         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Nercesian, Jr.                         :
                                               :
              v.                               : No. 1795 C.D. 2016
                                               : Submitted: May 5, 2017
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing,                    :
                                               :
                      Appellant                :

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                               FILED: June 12, 2017

              The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Bureau) appeals from the September 27, 2016 order
of the Delaware County Court of Common Pleas (Trial Court) sustaining the
appeal of Richard Nercesian, Jr.1 (Licensee), and reinstating Licensee’s operating
privileges on the basis that the Bureau unreasonably delayed suspending
Licensee’s license to operate a motor vehicle following Licensee’s entry of a plea
of guilty for leaving the scene of an accident on May 8, 2015 in violation of
Section 3743(a) of the Vehicle Code, 75 Pa. C.S. § 3743(a). For the following
reasons, we reverse the Trial Court.2


1
 Licensee was precluded from filing a brief by April 28, 2017 order of this Court for failure to
comply with this Court’s April 3, 2017 order directing him to file a brief within 14 days.
2
 This Court’s review of a trial court order in an appeal from a license suspension is limited to
determining whether the trial court’s findings are supported by competent evidence and whether
              The facts in this matter are not in dispute. On March 26, 2016,
Licensee entered a plea of guilty to a violation of Section 3743 of the Vehicle
Code, 75 Pa. C.S. § 3743. As a civil collateral consequence of Licensee’s guilty
plea, Section 1532(b) of the Vehicle Code requires that the Bureau “shall suspend
the operating privilege of any driver for six months upon receiving a certified
record of the driver’s conviction.” 75 Pa. C.S. § 1532(b)(1). The Bureau received
a certified record of Licensee’s conviction from the Delaware County Office of
Judicial Services (OJS) on August 2, 2016. The Bureau imposed a six-month
suspension of Licensee’s operating privileges by notice mailed to Licensee on
August 10, 2016. On August 19, 2016, Licensee filed an appeal with the Trial
Court and the Trial Court held a de novo hearing on September 27, 2016.
              Before the Trial Court, Licensee testified that he had believed his
suspension began on the day he pled guilty and that he had stopped driving as of
that date and had hired others to drive him. (Hearing Transcript (H.T.) at 13-14.)
Licensee further testified that his business consisted of high-end detailing of motor
vehicles and that as a part of his service, he picks up the vehicle, drives the
customer where he or she needs to go, and then delivers the finished vehicle to the
customer. (Id. at 14.) Licensee testified that although he had hired others to assist
him during the five months and one week in which he believed he had been serving
his license suspension, he was entering his busy season, and it would create a strain
on his business to employ yet more people for an additional six months. (Id. at
15.)   On cross-examination, Licensee stated that he received notice of his
suspension by letter dated August 10, 2016 and that this was when he first became


the trial court committed an error of law or an abuse of discretion. Cesare v. Department of
Transportation, Bureau of Driver Licensing, 16 A.3d 545, 548 n.6 (Pa. Cmwlth. 2011).

                                             2
aware that he was not already serving his suspension and that his suspension had
not gone into effect on the date of his conviction. (Id. at 16-17.) Licensee also
testified on cross-examination that he had not submitted his license to the Bureau,
which he first learned was necessary when he received the August 10, 2016 notice,
and that he was aware that the Bureau imposed license suspensions. (Id.)
             Following the evidentiary part of the hearing, the Trial Court
permitted Licensee and the Bureau to submit legal argument orally before the
Court. The Trial Court then entered an order, both orally and written, granting
Licensee’s appeal and reinstating his license to operate a motor vehicle. The
Bureau appealed. On January 23, 2017, the Trial Court issued a Rule 1925(a)
opinion with a thorough discussion of the evidentiary record and the legal
arguments made orally before the Court.
             In reaching the conclusion that Licensee’s suspension should be lifted,
the Trial Court first reviewed the test established to sustain an appeal based on an
unreasonable delay in imposing the suspension. Where an unreasonable delay is
alleged, the licensee has the burden of demonstrating: (1) an unreasonable delay
chargeable to the Bureau, (2) which led the licensee to believe that the licensee’s
operating privileges would not be impaired, and that would cause the licensee
prejudice by having the operating privileges suspended after the delay. Terraciano
v. Department of Transportation, Bureau of Driver Licensing, 753 A.2d 233, 236
(Pa. 2000) (holding that a seven-year lapse in the proceeding attributable to the
Bureau, during which licensee obtained a commercial driver’s license that she
depended upon for employment, satisfied the criteria for sustaining licensee’s
appeal and reinstating her operating privileges).



                                          3
            The Trial Court concluded that Licensee had established that he was
under the belief that he had only three weeks remaining on his suspension when he
received notice from the Bureau that the suspension had not in fact started and that
Licensee had established that he would be prejudiced by having his operating
privileges suspended for six months following the delay between his conviction
and receipt of the suspension notice from the Bureau.
            However, in the instant matter, there is no dispute that the delay was
not chargeable to the Bureau. Although Licensee pled guilty on March 26, 2016,
OJS did not certify the record of his conviction to the Bureau until August 2, 2016.
The Bureau notified Licensee of his suspension by August 10, 2016 notice.
Therefore, the only delay attributable to the Bureau is the eight day lapse between
certification by OJS and the mail date on the notice to Licensee. The Trial Court
did not overlook this element of the unreasonable delay test, but concluded that
considerations of equity and due process necessitated the reinstatement of
Licensee’s operating privileges.
            The Trial Court was particularly persuaded by a series of United
States Supreme Court cases addressing the requirement under the Fourth
Amendment to the United States Constitution that agents of the government obtain
a warrant before conducting a search. In Birchfield v. North Dakota, __ U.S. __,
136 S. Ct. 2160 (2016), Justice Sotomayor, in an opinion concurring in part and
dissenting in part joined by Justice Ginsburg, concurred in the majority’s holding
that the search-incident-to-arrest exception to the Fourth Amendment did not
permit warrantless blood tests, but dissented as to the majority’s holding that the
exception did permit warrantless breath tests of drivers suspected of operating a
motor vehicle under the influence of alcohol or other impairing substances. Id. at


                                         4
__, 136 S. Ct. at 2187. In reasoning that the search-incident-to-arrest exception to
the Fourth Amendment should not apply to breath tests, Justice Sotomayor relied
upon an ongoing discussion in the United States Supreme Court’s Fourth
Amendment jurisprudence regarding the increased ease of obtaining a warrant due
to advances in technology that have revolutionized life and communication in these
United States.   Id. at __, 136 S. Ct. at 2192.       The same advances, Justice
Sotomayor reasoned, would allow a warrant to be obtained for a breath test during
the two-hour window within which the government defendants required a breath
test to be administered following the point in time when a motorist was suspected
of driving under the influence of alcohol or other impairing substances. Id. at __,
136 S. Ct. at 2192-93.
            The cases relied upon by Justice Sotomayor include Missouri v.
McNeely, __ U.S. __, 133 S. Ct. 1552 (2013) (plurality), where a majority of the
Court concurred in the judgment that the natural speed at which the human body
metabolizes alcohol does not give rise to a per se exigency exception to the Fourth
Amendment mandate that agents of the government obtain a warrant to conduct a
search. In McNeely, Chief Justice Roberts authored an opinion concurring in part
and dissenting in part joined by Justices Breyer and Alito, which discusses how the
use of telephonic and electronic warrants have greatly reduced the hurdles police
officers in the field previously encountered when caught between the exigencies of
the circumstances and the restraints embodied by the Fourth Amendment. Id. at
__, 133 S. Ct. at 1572-1573. The Court expanded on this discussion in Riley v.
California, __ U.S. __, 134 S. Ct. 2473 (2014), where the Court held that the
Fourth Amendment to the United States Constitution mandated that police obtain a
warrant before searching a cellphone seized incident-to-arrest.     In reaching its


                                         5
holding, the Court’s reasoning was multifaceted; however, two grounds discussed
by the Court include the efficiency with which police officers and other agents of
the government are now able to obtain warrants due to the advances in how data is
transmitted and the rejection of the argument that a search of cellphone data
without a warrant should be permitted if the same information could have been
obtained from an analog counterpart, such as permitting the calendar on a
cellphone to be searched because the person under arrest could have previously
carried a pocket calendar. Id. at __, 134 S. Ct. at 2493-2494.
             Based on the United States Supreme Court’s reasoning regarding the
duties of government actors as a result of advances in technology, the Trial Court
concluded that the length of time within which it took the Bureau to impose
Licensee’s suspension when it could have received the certification of Licensee’s
conviction by the touch of a button was unreasonable. In the instant matter, the
United States Supreme Court’s consideration of how technological changes have
affected the analysis of common law exceptions to the right of the people and
restraint on the government enshrined in the Fourth Amendment to the United
States Constitution does not offer a persuasive analogy for several reasons. First,
the touchstone of the Fourth Amendment is reasonableness. U.S. Const. amend.
IV (“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated…”
(emphasis added)). This touchstone has consistently made an examination of the
totality of circumstances an inherent part of Fourth Amendment jurisprudence,
even where the totality of circumstances is addressed simply to exclude its
consideration as an analytical tool in favor of a categorical or a bright-line rule
approach. See, e.g., Riley v. California, __ U.S. __, 134 S. Ct. at 2483-2485. The


                                         6
reasonableness standard set forth in the text of the Fourth Amendment likewise
explicitly implicates the use of discretion by the courts. Id. By contrast, the
analysis of whether or not a licensee’s operating privileges are suspended is not
guided by a reasonableness standard but results from a binary operation of statute
that excludes the exercise of discretion by the courts. 75 Pa. C.S. § 1532(b)(1); see
also, e.g., Banks v. Department of Transportation, Bureau of Motor Vehicles, 856
A.2d 294, 296 (Pa. Cmwlth. 2004).       Although the issue of whether a licensee’s
operating privileges should be restored inquires whether there has been an
“unreasonable delay,” this inquiry posits a narrow exception to the statute that
hinges on specific, concrete facts that must be present in each application of the
exception.   Second, the Fourth Amendment to the United States Constitution
speaks of a right held by the people and places a restraint on the actions of the
government; a license, however, is a privilege conferred under specific terms
established by the Vehicle Code, and it shall be rescinded when those terms are
violated. Third, the ongoing discussion in the United States Supreme Court’s
Fourth Amendment jurisprudence regarding the changes technology has wrought
in our society and the implication for our understanding of common law exceptions
to the Fourth Amendment cannot be divorced from its context. The aegis of the
Fourth Amendment is a constant. However, the context within which a court
scrutinizes an issue before it will always shape its analysis; the scrutiny a court
must apply in a penal matter to an examination of common law precedent
establishing exceptions to rights expounded by our Constitution differs
substantially from an examination of regulatory statutes in a remedial matter. See,
e.g., Kozieniak v. Department of Transportation, Bureau of Driver Licensing, 100
A.3d 326, 330-31 (Pa. Cmwlth. 2014).


                                         7
              We do not wish to suggest that changes in our society and resulting
expectations of the public will never inform analysis by the courts of the duties of
state and local government when enforcing remedial statutes to rescind a privilege
conferred.     Rather, our rejection of the discussion in Birchfield, Riley, and
McNeely, as a persuasive analogy in the instant matter turns primarily upon our
reliance on this Court’s en banc decision in Gingrich v. Department of
Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016),
where an unreasonable delay attributable to the courts rather than the Bureau was
directly addressed.
              In Gingrich, the issue before this Court was whether a delay
attributable to the clerk of courts rather than the Bureau, much like the delay here,
could satisfy the first element of the “unreasonable delay” test. This Court held in
Gingrich that the fact that the “unreasonable delay” was not attributable to the
Bureau is immaterial where a licensee demonstrated that (1) the entity responsible
for certifying a conviction to the Bureau 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 Bureau, and
(3) the licensee was prejudiced by the delay.3 Id. at 534; see also Currie v.
Department of Transportation, Bureau of Driver Licensing, 142 A.3d 186, 189
(Pa. Cmwlth. 2016). However, this exception to the rule that an “unreasonable
delay” must be attributable to the Bureau was limited in Gingrich to extraordinary
circumstances. Id.

3
  We granted relief in Gingrich, holding that the licensee demonstrated a gap of ten years
between her conviction and 2014 suspension, a lack of additional issues since her last conviction
in 2006 and prejudice, and that therefore the licensee’s “suspension has lost the underlying
public safety purpose and now simply is a punitive measure sought to be imposed too long after
the fact.” Id. at 535.
                                               8
            In the instant matter, Licensee has not demonstrated the presence of
extraordinary circumstances. The gap between his conviction and the Bureau’s
receipt of the certification of his conviction and notice to Licensee was roughly
five months, which, while not ideal, was certainly not an “extraordinary extended
period of time.” Therefore, the Trial Court erred in not denying Licensee’s appeal
because, as we stated in Department of Transportation, Bureau of Driver Licensing
v. Green, 546 A.2d 767 (Pa. Cmwlth. 1988):


            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 Bureau]
            has not been guilty of administrative delay, judicial
            system delay in notifying [the Bureau] will not operate to
            invalidate driver’s license suspensions merited by
            Vehicle Code convictions.                Department of
            Transportation, Bureau of Traffic Safety v. Davis, [527
            A.2d 607 (Pa. Cmwlth. 1987)] (seventeen months
            judicial system delay); Department of Transportation,
            Bureau of Traffic Safety v. Kazil, [510 A.2d 148 (Pa.
            Cmwlth. 1986)] (two years judicial system delay);
            Department of Transportation, Bureau of Traffic Safety
            v. Chrzanowski, [505 A.2d 1129 (Pa. Cmwlth. 1986)]
            (two-and-one-quarter years judicial system delay);
            Schultz v. Department of Transportation, Bureau of
            Traffic Safety, [488 A.2d 408 (Pa. Cmwlth. 1985)] (four
            years judicial system delay); Department of
            Transportation, Bureau of Traffic Safety v. Lyons, [453
            A.2d 730 (Pa. Cmwlth. 1982)] (seventeen months
            judicial system delay).

            The principle steadfastly applied in these decisions is
            consistent with sound policy. Under the Vehicle Code,
            [the Bureau] is the agency made responsible for
            imposition of the sanctions which the law uses to keep

                                        9
               unsafe drivers off the highways for stated periods. This
               court has held that a material breach by [the Bureau] of
               that responsibility will invalidate the legal effectiveness
               of the sanction. If [the Bureau] 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 Bureau]. 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.

Green, 546 A.2d at 768-769; see also Pokoy v. Department of Transportation,
Bureau of Driver Licensing, 714 A.2d 1162, 1164 (Pa. Cmwlth. 1998) (licensee
not entitled to relief where only 24 days of the delay was attributable to the Bureau
and the remainder of the four-year long delay was attributable to the clerk of
courts); compare with Capizzi v. Department of Transportation, Bureau of Driver
Licensing, 141 A.3d 635, 643 (Pa. Cmwlth. 2016) (suspension of licensee’s
operating privilege seven years and 10 months after his conviction was an
unreasonable delay, even though the delay was attributable to the court rather than
the Bureau).
               Accordingly, we reverse the order of the Trial Court.



                                       __________ ___________________________
                                       JAMES GARDNER COLINS, Senior Judge




                                           10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Nercesian, Jr.               :
                                     :
            v.                       : No. 1795 C.D. 2016
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing,          :
                                     :
                   Appellant         :


                                ORDER

            AND NOW, this 12th day of June, 2017, the order of the Delaware
County Court of Common Pleas in the above-captioned matter is REVERSED.




                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
