the
notion of fundamental fairness inherent in the due process clause, but also by Article I,
Section 11 of our Constitution, which commands that “Every man . . . shall have . . .
right and justice administered without . . . delay.” PA. CONST. article I, §11; see Exton
Drive-In, Inc. v. Home Indemnity Co., 261 A.2d 319, 322-23 (Pa. 1969) (“The right to
have justice administered without delay is a fundamental right which should not be
infringed unless no other course is reasonably possible.”); see also Davis v. South
Carolina Department of Motor Vehicles, 800 S.E.2d 493, 496 (Ct. App. S.C. 2017) (“A
person’s interest in his driver’s license is property that a state may not take away
without satisfying the requirements of due process. Due process is violated when a
party is denied fundamental fairness.”) (citation omitted).10

       10
           In reaching its conclusion that a delay exceeding two years or more is unreasonable for
purposes of due process, the trial court, in our view, effectively impeached the long-standing general
rule, positing that “an error by [the Department] should not be viewed differently than an error by the
judicial system because the result is the same for the licensee: prejudice.” (Trial court op. at 10.) In



                                                  10
               Because this case is substantially similar to our decision in Gifford, we
affirm the trial court’s order setting aside the suspension of Licensee’s driving
privilege.



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




1984, a trial court in Lehigh County, in a decision that does not seem to have been appealed, made a
similar argument when overturning a license suspension when there was a four-year delay.
Department of Transportation v. Curzi, 30 Pa. D.&C.3d 307, 310 (1984):

               Notwithstanding the rule of the Commonwealth Court that delays
               caused by the judiciary are not to be chargeable to [the Department],
               we believe that the period of delay between conviction and suspension
               may become so great that due process requires that the state be
               prohibited from securing the suspension regardless of the source of
               delay . . . . [W]e find that notions of fairness and decency, as embodied
               in the concept of due process, mandate that the state cannot suspend the
               appellant’s license after a four-year period of inaction on its part.

Id. at 310. In In re Petition of Donley, 618 S.E.2d 458, 461 (W.Va. 2005), the highest court of our
sister state, West Virginia, concluded that due process is violated when prejudice results from a delay
of nearly three years, even when the department issuing the license suspension is not responsible for
the delay. Ultimately, this authority reinforces our decision in Gifford and, also, the one we render
in this case.


                                                 11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Luca DeGrossi                          :
                                       :    No. 291 C.D. 2017
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                  Appellant            :


                                   ORDER


            AND NOW, this 27th day of November, 2017, the February 15, 2017
order of the Court of Common Pleas of Delaware County is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
