           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert T. Currie                        :
                                        : No. 1819 C.D. 2015
                   v.                   : Submitted: April 22, 2016
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                                        :
                         Appellant      :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY SENIOR JUDGE FRIEDMAN                        FILED: June 16, 2016

            The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (DOT) appeals from the September 3, 2015, order of the
Court of Common Pleas of Allegheny County (trial court) sustaining the appeal of
Robert T. Currie (Licensee) from the one-year suspension of his operating privilege
imposed pursuant to section 3804(e)(2)(i) of the Vehicle Code, 75 Pa. C.S.
§3804(e)(2)(i). We reverse.


            On May 15, 2012, the trial court convicted Licensee of two counts of
driving under the influence (DUI) for incidents occurring on July 20, 2011, and
December 8, 2011. The Allegheny County Department of Court Records (Records
Department) certified the conviction arising from the July 20, 2011, DUI and
transmitted it to DOT.    However, the Records Department did not certify the
conviction arising from the December 8, 2011, DUI at that time.
            After receiving certification of Licensee’s conviction for the July 20,
2011, DUI, DOT suspended Licensee’s operating privilege for one year, effective
November 7, 2012. After the suspension period ended and Licensee paid the required
fines, DOT restored Licensee’s operating privilege on March 23, 2015.


            On April 22, 2015, the Records Department certified Licensee’s
conviction from the December 8, 2011, DUI and transmitted it to DOT. On May 26,
2015, DOT suspended Licensee’s operating privilege for one year, effective June 29,
2015.


            Licensee filed a summary appeal from the May 26, 2015, notice of
suspension with the trial court. On September 3, 2015, after a de novo hearing, the
trial court sustained Licensee’s appeal. In its Pa. R.A.P. 1925(a) opinion, the trial
court acknowledged “the long line of cases holding that in order to sustain an appeal
on the basis of unreasonable delay, the delay must be attributable to [DOT].” (Trial
Ct. Op. at 3.) The trial court determined, however, that such a result would be
unreasonable and unjust under the circumstances of this case.

            To sustain this particular license suspension where the delay
            was not caused by [DOT], and clearly not by [Licensee],
            but by the [Records Department] would result in prejudice
            to [Licensee] . . . . Moreover, it does not further the goal of
            the . . . Vehicle Code to maintain safety on public roads,
            when the suspension will take place three years after
            [Licensee’s] conviction.        Such a decision tends to
            undermine the public’s confidence and trust in the judicial
            system and frustrate the reasonable expectations of the
            public that the courts treat defendants in a timely, fair and
            consistent manner.

                                          2
(Id. at 4.) DOT now appeals from that decision.1


              DOT contends that the trial court erred as a matter of law in sustaining
Licensee’s appeal based on unreasonable delay where the delay was not attributable
to DOT. In light of this court’s recent en banc decision on this issue, Gingrich v.
Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa.
Cmwlth. 2016) (en banc), we cannot agree.2 However, because we conclude that,
under Gingrich, the trial court abused its discretion in finding that Licensee was
prejudiced by the delay, we reverse the trial court’s decision.


              As the trial court acknowledged in its opinion, prior case law
consistently held that in order for a licensee to successfully challenge a suspension on
the basis of unreasonable delay, the delay must be attributable to DOT. See, e.g.,
Pokoy v. Department of Transportation, Bureau of Driver Licensing, 714 A.2d 1162
(Pa. Cmwlth. 1998); Department of Transportation, Bureau of Driver Licensing v.
Green, 546 A.2d 767 (Pa. Cmwlth. 1988), aff’d, 569 A.2d 350 (Pa. 1990). The
general rule is that “where DOT is not guilty of administrative delay, any delay
caused by the judicial system (e.g., the Clerk of Courts) [in] not notifying DOT in a
timely manner, will not invalidate a license suspension.” Pokoy, 714 A.2d at 1164.


       1
         Our scope of review in a license suspension appeal is limited to determining whether the
trial court’s factual findings “are supported by competent evidence and whether the trial court
committed an error of law or abuse of discretion.” Pokoy v. Department of Transportation, Bureau
of Driver Licensing, 714 A.2d 1162, 1164 n.1 (Pa. Cmwlth. 1998).

       2
          Generally, Pennsylvania appellate courts “apply the law in effect at the time of the
appellate decision.” Blackwell v. State Ethics Commission, 589 A.2d 1094, 1099 (Pa. 1991). Thus,
“‘a party whose case is pending on direct appeal is entitled to the benefit of changes in law which
occur[] before the judgment becomes final.’” Id. (citation omitted).

                                                3
             In Gingrich, however, this court created a limited exception to the
unreasonable-delay rule.     In that case, DOT imposed a one-year suspension of
Gingrich’s operating privilege, effective November 28, 2014, after receiving the clerk
of courts’ report that Gingrich was convicted of DUI on August 24, 2004. Gingrich,
134 A.3d at 529. Gingrich appealed to the trial court, which held a de novo hearing.
Id.


             At the hearing, DOT’s counsel stated that the clerk of courts transmitted
the report of Gingrich’s 2004 conviction to DOT on October 10, 2014, and that DOT
timely issued the suspension notice within ten days. Id. Gingrich testified that since
her 2004 conviction, she had earned associate’s and bachelor’s degrees, married,
obtained a job with the United States Department of Agriculture, and had a child. Id.
at 530. Gingrich further testified that the suspension would impact her ability to
drive her child to school and would likely result in the loss of her job, which requires
her to drive. Id. DOT did not dispute that Gingrich was prejudiced by the delay. Id.


             The trial court found that the clerk of courts’ ten-year delay in reporting
Gingrich’s conviction to DOT “was ‘truly unconscionable.’” Id. (quoting trial court
opinion). Nonetheless, the trial court upheld the suspension because the delay was
not attributable to DOT; however, the trial court urged this court “‘to clarify, if not
modify, its prior holdings to take into consideration what [it perceived] to be a patent
denial of due process.’” Id. (quoting trial court opinion).


             On appeal, this court reiterated the general rule that only delays
attributable to DOT may invalidate a license suspension. Id. at 534. We explained,

                                           4
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.” Id.
(emphasis added). Thus, we held that “[w]here a conviction is not reported [to DOT]
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 [the
licensee] is able to demonstrate prejudice, it may be appropriate for [the] common
pleas [court] to grant relief.” Id.3 We then concluded:

              [T]he 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
              [2014] suspension has lost the underlying public safety
              purpose and now simply is a punitive measure sought to be
              imposed too long after the fact.

Id. at 535. Therefore, we reversed the trial court’s decision and vacated Gingrich’s
suspension. Id.


              Applying the Gingrich rationale to the facts of this case, we must
determine whether:        (1) the Records Department failed to report Licensee’s
conviction to DOT for an “extraordinarily extended period of time”; (2) Licensee had
no further Vehicle Code violations for a “significant number of years” before the
Records Department sent the report to DOT; and (3) Licensee has been prejudiced by
the delay. See id. at 534.

       3
        Although we declined to “impose a bright line as to what constitutes an extraordinarily
extended period of time,” we determined that the ten-year delay in that case satisfied the test.
Gingrich, 134 A.3d at 535 n.7.

                                               5
              Here, Licensee testified that after DOT restored his operating privilege
in March 2015, he moved from Pennsylvania to New Jersey; however, he has been
unable to obtain a New Jersey driver’s license due to the Pennsylvania suspension.
(N.T., 9/3/15, at 6-8.) Moreover, Licensee’s certified driving history establishes that
Licensee had no Vehicle Code violations following his 2012 DUI convictions. (See
DOT’s Ex. 3.) The trial court credited Licensee’s testimony and determined that the
suspension imposed three years after Licensee’s conviction prejudiced Licensee and
no longer served its public safety objective. (Trial Ct. Op. at 3-4.) Based on our
review of Gingrich and the certified record in this case, however, we conclude that
the trial court abused its discretion in finding prejudice.4


              The record shows that on September 7, 2012, DOT imposed the first
one-year suspension on Licensee’s operating privilege, effective November 7, 2012;
that suspension should have ended on November 7, 2013. However, DOT did not
restore Licensee’s operating privilege until March 23, 2015, because Licensee failed
to pay the required fines. (N.T., 9/3/15, at 6-7.) After the Records Department sent
notice to DOT of the second DUI conviction on April 22, 2015, DOT imposed the
second one-year suspension of Licensee’s operating privilege, effective June 29,
2015. Although technically this suspension was imposed three years after Licensee’s
conviction, it was imposed only three months after Licensee’s operating privilege was
restored. Even if the Records Department had reported both DUI convictions to DOT


       4
         We also question whether the Records Department’s failure to report Licensee’s conviction
to DOT for three years constitutes an “extraordinarily extended period of time” under Gingrich.
However, because we find that Licensee was not prejudiced by the delay, we need not reach this
question.

                                                6
simultaneously in 2012, Licensee could not have begun to serve the second
suspension until his first suspension ended in March 2015. See Department of
Transportation, Bureau of Driver Licensing v. Gonzalez, 543 A.2d 231, 232 (Pa.
Cmwlth. 1988) (holding that the Vehicle Code requires that mandatory periods of
suspension upon conviction for two incidents of DUI be served consecutively, even
though both convictions were imposed on the same date); Department of
Transportation, Bureau of Driver Licensing v. Martin, 517 A.2d 216, 217 (Pa.
Cmwlth. 1986) (“[I]t is proper for penalties imposed for separate violations of the
Vehicle Code to be imposed consecutively.”).          Furthermore, the only reason
Licensee’s first suspension was extended to March 2015 was because Licensee
neglected to pay the required fines.          (N.T., 9/3/15, at 6-7.)   Under these
circumstances, we cannot conclude that Licensee was prejudiced by the delay.


             Accordingly, because we conclude that the trial court abused its
discretion in sustaining Licensee’s appeal, we reverse.




                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                          7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert T. Currie                      :
                                      : No. 1819 C.D. 2015
                   v.                 :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing,           :
                                      :
                        Appellant     :



                                    ORDER


            AND NOW, this 16th day of June, 2016, we hereby reverse the
September 3, 2015, order of the Court of Common Pleas of Allegheny County.



                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
