              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Middaugh                                 :
                                                 :
                       v.                        :   No. 815 C.D. 2017
                                                 :   Argued: March 7, 2018
Commonwealth of Pennsylvania,                    :
Department of Transportation,                    :
Bureau of Driver Licensing,                      :
                         Appellant               :



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge




OPINION BY
JUDGE COHN JUBELIRER1                                FILED: October 31, 2018


      In Gingrich v. Department of Transportation, Bureau of Driver Licensing,
134 A.3d 528 (Pa. Cmwlth. 2016) (en banc), we held, premised on arguments raising
issues of due process and fairness, that a delay in reporting a licensee’s conviction
for violating the Vehicle Code,2 even though not attributable to the Department of
Transportation, could be the basis upon which a civil license suspension appeal may
be sustained, if the licensee demonstrates three factors. Id. at 534-35. First, the
licensee must demonstrate that there was an extraordinarily extended delay in the


      1
          This case was reassigned to the author on June 5, 2018.
      2
          75 Pa. C.S. §§ 101-9805.
reporting of the licensee’s conviction. Second, the licensee must demonstrate that
the licensee had no further violations of the Vehicle Code for an extended period.
Third, the licensee must demonstrate that the licensee suffered prejudice as a result
of the delay. Of these factors, the first, whether the non-Departmental delay
constitutes an extraordinarily extended period of time, has become the focus of many
appeals based on Gingrich, including the one before us now. Applying the Gingrich
factors, the Court of Common Pleas of Delaware County (common pleas) sustained
the appeal of Steven Middaugh (Licensee) of his one-year license suspension, which
was based upon his conviction for driving under the influence (DUI).                     The
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (Department) has appealed common pleas’ Order, arguing common pleas
misapplied the first Gingrich factor.
       It is undisputed that civil license suspensions play a vital role in protecting the
safety of the traveling public by removing from the roads drivers who have violated
the Vehicle Code.3 The Department is responsible for imposing these license
suspensions when it is informed that a licensee has been convicted of a qualifying
offense. Section 3804(e)(1) of the Vehicle Code, 75 Pa. C.S. § 3804(e)(1); Dep’t of
Transp., Bureau of Driver Licensing v. Green, 546 A.2d 767, 769 (Pa. Cmwlth.
1988), aff’d, 569 A.2d 350 (Pa. 1990). When a licensee has challenged a license
suspension claiming that it was not imposed timely, this Court historically
overturned the suspension only when an unreasonable delay was attributable to the
Department. See, e.g., Pokoy v. Dep’t of Transp., Bureau of Driver Licensing, 714
A.2d 1162, 1164 (Pa. Cmwlth. 1998) (stating that only a delay attributable to the

       3
        Civil license suspensions are imposed for DUI and certain violations of The Controlled
Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S.
§§ 780-101 – 780-144.


                                              2
Department that causes the licensee to believe, to his or her detriment, that his or her
operating privilege will not be suspended supports invalidating a license
suspension). However, in Gingrich, this Court recognized that an extraordinary
delay in imposing a suspension, though not attributable to the Department, could
result in the license suspension losing its “underlying public safety purpose” and
become “a punitive measure sought to be imposed too long after the fact.” Gingrich,
134 A.3d at 535.
       Here, following a hearing, common pleas applied the Gingrich factors and
held that Licensee met the burden of proving his license suspension fell within
Gingrich. On appeal, the Department challenges common pleas’ conclusion that the
2-year, 4-month delay in the Delaware County Office of Judicial Support’s (OJS)
reporting the conviction to the Department constituted an “extraordinarily extended
period of time” when compared to the 10-year delay at issue in Gingrich.4
(Department’s Brief (Br.) at 9 (quoting Gingrich, 134 A.3d at 534).) After review,
we agree with common pleas that OJS’s 2-year, 4-month delay in reporting
Licensee’s conviction to the Department meets the first factor of the Gingrich test.
Therefore, we affirm common pleas’ sustaining of Licensee’s appeal.


                                    I.     Background
       On September 7, 2013, Licensee was arrested for DUI in violation of Section
3802(a)(2) of the Vehicle Code, 75 Pa. C.S. § 3802(a)(2), to which he pled guilty on
March 31, 2014. OJS, which performs the duties of the clerk of court in Delaware



       4
         The Department does not challenge common pleas’ conclusion that Licensee satisfied the
other two factors of the Gingrich test.



                                              3
County,5 did not electronically notify the Department of Licensee’s conviction until
2 years, 4 months later, on August 8, 2016. By letter dated August 23, 2016, the
Department advised Licensee that his license would be suspended for one year
pursuant to Section 3804(e) of the Vehicle Code6 based upon the March 31, 2014
conviction. Licensee appealed the suspension to common pleas, asserting that,
pursuant to Section 6323(1)(i) of the Vehicle Code, 75 Pa. C.S. § 6323(1)(i), OJS
was to notify the Department of his conviction within 10 days, but this notification


       5
         Section 425 of the Delaware County Home Rule Charter (Charter), which was adopted
on May 20, 1975, and became effective on January 1, 1976, provides that the Delaware County
Council (County Council)

       shall establish an Office of Judicial Support which shall combine the offices of
       Clerk of Courts and Prothonotary. Except as otherwise provided in this Charter,
       the Office of Judicial Support shall have all the powers and duties granted by
       Commonwealth law, by laws applicable to Counties of the Second Class A for
       Clerks of Court and Prothonotaries, by this Charter or by ordinance of Council.

Delaware Cty. Home Rule Charter § 425. Pursuant to Section 412 of the Charter, the “offices . . .
established under this Charter fall under the appointive authority of Council and include entities
formerly supervised by the Board of Commissioners or formerly but no longer elected as
independent offices.” Delaware Cty. Home Rule Charter § 412. Section 408(l) of the Charter
authorizes the County Council “[t]o appoint . . . [the] heads of departments falling under the direct
supervision of the Council . . . .” Delaware Cty. Home Rule Charter § 408(l). Thus, in Delaware
County, the OJS performs the duties of the county clerk of court and county prothonotary, is under
the authority of the County Council, and the head of OJS is appointed by County Council. This
differs from other counties where the county clerk of court and county prothonotary are elected
officials, answerable to the electorate. See Section 1301 of the Second Class County Code, Act of
July 28, 1953, P.L. 723, 16 P.S. § 4301; Section 401 of The County Code, Act of August 9, 1955,
P.L. 323, as amended, 16 P.S. § 401. Whether elected or appointed, these officials’ duties are
outlined in Chapter 27 of the Judicial Code, 42 Pa. C.S. §§ 2701-2757, and in other statutes,
including the Vehicle Code, which are applicable to OJS pursuant to Section 425 of the Charter.
        6
           Section 3804(e)(1) and (2) provide, in relevant part, that “[t]he [D]epartment shall
suspend the operating privilege [(license)] of an individual” for a period of “12 months for an
ungraded misdemeanor or misdemeanor of the second degree” when the Department receives a
certified record of a licensee’s conviction for violating Section 3802 of the Vehicle Code. 75 Pa.
C.S. § 3804(e)(1), (2).


                                                 4
did not occur for approximately 860 days. (Reproduced Record (R.R.) at 7a.) This
delay, he argued, was “fundamentally unfair and greatly prejudicial” under the
circumstances. (Id.)


                    II.    Proceedings Before Common Pleas
      Common pleas held a de novo hearing on Licensee’s appeal. The Department
presented certified copies of Licensee’s driving record and the March 31, 2014
conviction, which were admitted into evidence. The Department then rested its case.
      Licensee testified and presented documentary evidence. Licensee agreed he
was arrested for DUI on September 7, 2013, and pled guilty to that charge on March
31, 2014. At the time of his conviction, Licensee resided with his wife and was
employed as an IT professional. (Common Pleas 1925(a) Opinion (1925(a) Op.) at
2.) By the time of the hearing, Licensee was divorced, lived alone, and was
unemployed due to a disabling neurological disorder with which he was diagnosed
in 2013 or 2014 and which had worsened. Licensee began receiving total disability
benefits in the amount of $1621 per month in May 2016 and has no other income.
Licensee’s neurological disorder requires him to attend many doctors’ appointments,
including a monthly visit to one doctor, to which he must drive. He has no one else
to drive him to those appointments, did not believe his health insurance would cover
transportation, and did not have sufficient funds to use alternate transportation, such
as taxis or Uber. Licensee explained he was aware of the civil license suspension
when he pled guilty in March 2014, waited to receive that suspension in the mail,
and had no idea why he did not receive one earlier but kept waiting. In anticipation
of his license suspension, Licensee delayed purchasing a new vehicle to replace his
prior vehicle, which had been wrecked in a 2013 accident.



                                          5
       Common pleas credited Licensee’s testimony. (Common Pleas May 19, 2017,
Findings of Fact ¶ 30.) Common pleas then applied the Gingrich test to the credited
testimony. First, common pleas found that the 2-year, 4-month delay was an
extraordinarily extended period of time for Licensee’s conviction to have been not
reported. Second, Licensee did not have “any further violations for a significant
number of years.” (Id. ¶ 32.) Third, common pleas found Licensee demonstrated
prejudice if the license suspension was to be imposed at that late date. Pursuant to
Gingrich, common pleas, therefore, sustained Licensee’s appeal and reinstated his
license.
       The Department appealed, and common pleas directed it to file a Statement of
Errors Complained of on Appeal (Statement) pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b).7 In its Statement,
the Department argued common pleas erred in sustaining Licensee’s appeal because:
it met its burden of proving Licensee’s conviction of a crime that required a license
suspension; the 2-year, 4-month delay was not chargeable to the Department and,
therefore, did not support granting the appeal; and this delay did not qualify for relief
under the Gingrich test.
       In its responsive opinion, common pleas concluded that, because its decision
was supported by Gingrich, the Department’s first two arguments did not require a
different result. Common pleas explained there was no dispute that Licensee was

       7
           Rule 1925(b) states:

       If the judge entering the order giving rise to the notice of appeal (“judge”) desires
       clarification of the errors complained of on appeal, the judge may enter an order
       directing the appellant to file of record in the trial court and serve on the judge a
       concise statement of the errors complained of on appeal (“Statement”).

Pa.R.A.P. 1925(b).


                                                6
convicted of a crime that required the suspension of his license. However, if
Gingrich applied, Licensee did not have to prove that the delay was chargeable to
the Department. (1925(a) Op. at 5-6.) Reviewing Gingrich, common pleas held it
was applicable to Licensee’s situation and found that the second (no further
violations) and third (prejudice) factors of the Gingrich test were satisfied. In regard
to the prejudice factor, common pleas pointed to the changes in Licensee’s medical
and employment situations, as well as to the fact that Licensee delayed purchasing a
new vehicle while he waited to receive a notice of suspension. (Id. at 7.)
      As to the first factor (length of the delay), common pleas rejected the
Department’s position that Gingrich was inapplicable because the length of the delay
here was not the same as the 10 years in Gingrich. It explained the Department was
relying on prior precedent, requiring that a delay be chargeable to the Department to
support the grant of an appeal, (id. (citing Pokoy, 714 A.2d 1162)), rather than on
Gingrich, which established no specific time or bright line for the length of the
requisite delay. In determining whether OJS’s delay in notifying the Department
was an extraordinarily extended period of time, common pleas sought “guidance as
to what [was] reasonable.” (Id. at 10.) It found guidance in Section 6323(1)(i) of
the Vehicle Code, which “statutorily required” OJS “to report the conviction to [the
Department] ‘within ten days after final judgment of conviction.’” (Id. (quoting 75
Pa. C.S. § 6323(1)(i)).) Common pleas concluded:

      [u]nder Gingrich, . . . , it is not objectively reasonable for the DL-21
      Form to be submitted two years later when OJS is required to submit
      this form within ten days after the conviction. Using the objective
      standard of the ten[-]day period, a two[-]year delay would not be
      reasonable. How long should a licensee be expected to put his or her
      life on hold? . . . Because of the inattentiveness of [OJS], [Licensee]
      will suffer additional punishments . . . .
                                           ***


                                           7
       Regardless [of] whether [the Department] or OJS is responsible for the
       delay, prejudice to the licensee may result . . . . Both [the Department]
       and the judicial system have an obligation to provide notice of
       suspension in a reasonable amount of time because a licensee should
       not have to put his or her life on hold waiting to find out whether he or
       she can drive in the future . . . .
                                           ***
       [The Department] seeks to punish [Licensee] two years and [four]
       months later because OJS failed to perform its duty under the law.
       [Common pleas] found that under these factual circumstances,
       [Licensee’s] suspension is not in the interest of protecting the public,
       but rather will be an additional punishment to be imposed years later
       based upon a clerical error by no fault of his own. . . .

(1925(a) Op. at 10-11 (emphasis added).) For these reasons, common pleas asserted
it committed no error in granting Licensee’s appeal and reinstating his license.


                       III.    The Parties’ Arguments on Appeal
       On appeal,8 the Department argues common pleas erred in sustaining the
appeal because the 2-year, 4-month delay caused by OJS was not for an
extraordinarily extended period of time as required by Gingrich. Therefore, the
Department asserts, Gingrich is inapplicable and the general rule that only an
unreasonable delay chargeable to the Department should apply. Because the delay
here was not attributable to the Department, it argues common pleas should have
denied Licensee’s appeal. The Department argues this general rule was reaffirmed
in Gingrich, and the extraordinary circumstances that led this Court to deviate from
that rule in Gingrich are not present here.


       8
           Our review of common pleas’ “decision in a license suspension case is limited to
determining whether [common pleas’] findings of facts are supported by competent evidence and
whether [common pleas] committed an error of law or . . . abuse[d its] . . . discretion in reaching
its decision.” Orloff v. Dep’t of Transp., Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa.
Cmwlth. 2006) (citation omitted).


                                                8
      Licensee responds that common pleas correctly found that the 2-year, 4-month
delay here is the type of limited extraordinary circumstance justifying relief under
Gingrich. Noting that the Department does not dispute that he satisfied the other
two factors of the Gingrich test, Licensee asserts common pleas properly sustained
his appeal because he met all three criteria set forth in Gingrich. The Department’s
citation to Pokoy and other precedent holding that only unreasonable delays
chargeable to it can support the grant of an appeal, Licensee argues, is an attempt to
minimize Gingrich’s holding that delays not attributable to the Department can be
the basis of granting a licensee relief. Licensee maintains common pleas thoroughly
reviewed his case, analyzed the principles set forth in Gingrich, and, exercising its
discretion, held that Licensee’s appeal should be granted. Common pleas’ decision,
Licensee argues, was not in error or an abuse of discretion and, therefore, should be
affirmed.




                                 IV.    Discussion
      We begin our analysis with an examination of the provisions of the Vehicle
Code regarding civil license suspensions and the reporting of the convictions that
lead to those suspensions. We then review the evolution of the case law regarding
the treatment of delays in civil license suspension appeals, ending with this Court’s
recent en banc decision in Gingrich. Finally, we consider whether, under these
factual circumstances, common pleas erred in concluding that granting Licensee
relief from the delayed suspension of his license was appropriate under Gingrich.


                            A. The Statutory Framework



                                          9
          We first examine the statutory framework, which informs our analysis.
Section 6323(1)(i) of the Vehicle Code sets out the responsibility of the local clerk
of courts to send a record of the conviction to the Department within 10 days after
the conviction as follows:

          (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), [as amended, 35 P.S.
          §§ 780-101 – 780-144], known as The Controlled Substance, Drug,
          Device and Cosmetic Act [(Drug 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) (emphasis added). In this case, pursuant to Section 425 of
the Delaware County Home Rule Charter, OJS performs the duties of the clerk of
courts. Delaware Cty. Home Rule Charter § 425. Therefore, OJS bears the statutory
responsibility to send conviction records from Delaware County to the Department
in accordance with the Vehicle Code.             Section 6323 establishes a statutory
obligation on the clerk of court, and therefore, here OJS, to send a record of
judgment of conviction under the Vehicle Code or the Drug Act to the Department
within 10 days of the conviction. This 10-day reporting period is evidence of the
General Assembly’s intent that convictions resulting in a mandatory civil license
suspension be promptly reported to the Department.
          Section 3804(e) of the Vehicle Code sets out the Department’s responsibility
to suspend licenses for different lengths of time, depending on the severity of the
licensee’s offense, and any prior offenses. Section 3804(e)(1) of the Vehicle Code
states:




                                            10
       [t]he department shall suspend the operating privilege of an individual
       under paragraph (2) [(setting forth the periods of suspension)] upon
       receiving a certified record of the individual’s conviction of or an
       adjudication of delinquency for:

               (i)     an offense under section 3802; or
               (ii)    an offense which is substantially similar to an offense
                       enumerated in section 3802 reported to the department
                       under Article III of the compact in section 1581 (relating
                       to Driver’s License Compact).[9]

75 Pa. C.S. § 3804(e)(1). First time DUI offenders guilty of more serious offenses,
and those with prior offenses, are required to serve license suspensions of 6 months,
12 months, or 18 months, depending on their offense and the presence of aggravating
circumstances, such as a minor being in the vehicle or the occurrence of an accident
that resulted in property damage, injury, or death. See Sections 3802, 3803, and
3804(a) and (e) of the Vehicle Code, 75 Pa. C.S. §§ 3802 (describing the various
types of DUI offenses), 3803 (setting forth the grades of DUI offenses), and 3804(a)
and (e) (establishing the penalties for DUI offenses).10 Under these provisions,

       9
          Section 1581 of the Vehicle Code, 75 Pa. C.S. § 1581.
       10
           For example, a six-month suspension is imposed upon the Department’s receipt of a
certified record of a consent decree under the Juvenile Act, 42 Pa. C.S. §§ 6301-6375, based on a
violation of Section 3802. 75 Pa. C.S. § 3804(e)(v). A 12-month license suspension is imposed
for a DUI that is an ungraded misdemeanor, which includes an offender with one prior offense and
who can be sentenced to a term of imprisonment for not more than 6 months, a first time DUI
offender where there is an accident that causes bodily injury or death of any person or damage to
a vehicle or other property, or an offender with no prior offense who violates Section 3802(c)
(highest rate of alcohol - .16% or higher) or (d) (controlled substances). 75 Pa. C.S. §§ 3803(a)(1),
(b)(1), (b)(2), 3804(e)(2)(i). A misdemeanor of the second degree, which includes an offender
who has more than one prior offense violating Section 3802(a) (general impairment), will also
result in a 12-month suspension. 75 Pa. C.S. §§ 3803(a)(2), 3804(e)(2)(i). An 18-month
suspension is imposed for an offender who commits a misdemeanor of a first degree, which
includes those with more than one prior offense and where there is an accident that causes bodily
injury or death of any person or damage to a vehicle or other property, or has a high rate (.10% to
.16%) or highest rate (16% or higher) of alcohol concentration in their blood or breath, or is a



                                                11
where an offender’s actions are considered more harmful to the public, whether
through multiple offenses, having a higher rate of alcohol concentration, having a
minor in the vehicle, or being involved in an accident causing property damage,
injury or death, the offender’s license suspension becomes longer in length. Through
the imposition of longer suspension periods, repeat offenders and those who commit
more serious offenses are kept off the roads and away from the traveling public for
longer periods of time.
       These two sections of the Vehicle Code impose complementary statutory
obligations on the clerks of court, to send notice of conviction to the Department
within 10 days, and on the Department, to suspend the license for the requisite period
upon receipt of the notice of conviction. Our courts have interpreted these Vehicle
Code provisions as evidencing the General Assembly’s intent to “keep unsafe
drivers off the highways for stated periods” of time, Green, 546 A.2d at 769, in order
to protect “the traveling public,” Chappell v. Commonwealth, 430 A.2d 377, 379
(Pa. Cmwlth. 1981). This intent is effectuated by suspending the licenses of
dangerous drivers and doing so quickly – in temporal proximity to the offense that
created the safety concern. To fulfill the General Assembly’s intent, both the
Department and the clerks of court must promptly perform their statutory
obligations; if there is a delay by either of them, the result is the same – the unsafe
driver will not be removed from the road timely.


                         B. Approaches to Delayed Suspensions
       When there is a delay attributable to the Department, a licensee has long been
able to challenge a license suspension by proving two factors: (1) that there was an

minor whose alcohol concentration is .02% or higher, or the offender violates Section 3802 where
a minor under the age of 18 was in the vehicle. See 75 Pa. C.S. §§ 3803(b)(3)-(5), 3804(e)(2)(ii).


                                               12
unreasonable delay in imposing the suspension; and (2) the delay caused the licensee
to believe that his or her license would not be suspended, upon which the licensee
relied to his or her detriment. Pokoy, 714 A.2d at 1164. This two-factor test, initially
developed by the Superior Court when it originally heard these appeals, continued
to be applied by this Court after 1970.                   For example, in Department of
Transportation v. Hosek, 284 A.2d 524, 525, 527 (Pa. Cmwlth. 1971), we held the
court of common pleas reasonably exercised its discretion in setting aside the license
revocation based on the “egregious” 16-month delay and the fact that the licensee
established “[h]e was clearly prejudiced by the [Department’s] failure to act as the
law provided.” Id. at 527 (emphasis added).
       Thus, delays attributable to the Department have long been addressed with
this two-factor test. This Court has explained the reasons as being 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.]

Green, 546 A.2d at 769.11




       11
          In applying this test, we have held that delays by the Department as short as eight months
were unreasonable and sufficient to sustain a license appeal. Bennett v. Dep’t of Transp., Bureau
of Driver Licensing, 642 A.2d 1139, 1141-42 (Pa. Cmwlth. 1994) (the licensee believed, based on
the delay, that no license suspension would occur and relied upon that belief to his detriment by
obtaining employment that required a license where previously the licensee had been
unemployed).


                                                13
      However, the courts did not analyze delays by clerks of court in reporting
convictions in the same manner as delays by the Department. Although Section
6323(1)(i) does contain a 10-day reporting requirement, there was concern that
strictly enforcing this requirement by invalidating license suspensions that were not
reported within 10 days would undermine public safety. This Court, in Chappell,
therefore interpreted the Vehicle Code to exclude non-Departmental delays as
grounds upon which a licensee could challenge a license suspension. The delay at
issue in Chappell was two months long, during which time the licensee was already
serving a separate license suspension.     430 A.2d at 378.      We held that “the
Department’s power, indeed duty, to suspend [the licensee’s] license for drunken
driving should [not] be cancelled out by reason of a clerk of court’s inattention to
duty.” Id. at 379. “We s[aw] no reason why we should visit the sins of the court
clerks upon the traveling public whom the suspension was meant to protect.” Id.
We, therefore, affirmed the denial of the licensee’s appeal from the suspension of
his license.
      Relying on Chappell, this Court subsequently construed the term “shall,” as
used in the 10-day reporting requirement, to be directory, not mandatory. Dep’t of
Transp., Bureau of Driver Licensing v. Claypool, 618 A.2d 1231, 1232-33 (Pa.
Cmwlth. 1992) (concluding that Section 13(m) of the Drug Act, 35 P.S. § 780-
113(m), which imposes a similar 10-day reporting period for Drug Act convictions,
was directory and that the 23-day delay there would not invalidate the Department’s
power to suspend the license of the convicted licensee). We explained that this
interpretation “protects the vehicle safety laws from vulnerability [due] to delays
within a system where detection and correction of official failure would be much
more difficult.” Id. at 1233 (quoting Green, 546 A.2d at 769). However, we



                                         14
indicated that, even though the 10-day requirement was being construed as directory,
this did “not mean that it is optional – to be ignored at will.” Id. (quoting Pleasant
Hills Borough v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956)). A directory
provision, we explained, must still be followed, but the effect of the noncompliance
with that provision would not invalidate the proceedings. Id.
       Thus, over the years, these two complementary statutory provisions, one
imposing a reporting duty on the clerk of courts and one imposing a duty on the
Department to suspend a driver’s license, have been interpreted very differently by
the Court based on a concern about public safety. Accordingly, in license suspension
appeals, the Court did not consider any delay caused by an entity other than the
Department, regardless of its length. Pokoy, 714 A.2d at 1164 (delay of nearly four
years not attributable to the Department insufficient under Green to invalidate a
license suspension); Green, 546 A.2d 768-69 (collecting cases applying Chappell to
varying lengths of non-Departmental delay).               However, as time has passed,
technology has made it easier both to transmit the notice of convictions to the
Department,12 as well as to detect and correct any delays.


                                        C. Gingrich
       In Gingrich, this Court was faced with a 10-year non-Departmental delay.
The licensee in Gingrich was convicted of DUI in 2004, but the clerk of courts did
not report that conviction to the Department until 2014, 10 years later. The
Department suspended her license in 2014 for one year based on the 2004


       12
          For example, pursuant to Pennsylvania Rule of Criminal Procedure 771(A),
Pa.R.Crim.P. 771(A), the dispositions of charges required to be transmitted to the Department by
Section 6323 of the Vehicle Code now must be done electronically on a form prescribed by the
Department.


                                              15
conviction, and the licensee appealed. During those 10 years, the licensee had
another DUI violation in 2006 and a license suspension for a chemical test refusal.
Her license was restored, with the installation of an ignition interlock in 2010, and
she renewed her license in 2013. Also during those 10 years, the licensee earned
multiple degrees, got married, and had a daughter who, in 2014, was five years old
and attended a school to which the licensee had to drive her. The licensee explained
that, had she known that a suspension could still occur in 2014 based on the 2004
conviction, her decisions to get married and where her daughter attended school
would have been affected. She further explained that her job as an inspector for the
United States Department of Agriculture required her to drive in order to inspect
processing plants, and if her suspension was not vacated, she would likely lose her
job. Common pleas dismissed her appeal and upheld the license suspension, but
suggested to this Court that it “clarify, if not modify, its prior holdings to take into
consideration what [it] would perceive to be a patent denial of due process.”
Gingrich, 134 A.3d at 530 (quotation omitted) (emphasis added).
       In considering the licensee’s appeal, we acknowledged our precedent which
interpreted Section 6323(1)(i)’s 10-day reporting requirement as directory not
mandatory, and which applied the two-factor test only to delays attributable to the
Department. However, we noted that the licensee, in Gingrich, had raised due
process and fairness issues that had not been reached previously.13 We concluded

       13
          Previously, in Smires v. O’Shell, 126 A.3d 383, 386-87 (Pa. Cmwlth. 2015), a group of
licensees challenged, on due process grounds, the suspension of their licenses, which had been
delayed by a clerk of courts not reporting their convictions to the Department for 5 to 10 years.
However, this Court did not consider those arguments due to the procedural posture of that case,
which was filed as a mandamus action, indicating that the constitutional challenges should be
raised in context of a statutory appeal of the license suspension. Id. at 394. Gingrich was a
statutory appeal from the suspension of Gingrich’s license and, therefore, the Court addressed the



                                               16
that, while the general rule described in Pokoy that only delays attributable to the
Department should be considered in license suspension appeals, there are
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.” Gingrich, 134 A.3d at 534. In these
situations, common pleas could grant relief based on a non-Departmental delay.
We described those extraordinary circumstances as:

       [w]here . . . a licensee is able to demonstrate all of the following: a
       conviction that is not reported for an extraordinarily extended period of
       time; the licensee has [no further violations of the Vehicle Code] for an
       extended period; and prejudice, it may be appropriate for common pleas
       to grant relief.

Id. at 534-35. We thus applied a three-factor test, similar to the two-factor test
applied to delays attributable to the Department. Both tests require the licensee to
establish a delay and prejudice by that delay. However, the Gingrich test modified
the extent of the delay, requiring the delay to be for an extraordinarily extended
period of time, and added a third factor, which expressly takes into account public
safety by considering whether the licensee had further violations of the Vehicle Code
during the delay.
       We indicated, in Gingrich, that this test was to be applied by courts of
common pleas on a case-by-case basis to determine whether relief was appropriate.
Applying this standard to the facts in Gingrich, we held the record established that
the circumstances warranted the grant of the relief requested. In doing so, we
concluded the nearly 10-year delay met the requirement that the delay be for an


due process and fairness claims raised in that appeal similar to those raised, but not reached, in
Smires. Gingrich, 134 A.3d at 534.


                                               17
extraordinarily extended period of time. Id. at 535 n.7. Although not expressly
stated in Gingrich, implicit in our holding was a due process consideration when a
license suspension no longer serves to protect the public but is an additional
punishment imposed too long after the licensee’s conviction.
       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.14
In those cases, this Court concluded the suspensions had lost their public purpose
and it was appropriate for the courts of common pleas to have granted relief.
However, we also have reversed the grant of a license suspension appeal, holding




       14
          See DeGrossi v. Dep’t of Transp., Bureau of Driver Licensing, 174 A.3d 1187 (Pa.
Cmwlth. 2017) (2 years and 7 months); Gifford v. Dep’t of Transp., Bureau of Driver Licensing,
172 A.3d 727 (Pa. Cmwlth. 2017) (2 years and 7 months), petition for allowance of appeal granted,
(Pa., No. 797 MAL 2017, filed Apr. 25, 2018); Capizzi v. Dep’t of Transp., Bureau of Driver
Licensing, 141 A.3d 635 (Pa. Cmwlth. 2016) (7 years and 10 months); Quatrini v. Dep’t of Transp.,
Bureau of Driver Licensing (Pa. Cmwlth., No. 427 C.D. 2017, filed Nov. 30, 2017) (2 years and 4
months); Eckenrode v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 168 C.D.
2015, filed July 14, 2016) (9 years); Orwig v. Dep’t of Transp., Bureau of Driver Licensing (Pa.
Cmwlth., No. 286 C.D. 2015, filed June 3, 2016) (10 years). Unreported decisions of this Court
may be cited for their persuasive value. Section 414(a) of the Internal Operating Procedures of
the Commonwealth Court, 210 Pa. Code § 69.414(a).



                                               18
that a non-Departmental delay of five months was not an extraordinarily extended
period of time and Gingrich was inapplicable.15


                    D. Application of Gingrich to Licensee’s Appeal
         The Department’s challenge to common pleas’ determination that 2 years and
4 months could meet the Gingrich standard reflects its position that Gingrich should
be narrowly applied only to facts that closely match those at issue in that case. The
Department maintains that “[e]xcept . . . [in] the ‘limited extraordinary
circumstances outlined’ in Gingrich,” a non-Departmental delay is not grounds for
granting a license suspension appeal. (Department’s Br. at 23 (emphasis added).)
In so arguing, the Department apparently asserts that the period of time against
which all delays should be measured is based on Gingrich, which had a delay of 10
years.
         In determining whether the delay here met the first factor in Gingrich,
common pleas looked to Section 6323(1)(i) of the Vehicle Code for guidance as to
what a reasonable period of time would be for OJS to report a conviction to the
Department and whether the report here fell within that period. It concluded that
when measured against the objective 10-day reporting requirement found in that
section of the Vehicle Code, the 2-year, 4-month delay was objectively unreasonable

         15
           Nercesian v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 1795 C.D.
2016, filed June 12, 2017). Additionally, this Court has held that even where there was a delay in
reporting a conviction to the Department, Gingrich is not applicable if the licensee does not prove
the other two factors of that test. See Janes v. Dep’t of Transp., Bureau of Driver Licensing (Pa.
Cmwlth., No. 369 C.D. 2017, filed Oct. 24, 2017) (licensee had an intervening violation of the
Vehicle Code during the approximately one-year, six-month delay in reporting his first conviction
for violating the Vehicle Code and, therefore, the public protection purpose was still met by the
suspension of his license); Currie v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth.,
No. 1819 C.D. 2015, filed Apr. 22, 2016) (licensee did not establish he was prejudiced by the delay
and, therefore, the Court did not reach the other factors).


                                               19
and met the Gingrich test. Because judicial opinions should be tethered to the
statutes they interpret and apply, it is appropriate to consider the Vehicle Code’s 10-
day reporting requirement in determining whether a non-Departmental delay
qualifies as an extraordinarily extended period of time for Gingrich purposes.
      The Department argues Section 6323(1)(i) should not be considered at all due
to the public safety reasons expressed in Chappell. We disagree with the Department
for two reasons. First, we note that what began as a 2-month delay in Chappell, and
a 14-month delay in Green, has evolved into sanctioned periods of delay of 17
months, 2 years, 4 years, and 7 years, with no recourse to licensees whose license
suspensions were delayed by a non-Departmental “inattention to duty.” Chappell,
430 A.2d at 379; see Pokoy, 714 A.2d at 1164 (4-year delay); Green, 546 A.2d 768-
69 (collecting cases applying Chappell to varying lengths of non-Departmental
delay); Fruewirth v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No.
104 C.D. 2012, filed Sept. 7, 2012), slip op. at 2, 7 (7-year delay).
      Second, construing the 10-day period as directory does not mean that we
should not consider it at all and give no effect to Section 6323(1)(i). The effect of
holding that a statutory “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.” Gingrich, 134 A.3d at 533
(emphasis added) (quotation omitted). While the failure to follow a directory
provision does not render the proceedings void, id., it does not require the Court to
totally disregard that provision. The General Assembly has imposed a time frame
during which convictions are to be reported to the Department and, if Section
6323(1)(i) is ignored, as the Department urges, we essentially rewrite the Vehicle
Code, which we may not do. Commonwealth v. Scolieri, 813 A.2d 672, 678 (Pa.



                                          20
2002) (stating “appellate courts should [not] act as an editor for the General
Assembly”). Accordingly, this 10-day period should not be ignored, as it reflects
the General Assembly’s intent, expressed through this statutory requirement, that
convictions be promptly reported to the Department to allow for the timely removal
of an unsafe driver from the road. The 10-day period provides an objective criterion
in determining whether the first Gingrich factor is met. That is what common pleas
perceptively did in this case.
       In Green, this Court assumed that allowing the sanction of a license
suspension to be “dependent upon scores of court clerks and hundreds of
functionaries within the minor judiciary” would result in these laws becoming
vulnerable. 546 A.2d at 769. We note that these delays in notifying the Department
continue to persist and appear to have lengthened, without remedy to the licensee or
consequence to those responsible for the delays. If the public safety is protected
when unsafe drivers are kept off the road and sanctioned by the loss of their driving
privileges, then timely notification to the Department of convictions, rather than
excusing untimely notifications, will better protect the public. Thus, detecting and
correcting the court clerks’ “inattention to duty,” Chappell, 430 A.2d at 379, rather
than allowing it to continue unabated, will better satisfy the public purpose of
removing unsafe drivers from the roads as soon as possible. The General Assembly
recognized this by enacting a 10-day reporting requirement.16
       The General Assembly also has specified the periods of time during which
licensees can anticipate having their licenses suspended based on convictions for

       16
          An added benefit to considering the 10-day reporting period is that the longer the delay
between the conviction and the license suspension, the more likely the licensee will have changed
his or her circumstances and would suffer prejudice. Thus, requiring the timely reporting of
convictions to the Department reduces the chance that a licensee would experience atypical
prejudice as a result of a delayed license suspension.


                                               21
violating the Vehicle Code. Those periods, 6 months, 12 months, and 18 months,
are set forth in Section 3804(e) of the Vehicle Code. As previously discussed, the
length of suspension increases based on the seriousness of the underlying offense,
the presence of aggravating circumstances, and whether the offender was a repeat
offender. See 75 Pa. C.S. §§ 3802, 3803, 3804(a) and (e). The imposition of longer
periods of suspension for repeat offenders and those who commit more serious
offenses promote public safety by keeping those who pose a greater risk to the safety
of the traveling public off the roads for longer periods of time. When common pleas
here questioned “[h]ow long should a licensee be expected to put his or her life on
hold” waiting for the imposition of a license suspension, (1925(a) Op. at 10), we
believe it would not be extraordinary for that period to be the anticipated period of
suspension. A licensee should be aware during that time period that a license
suspension is forthcoming. Like the 10-day reporting requirement, the length of the
suspension that would be imposed on the licensee is an objective period of time
during which a licensee would expect to have a license suspension.
       Applying these two objective periods of time set forth by the General
Assembly, we conclude that if 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.17 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. When applied here, common pleas did not err


       17
          We acknowledge that, in Gingrich, the Court declined to set forth a bright line for what
constituted an extraordinarily extended period of time. 134 A.3d at 535 & n.7. But since that
decision, the need for consistency and certainty in Gingrich’s application has resulted in our
adoption of this objective standard.


                                               22
in finding that the 2-year and 4-month delay was an extraordinarily extended period
of time because it exceeded the 1-year license suspension the Department sought to
impose on Licensee plus 10 days. For these reasons, common pleas could find that
the delay here met the first Gingrich factor.
      We are not unmindful of the Department’s concern that considering non-
Departmental delays and the 10-day reporting requirement in license suspension
appeals will hinder its ability to protect the public through the imposition of civil
license suspensions. This concern is addressed by specifically considering whether
there remains a public protection purpose for upholding the suspension based, in
part, on whether the licensee has had additional violations of the Vehicle Code since
the relevant conviction. Importantly, however, when there is a delay in reporting a
conviction to the Department, the unsafe driver is not being taken off the road. The
General Assembly enacted two complementary statutory provisions to take unsafe
drivers off the road expeditiously and deter future misconduct. The 10-day reporting
requirement is imposed on the clerks of court to report the conviction before the
Department is able to suspend the license for the applicable statutory time period.
These statutory mechanisms must work together to remove unsafe drivers from
the road as soon as possible after the conviction, for varying periods of time based
on the nature of the offenses and aggravating factors. The courts have treated the
two types of delays differently, although the result of a delay is the same regardless
of its cause. Sanctioning lengthy delays in reporting, and the concomitant lengthy
delay in suspending the license of an unsafe driver, frustrates the public safety
purpose our precedent found important, thus jeopardizing “the traveling public
whom the suspension was meant to protect.” Chappell, 430 A.2d at 379.




                                         23
      Finally, we note that although our analysis has primarily focused on the
impact untimely suspensions have on the public safety purpose of license
suspensions, the application of these criteria, the 10-day reporting requirement and
the length of the suspension sought to be imposed, also address the due process and
fairness concerns raised in Gingrich. The statutory provisions provide objective
criteria against which all courts of common pleas can measure a particular delay in
the reporting of a licensee’s conviction to the Department. Applying these objective
criteria to determine if the first Gingrich factor is met, and determining whether the
other two Gingrich factors are satisfied, balances the General Assembly’s intent that
unsafe drivers be timely removed from the road following a conviction and the
public safety purpose of license suspensions, while also being sensitive to the due
process concerns that may arise when a delay reaches the point where the license
suspension has lost its public safety purpose and has become an additional
punishment imposed too long after the fact.


                                  V.     Conclusion
      Applying the Gingrich factors, as now clarified, to this matter, we agree with
common pleas that “under these factual circumstances, [Licensee’s] suspension is
not in the interest of protecting the public, but rather will be an additional punishment
to be imposed years later.” (1925(a) Op. at 11.)
      Accordingly, we affirm.




                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge



                                           24
Judge Simpson dissents.




                          25
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Middaugh                        :
                                        :
                   v.                   :   No. 815 C.D. 2017
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER


      NOW, October 31, 2018, the Order of the Court of Common Pleas of
Delaware County, entered in the above-captioned matter, is AFFIRMED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Middaugh                          :
                                          :
                   v.                     :
                                          :
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing,               :   No. 815 C.D. 2017
                         Appellant        :   Argued: March 7, 2018


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE ELLEN CEISLER, Judge



CONCURRING AND DISSENTING OPINION
BY JUDGE COVEY                                       FILED: October 31, 2018

            I agree with the Majority’s conclusion that the Delaware County
Common Pleas Court’s (trial court) determination, that Stephen Middaugh’s
(Licensee) suspension is not in the interest of protecting the public, but rather is an
additional punishment because of the delay, should be affirmed. I also concur that
the suspension time and the 10-day reporting requirement are to be a consideration
in determining an unreasonable length of a non-departmental delay of a license
suspension notice. However, while the Majority states that it does not establish a
bright line test for when an extraordinarily extended delay occurs, it does rule that
any delay less than the total of the suspension time plus 10 days “cannot be an
extraordinarily extended period of time to meet the first Gingrich factor.” Majority
Op. at 23 (emphasis added).       This bright line standard causes my concern and
disagreement because it will result in unfairness and an unequal application of the
law for similarly situated licensees.
             By making the above ruling, the Majority has unfairly prejudiced the
licensee who receives his suspension after his suspension time lapsed, but before the
additional 10 days has run, or anytime close thereto but before the actual suspension
time plus 10 days has expired. In addition, although the Majority acknowledges “the
need for consistency and certainty in Gingrich’s application,” the “adoption of this
objective standard” has the result of treating the above-described licensees differently
with no “consistency and certainty.” Majority Op. at 23 n.17. In addition, the effect
of the Majority is to precipitate litigation over this issue as anyone who receives
his/her suspension after the suspension time plus 10 days will surely appeal as under
the new standard one can argue that he/she has met the extraordinarily extended time
period.
             For the following reasons, I suggest that this Court, in revisiting
Gingrich, abandon Gingrich. First, I find it troublesome that the Majority still refers
to the first Gingrich factor as an extraordinarily extended time period, when under
the new standard a delay of only 190 days meets the first factor. Second, because
prejudice is present in most, if not all cases, and occurs to any person who currently
has a license and suddenly loses it, I believe the Gingrich prejudice factor should be
abolished as it lacks any significance as a consideration.       In essence, a license
suspension is per se prejudicial and, therefore, prejudice is a non-element. Further,
prejudice is the only Gingrich requirement with a subjective standard, i.e., what
constitutes prejudice varies from licensee to licensee, as opposed to an objective
basis. Prejudice plays no role in determining whether the length of delay loses its
safety purpose. Accordingly, I believe this Court should cease relying upon the
Gingrich exception and discontinue using the factors as identified therein.
                                        AEC - 2
             While I agree with the Majority’s well-written opinion explaining the
use of the suspension time and the 10-day reporting requirement as a consideration, I
would avoid a bright line standard.       In order to end the varied applications of
Gingrich and its factors going forward, rather than look to Gingrich when faced with
a non-departmental delay in the notice of a license suspension, the trial courts should
consider the following: (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.
             The weighing of the above considerations is best illustrated by examples.
For instance, a licensee who appears before the trial court who has received a 12-
month license suspension notice one year and five days after his conviction (due to a
non-departmental delay), who had no prior convictions/incidents and has had no
incidents since the relative conviction, should not be penalized by the fact that his full
suspension time plus 10-days has not yet elapsed, but rather should get the benefit of
the above considerations and have his license suspension vacated.            However, a
licensee who receives his 12-month license suspension notice 18 months after his
conviction (due to a non-departmental delay), who had an incident during those 18
months, should not get his license suspension vacated merely because a specific
amount of time has elapsed. Similarly, a licensee who receives his 12-month license
suspension notice 18 months after his conviction (due to a non-departmental delay),
who had a conviction 6 months before the relative conviction and no incident after
the relative conviction, should not get his license suspension vacated merely because
a specific amount of time has elapsed. Because “[i]t is well settled in Pennsylvania
that driving is a privilege” not a right, and the obvious public safety concerns are
                                         AEC - 3
clearly demonstrated in the last two examples, the trial court, as fact-finder, should
weigh the evidence presented within the context of the two objective factors while
being mindful that the goal is public safety. Marchese v. Commonwealth, 169 A.3d
733, 740 (Pa. Cmwlth. 2017).
             For all of the above reasons, while I agree with the outcome and most of
the analysis, I respectfully dissent from the Majority as written.




                                        ___________________________
                                        ANNE E. COVEY, Judge




                                        AEC - 4
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Middaugh                          :
                                          :
      v.                                  :
                                          :   No. 815 C.D. 2017
Commonwealth of Pennsylvania,             :   ARGUED: March 7, 2018
Department of Transportation,             :
Bureau of Driver Licensing,               :
                  Appellant               :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION
BY JUDGE CEISLER                                      FILED: October 31, 2018

      Because I believe this Court should abrogate Gingrich v. Department of
Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016) (en
banc), and I would reverse the Trial Court’s decision, I respectfully dissent.
      The Majority’s decision in this case has considerably undermined Gingrich’s
intended holding and application. In Gingrich, our Court created a narrow exception
to the general rule that administrative delays not attributable to the Department of
Transportation, Bureau of Driver Licensing (Department), are insufficient to
invalidate a license suspension. We recognized, however, 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 (both emphases
added).
       The Gingrich Court expressly declined to establish a bright-line rule for when
an administrative delay becomes “extraordinary.” Id. at 534-35 & n.7. However, in
the two years since the Gingrich decision, our Court has effectively reduced the
“extraordinary delay” requirement from 10 years to 2 years,1 thus stretching
Gingrich so far that the “exception” is close to becoming the rule.
       Like my learned colleague Judge Covey, I disagree with the Majority’s
pronouncement that any reporting delay less than the licensee’s total suspension time
plus 10 days “cannot be an extraordinarily extended period of time” under Gingrich.
Middaugh v. Dep’t of Transp., Bureau of Driver Licensing, __ A.3d __, __, (Pa.
Cmwlth., No. 815 C.D. 2017, filed October 31, 2018) (en banc), slip op. at 23. After
stating that it did not wish to create a bright-line rule, the Majority essentially created
a bright-line rule – one whose application, like the rule in Gingrich, will lead to
inconsistent results in future cases.
       Moreover, I believe that county court clerks should be accountable for
fulfilling their statutorily required reporting obligation. As the Majority recognizes,
Section 6323(1)(i) of the Vehicle Code “establishes a statutory obligation on the
clerk of court . . . to send a record of judgment of conviction under the Vehicle
Code . . . to [the Department] within 10 days of the conviction.” Middaugh, __
A.3d at __, slip op. at 10-11. The Majority goes on to state that the “10-day
reporting period is evidence of the General Assembly’s intent that convictions
resulting in a mandatory civil license suspension be promptly reported to the
Department.” Id., __ A.3d at __, slip op. at 11 (first emphasis added). Yet, the
Majority nonetheless concludes that compliance with the 10-day reporting
requirement is merely a factor to be considered when determining whether the delay

       See Middaugh v. Dep’t of Transp., Bureau of Driver Licensing, __ A.3d __, __, (Pa.
       1

Cmwlth., No. 815 C.D. 2017, filed October 31, 2018) (en banc), slip op. at 18-19 & n.13.
                                         EC - 2
was for an extraordinarily extended period of time. Id., __ A.3d at __, slip op. at 21.
In my view, this conclusion renders the compulsory language of Section 6323(1)(i)
meaningless and allows licensees to unfairly benefit from county court clerks’
failure to comply with their statutory obligation. It also keeps licensees on the
roadways despite their DUI convictions, which contradicts the public safety purpose
that license suspensions are intended to serve. That cannot be the result our
legislature intended.
       As the recent precedent on this issue has shown, whether an individual’s
license suspension is sustained depends, in large part, on the caprice, efficiency, and
attitude of county court clerks throughout the Commonwealth.                         Lack of
accountability and arbitrary reporting practices by county court clerks not only
implicates fundamental notions of fairness, but also lends itself to potential mischief
and misconduct. Licensees should not be permitted to avoid the consequences of
their actions that caused them to lose their operating privileges simply because their
suspensions were delayed through no fault of the Department. Otherwise, licensees
who have not received notice of their suspensions could choose to gamble on
whether their suspensions will slip through the cracks, rather than take the initiative
to inquire into their license statuses. Licensees convicted of DUI can always contact
the Department to ascertain the status of their licenses if they are concerned about
the delay, as Stephen Middaugh (Licensee) was in this case.2




       2
         Here, Licensee was aware at the time of his DUI conviction that his license would be
suspended, and he had no reason to believe the suspension would not be imposed. See Reproduced
Record at 41a. Licensee testified: “I had no idea what happened. I kept waiting and waiting, and
nothing happened. I didn’t even buy a car for a while, waiting for the suspension, but I had no
idea what happened.” Id. at 42a. If Licensee was questioning the timing of his suspension, he
easily could have contacted the Department and so inquired.
                                            EC - 3
      Furthermore, the result in this and similar post-Gingrich cases raises equal
protection concerns, because licensees whose DUI convictions are timely reported
will have their licenses suspended, but licensees whose conviction reports are
delayed will have their suspensions vacated. In essence, similarly situated licensees
are being treated differently for no reason other than whether the county court clerks
complied with their statutory obligation to report their convictions to the Department
within 10 days.
      Because the Gingrich exception has been stretched beyond recognition and
has created inconsistent results, I strongly believe this Court should abrogate
Gingrich. By doing so, we would be required to apply our established pre-Gingrich
precedent, which holds that in order to challenge an unreasonable delay between a
licensee’s conviction and notice of suspension, the delay must be attributable to the
Department. See, e.g., Pokoy v. Dep’t of Transp., Bureau of Driver Licensing, 714
A.2d 1162 (Pa. Cmwlth. 1998). The Pokoy decision has not been abrogated or
reversed and remains good law. Because there was no delay attributable to the
Department in this case, I would reverse the Trial Court’s decision.



                                          _____________________________
                                          ELLEN CEISLER, Judge




                                       EC - 4
