           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jaclyn Gingrich,                              :
                            Appellant         :
                                              :
                     v.                       :   No. 748 C.D. 2015
                                              :   Argued: December 9, 2015
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge3
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION BY
JUDGE LEADBETTER                             FILED: March 30, 2016


        Jaclyn Gingrich (Gingrich) appeals from the April 24, 2015 Order of the
Court of Common Pleas of Cumberland County (common pleas) that denied her
appeal from a one-year suspension of her operating privilege imposed by the
Pennsylvania Department of Transportation (Department). The Department
suspended Gingrich’s license as required by Section 3804(e)(2)(i) of the Vehicle
Code (Code), 75 Pa. C.S. §3804(e)(2)(i), based on its receipt of a report of

    1
      This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
    2
      This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
    3
      This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
Gingrich's conviction for violating Section 3802 of the Code, 75 Pa. C.S. §3802,
relating to driving under influence of alcohol or controlled substance (DUI). For
the reasons that follow, and based on the specific circumstances of this appeal, we
reverse.
         By official notice mailed on October 24, 2014, the Department imposed a
one-year suspension of Gingrich's operating privilege, effective November 28,
2014, as a consequence of receiving a report that Gingrich had been convicted on
August 24, 2004,4 of violating 75 Pa. C.S. §3802(a)(1) (relating to DUI- general
impairment) on May 8, 2004. (R.R. at 4-6). Gingrich timely appealed to common
pleas.
         Common pleas conducted a hearing de novo on February 20, 2015, at which
Department counsel advised the court that the report of Gingrich's 2004 DUI
conviction was transmitted to the Department on October 10, 2014. (R.R. at 11).
The Department acted timely upon receipt of the of conviction report and issued
the suspension notice within ten days.
         Gingrich testified that she was arrested for DUI in York County in May,
2004, but that she did not recall being convicted of DUI on August 24, 2004 (R.R.
at 18). She testified that her operating privilege had been restored on February 28,
2005 (R.R. at 21). Gingrich testified further that she had committed another DUI
violation in Cumberland County in 2006 and that she also had received a
suspension for a chemical test refusal (R.R. at 22-23). As a result, she again lost
her operating privilege. The Department returned her license to her on February


    4
      Gingrich indicates in her brief at pages 6-7 that she pleaded guilty and was sentenced on
October 19, 2004 by the Court of Common Pleas of York County. However, given our
disposition of this appeal the discrepancy between the dates is of no consequence.



                                              2
16, 2010, subject to the requirement to install an ignition interlock. (R.R. at 24-25).
Gingrich stated that she installed the ignition interlock system on her vehicle. Id.
She testified further that she renewed her driver's license on October 25, 2013
(R.R. at 26).
      Gingrich testified that she had earned an associate's degree and a bachelor's
degree and that she had been married in 2012. (R.R. at 26-27). She testified that if
she had known about the current suspension it might have affected her decision to
get married. (R.R. at 27-28). She also testified that she has a five-year old daughter
whom she drives to school, and stated that if she had known about the current
suspension it would have affected the decision about which school her daughter
would attend. (R.R. at 28-29).
      Gingrich testified that she works as an inspector for the United States
Department of Agriculture and she drives to farms in order to inspect processing
plants. (R.R. at 30). She stated that if she loses her operating privilege she most
likely would lose her job. (R.R. at 31).
      After deferring decision “for a period of 60 days in order to give [Gingrich]
the opportunity to explore an administrative resolution of the matter” (R.R. at 41),
common pleas on April 24, 2015 dismissed Gingrich's appeal and reinstated the
license suspension on the basis that the delay was not attributable to the
Department. In its Order and the accompanying Opinion, common pleas
incorporated its opinion issued in two similar matters in which it found that the
delay of up to ten years by the York County Clerk of Courts in submitting reports
of convictions to the Department was “truly unconscionable.” (Op. at 3). Under
these circumstances common pleas suggested that this Court “may choose to




                                           3
clarify, if not modify, its prior holdings to take into consideration what we would
perceive to be a patent denial of due process.” Id.
        Before this Court,5 Gingrich urges that we find that common pleas erred by
reinstating her suspension where she showed that she was prejudiced by the nearly
ten-year delay in the imposition of the license suspension. She asserts that the
extraordinary delay was a denial of due process. The Department does not dispute
that Gingrich was prejudiced by the delay caused by the York County Clerk’s
failure to timely forward conviction reports (Brief at 12), but argues that Gingrich
did not show that the delay was attributable to the Department as required by our
previous decisions.
        Reporting of convictions to the Department by the clerks of courts is
required by Section 6323(1)(i) of the Code as follows:

                      § 6323. Reports by courts

                     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


    5
    Based on the issue raised, our scope of review is limited to determining if common pleas
committed an error of law. Accordingly, our review is plenary.



                                             4
             a record of the judgment of conviction, acquittal or other
             disposition.

75 Pa. C.S §6323(1)(i) (emphasis added).
      We recently addressed the issue of the delay in reporting convictions to the
Department by the York County Clerk of Courts in Smires v. O’Shell, 126 A.3d
383 (Pa. Cmwlth. 2015). In that matter, a group of licensees petitioned for review
seeking a writ of mandamus against the York County Clerk of Courts and the
Department as a result of licensees’ respective convictions not being reported to
the Department for a period of five to ten years after the conviction dates.
Licensees in their petition for review alleged that a 2014 audit of the York County
Clerk of Court’s office showed that approximately 5000 convictions were not
reported to the Department as required by Section 6323, i.e., within ten days of the
conviction. Id. at 385-386.
      The licensees in Smires alleged further that their convictions, which
occurred between 2004 and 2009, were not reported until 2014, when the Clerk of
Courts submitted several thousand reports to the Department after his discovery of
the unreported convictions. Id at 386. As a result the Department did not issue
suspension notices until five to ten years after the convictions. Id. Upon receipt of
the conviction notices, the Department suspended licensees’ operating privileges
pursuant to Section 1532(c) of the Code, which states:

                    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, or any person 21 years of age or younger
             upon receiving a certified record of the person's
             conviction or adjudication of delinquency under 18

                                         5
                Pa.C.S. § 2706 (relating to terroristic threats) committed
                on any school property, including any public school
                grounds, during any school-sponsored activity or on any
                conveyance providing transportation to a school entity or
                school-sponsored activity.
75 Pa. C.S. §1532(c).
         The licensees appealed their suspensions to common pleas naming the
Department and the Clerk of Courts as parties. The Clerk was dismissed as a party.
Licensees claimed that the statutory appeal left them with no redress against the
Clerk. Smires, 126 A.3d at 386. Licensees posited that the Clerk of Court's failure
to report their convictions within the required ten-day time period rendered the
reports “illegal, null and void ab initio” and that the extreme delay in reporting
violated their due process and equal protection rights. Id. at 386-387. They thus
asserted that the Clerk of Courts should be equitably estopped from issuing
untimely conviction reports and that the Department was estopped from acting on
the delayed notices. Licensees also asserted that the doctrine of laches barred any
action on their convictions by either the Clerk of Courts or the Department. Id. As
relief, Licensees sought a writ of mandamus to the Clerk of Courts to issue new
conviction reports that would nullify the prior reports or date the suspensions to the
respective dates of conviction. Licensees also sought a writ of mandamus directing
the Department to reject the prior conviction reports as untimely filed. Id.
         The Department and the Clerk of Courts filed preliminary objections in the
nature of a demurrer arguing that licensees had an adequate statutory remedy in the
suspension appeal provided in Section 1550(a) of the Code,6 and that licensees did
not have a clear right to relief. Smires, 126 A.3d at 387.

    6
        Section 1550(a) provides:

(Footnote continued on next page…)


                                            6
       As a preliminary matter, the Court reviewed the body of case law regarding
delays in reporting convictions to the Department. That cogent and succinct review
stated:

              In Department of Transportation, Bureau of Driver Licensing v.
       Green, . . . 546 A.2d 767 (Pa. Cmwlth. 1988), affirmed without
       opinion, . . . 569 A.2d 350 (Pa. 1990), a clerk of courts notified
       PennDOT 14 months after a licensee's conviction, to which PennDOT
       responded with a license suspension. On appeal, the licensee argued
       that the untimely notice violated the statute, due process and caused
       him extreme prejudice because he lost his employment. The trial court
       agreed with the licensee and sustained his appeal. This Court reversed.
       We explained as follows:

                     Under the Vehicle Code, [PennDOT] 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 [PennDOT] of that responsibility will invalidate the
              legal effectiveness of the sanction. 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 upon scores of court clerks and hundreds of
              functionaries within the minor judiciary. This court's rule
_____________________________
(continued…)
             [a]ny person who has been denied a driver's license, whose driver's
             license has been canceled, whose commercial driver's license
             designation has been removed or whose operating privilege has
             been recalled, suspended, revoked or disqualified by the
             department shall have the right to appeal to the court vested with
             jurisdiction of such appeals by or pursuant to Title 42 (relating to
             judiciary and judicial procedure). The appellant shall serve a copy
             of the petition for appeal, together with a copy of the notice of the
             action from which the appeal has been taken, upon the
             department's legal office. 75 Pa. C.S. § 1550(a).



                                               7
      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 769.

       Thereafter, in Pokoy v. Department of Transportation, Bureau
of Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998), a licensee
challenged her suspension that was imposed after the clerk of courts
waited four years to notify PennDOT of her DUI conviction. The
licensee argued that “four years was an unreasonably long delay and
that she has been prejudiced by the delay.” Id. at 1164. We concluded
that a prejudicial delay could be relevant but only where the delay was
attributable to PennDOT. We set up a two-prong test:

             In order for Appellant to successfully challenge
      [PennDOT's] license suspension, she bears the burden of
      establishing: (1) that there was an unreasonable delay
      that was attributable to [PennDOT]; and (2) that the
      delay caused her to believe that her operating privileges
      would not be impaired and that she relied on this belief to
      her detriment.

Id. (emphasis in original). To meet the first prong

      the law is settled that, where [PennDOT] is not guilty of
      administrative delay, any delay caused by the judicial
      system (e.g., the Clerk of Courts) not notifying
      [PennDOT] in a timely manner, will not invalidate a
      license suspension that is authorized by the Code and
      imposed by [PennDOT]. Fordham v. Department of
      Transportation, Bureau of Driver Licensing, 663 A.2d
      868 (Pa.Cmwlth.1995); [and Green]. In determining
      whether there was an unreasonable delay attributable to
      [PennDOT], the relevant time period is that between the
      point at which [PennDOT] receives notice of the driver's
      conviction from the judicial system and the point at
      which [PennDOT] notifies the driver that her license has
      been suspended or revoked. Fordham. In other words,
      only an unreasonable delay by [PennDOT], and not the
      judicial system, invalidates [PennDOT's] license
      suspension.

                                   8
Id. (emphasis added). Because the licensee could not meet the first
prong of the two-part test, this Court upheld the license suspension.

       More recently, in Fruehwirth v. Department of Transportation,
Bureau of Driver Licensing, 51 A.3d 920, (Pa. Cmwlth., 104 C.D.
2012, filed September 7, 2012), a licensee challenged his suspension
for underage drinking. Licensee was charged in 2004, but the charge
was not processed by the magisterial district judge's office until 2011.
Believing he would be subject only to a fine, the licensee did not
attend the hearing and was convicted in absentia. Thereafter, the
licensee learned that this conviction also subjected him to a 90-day
license suspension.

       The trial court sustained the licensee's appeal. The trial court
acknowledged that PennDOT did not cause the delay. Nevertheless, it
concluded that a suspension issued seven years after the conviction
authorized equitable relief. This Court reversed. Again, we confirmed
that PennDOT could not be held liable for a delay it did not cause.

       Also relevant is precedent that has established that the 10-day
deadline for a clerk of court to notify PennDOT of a conviction is
directory, not mandatory. In Department of Transportation, Bureau of
Driver Licensing v. Claypool, 152 Pa. Commw. 332, 618 A.2d 1231
(Pa. Cmwlth. 1992), the clerk did not notify PennDOT of the
licensee's DUI conviction until 23 days after the date of conviction.
Because Section 6323(1)(i) states that the notice “shall” be sent to
PennDOT “within ten days after final judgment of conviction[,]” 75
Pa. C.S. §6323(1)(i), the licensee argued that the clerk's failure to
comply with the statute rendered PennDOT's suspension invalid. We
disagreed.

       We explained distinction between the mandatory and directory
use of the word “shall” as follows:

      To hold that a provision is directory rather than
      mandatory, does not mean that it is optional—to be
      ignored at will. Both mandatory and directory provisions
      of the legislature are meant to be followed. It is only in
      the effect of non-compliance that a distinction arises. A
      provision is mandatory when failure to follow it renders
      the proceedings to which it relates illegal and void; it is


                                   9
             directory when the failure to follow it does not invalidate
             the proceedings.

      Claypool, 618 A.2d at 1232-33 (quoting Pleasant Hills Borough v.
      Carroll, 182 Pa. Super. 102, 125 A.2d, 466, 469, 48 Mun. L Rep. 182
      (Pa. Super. 1956) (emphasis in original)). A license suspension for
      DUI convictions promotes health and safety. We concluded that this
      important sanction could not turn on the actions of “court clerks
      throughout the Commonwealth.” Id. at 1233. Citing Green, 546 A.2d
      at 769, we explained, further, that PennDOT has no ability to
      supervise court clerks. Accordingly, we sustained the license
      suspension notwithstanding the clerk's delay in reporting the licensee's
      conviction.

Smires, 126 A.3d 388-90.

      On review of licensees’ claims and the preliminary objections, the Smires’
court concluded that licensees did not demonstrate a clear legal right to relief, a
prerequisite to mandamus. The Court did not decide the merits of licensees' legal
claims because it concluded that they should be resolved in their respective
statutory appeals.


             Licensees may challenge their suspensions for any
             reason, including the Clerk's delay in reporting them to
             PennDOT. Unfortunately for Licensees, the precedent
             has established that PennDOT cannot be faulted for
             delays not within its control. Simply because the case law
             is not in Licensees' favor does not mean they are entitled
             to more than their statutory appeal. It does mean they do
             not have a clear right to relief. Mandamus does not lie
             where the petitioner has another appropriate and adequate
             remedy, which Licensees have in the statutory appeal.
             This is the appropriate vehicle by which Licensees can
             raise all of their constitutional and statutory claims.
             Licensees' statutory appeal includes appellate review.
             In sum, the statutory appeal is the vehicle by which they
             can challenge their license suspensions.



                                         10
Id. (footnote deleted).
      It thus is well established that only delays attributable to the Department
may constitute cause to invalidate a suspension imposed pursuant to 75 Pa. C.S.
§ 1532(c). It is equally well established that the remedy for one aggrieved by a
suspension of her operating privilege is an appeal to common pleas as provided at
75 Pa. C.S. § 1550(a).
      Turning to the instant matter, Gingrich availed herself of her statutory
remedy. While she was able to show prejudice due to the nearly ten-year delay
between her conviction and the Department’s notice of suspension, the body of
case law outlined in Smires controlled the outcome where the delay was
attributable to the York County Clerk of Courts and not to the Department. On
appeal here, Gingrich raises due process and fairness issues similar to those we did
not reach in Smires because of the procedural vehicle in which they came before
us.
      As noted above, the 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.
Where a conviction is not reported for an extraordinarily extended period of time,
the licensee has a lack of further violations for a significant number of years before
the report is finally sent, and is able to demonstrate prejudice, it may be
appropriate for common pleas to grant relief.



                                         11
      Here, the record shows that Gingrich’s 2004 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. The
record further shows that Gingrich’s license was suspended due to her 2006
conviction and subsequently reinstated in 2010, that she installed an ignition
interlock on her vehicle, and that she renewed her license in 2013. Since her last
brush with the law, Gingrich has earned an associate’s and a bachelor’s degree,
married, and obtained employment as an inspector with the United States
Department of Agriculture that requires her to drive to various farms to perform
her inspections. She also has a five-year-old daughter whom she drives to school.
She testified credibly that the additional suspension here at issue, had she known
about it over the period since her license was reinstated, would have impacted her
decisions regarding marriage and where her daughter attends school, and that if the
suspension is not vacated, she likely will lose her job. As we noted earlier, the
Department does not dispute that Gingrich met her burden to show prejudice.
      Based on the record before common pleas, we conclude that the
extraordinary delay in reporting Gingrich’s 2004 conviction that resulted in a gap
of ten years between her conviction and 2014 suspension, combined with her lack
of additional issues since her last conviction in 2006 and her showing of prejudice,
has created a circumstance where the 2004 suspension has lost the underlying
public safety purpose and now simply is a punitive measure sought to be imposed
too long after the fact. We reiterate that the general rule remains that only delays
attributable to the Department may be vacated. However, where, as here, a licensee
is able to demonstrate all of the following: a conviction that is not reported for an




                                         12
extraordinarily extended period of time7; the licensee has a lack of further issues
for an extended period; and prejudice, it may be appropriate for common pleas to
grant relief. As we find that the record demonstrates the limited extraordinary
circumstances outlined above, we will grant the requested relief.




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Judge


Judge Leavitt concurs in result only.




    7
      We will not impose a bright line as to what constitutes an extraordinarily extended period
of time, but the nearly ten-year delay in this matter meets the test.



                                              13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jaclyn Gingrich,                       :
                        Appellant      :
                                       :
                   v.                  :     No. 748 C.D. 2015
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                    ORDER


            AND NOW, this 30th day of March, 2016, the April 24, 2015 Order
of the Court of Common Pleas of Cumberland County is REVERSED, and the
Department of Transportation is ORDERED to vacate Appellant’s suspension.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
