             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jack Lee Janes, Jr.                              :
                                                 :
                      v.                         :   No. 369 C.D. 2017
                                                 :   Submitted: September 8, 2017
Commonwealth of Pennsylvania,                    :
Department of Transportation,                    :
Bureau of Driver Licensing,                      :
                         Appellant               :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                 FILED: October 24, 2017


       The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (PennDOT) appeals an Order of the Court of Common Pleas of
Delaware County (trial court) that sustained the statutory appeal of Jack Lee Janes,
Jr., (Licensee) from a one-year suspension of his operating privilege imposed by
PennDOT pursuant to Section 13(a)(16) of The Controlled Substance, Drug, Device
and Cosmetic Act (Drug Act), 35 P.S. § 780-113(a)(16).1 Because Licensee does

       1
         Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(16). This offense is
defined to include:

       Knowingly or intentionally possessing a controlled or counterfeit substance by a
       person not registered under this act, or a practitioner not registered or licensed by
not meet the extraordinary circumstances exception set forth in Gingrich v.
Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa.
Cmwlth. 2016), we reverse.
      The facts are straightforward and not in dispute. On December 14, 2012,
Licensee violated Section 13(a)(16) of the Drug Act, relating to possession of a
controlled substance. This violation and the resulting suspension are at issue in this
case. At the time of this violation, Licensee’s license was suspended for a prior
violation of Section 13(a)(31) of the Drug Act, 35 P.S. § 780-113(a)(31), relating to
possession of marijuana (Prior Violation).              On July 31, 2014, Licensee was
convicted of the violation at issue by the trial court. Approximately two years later,
on August 9, 2016, the Delaware County Office of Judicial Support (OJS) notified
PennDOT of Licensee’s July 31, 2014 conviction. PennDOT mailed a Notice of
Suspension, pursuant to Section 1532(c) of the Vehicle Code (Code), 75 Pa. C.S. §
1532(c),2 to Licensee on August 24, 2016. The Notice of Suspension stated that


      the appropriate State board, unless the substance was obtained directly from, or
      pursuant to, a valid prescription order or order of a practitioner, or except as
      otherwise authorized by this act.

Id.
      2
          Section 1532(c) of the Code provides:

      Suspension.--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 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.



                                                  2
Licensee’s operating privilege would be suspended for a period of one year effective
on September 28, 2016. Licensee timely filed a License Suspension Appeal in the
trial court on September 15, 2016.
       On March 7, 2017, the trial court held a de novo hearing on Licensee’s appeal,
at which PennDOT presented Licensee’s Certified Driving Record, which showed
that, on April 5, 2013, after the violation at issue, Licensee had violated Section
13(a)(30) of the Drug Act, 35 P.S. § 780-113(a)(30)3 (Subsequent Violation).
Licensee was convicted of the Subsequent Violation by the trial court on December
9, 2013. As a result of the Subsequent Violation, Licensee’s license was suspended
from January 28, 2014, to January 28, 2015, when Licensee’s operating privilege
was restored.
       Additionally, at the hearing, Licensee did not dispute the July 31, 2014
conviction for the violation at issue but testified that he had reformed in the two-year
period since the conviction. Upon having his operating privilege restored from the
suspension imposed because of the Subsequent Violation, Licensee “took classes at
Delaware County Community College” to obtain “his ASE certification[4] and a
vehicle inspection license through PennDOT.” (Trial Ct. Op. at 2.) Licensee is



75 Pa. C.S. § 1532(c).
       3
         This offense is defined to include:

       Except as authorized by this act, the manufacture, delivery, or possession with
       intent to manufacture or deliver, a controlled substance by a person not registered
       under this act, or a practitioner not registered or licensed by the appropriate State
       board, or knowingly creating, delivering or possessing with intent to deliver, a
       counterfeit controlled substance.

35 P.S. § 780-113(a)(30).
        4
          ASE is short for the National Institute for Automotive Service Excellence, which provides
independent testing and certification for automotive professionals. (Licensee’s Br. at 4.)


                                                3
currently employed at his father’s automotive repair facility where his job includes
“running the shop” and inspecting vehicles. (R.R. at 17a.) Licensee testified that if
he were to lose his driver’s license, he would lose his current job and would have
difficulty in finding another job that pays him a similar rate. Licensee further
indicated that if his license were to be suspended, “he would likely lose his newly
purchased vehicle and his home” because of a lack of income. (Trial Ct. Op. at 2.)
       “On March 7, 2017, the [t]rial [c]ourt sustained the Appeal and reinstated
[Licensee’s] operating privilege.” (Id. at 3.) The trial court reasoned that although
the traditional rule is that delays attributable to non-PennDOT entities are
insufficient to invalidate a license suspension, a limited exception to this rule was
set forth in Gingrich that allows a trial court to consider delays attributable to non-
PennDOT entities in certain circumstances. (Id. at 4–5.) In its opinion, the trial
court found that the circumstances of this case were analogous to the facts in
Gingrich. (Id. at 6.) PennDOT contended that Gingrich was inapplicable because
the delay at issue in this case is substantially less than the delay in Gingrich. The
trial court rejected this argument by distinguishing the precedent relied upon by
PennDOT and finding guidance in Section 6323(1)(i) of the Code, 75 Pa. C.S.
§ 6323(1)(i),5 which directs OJS to report convictions to PennDOT “within ten days


       5
           Section 6323(1)(i) of the Code provides:

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

75 Pa. C.S. § 6323(1)(i).



                                                 4
after final judgment of conviction.” (Id. at 9.) The trial court further concluded that
the suspension had lost its public protection rationale and is instead being instituted
as an additional punitive measure. (Id. at 10.) PennDOT timely appeals.6
       On appeal, PennDOT argues that the trial court erred in sustaining Licensee’s
appeal and ordering the reinstatement of Licensee’s operating privilege. PennDOT
asserts that the trial court erred because, under the traditional rule, a license
suspension generally may only be invalidated on the basis of delay when PennDOT
itself is responsible for an unreasonable delay, and a licensee would suffer prejudice
as a result of having his or her operating privilege suspended. Further, PennDOT
argues that to the extent that Gingrich created an exception to this traditional rule,
Gingrich does not apply to these circumstances. Specifically, PennDOT asserts that
Gingrich is inapplicable because the two-year delay here does not amount to an
“extraordinarily extended period of time” and because Licensee did not demonstrate
a lack of further violations for a significant number of years.
       Generally, for a licensee to challenge a license suspension on the basis of
delay, the licensee must prove that: “‘(1) an unreasonable delay chargeable to
PennDOT led the licensee to believe that [his] operating privileges would not be
impaired; and (2) prejudice would result by having the operating privileges
suspended after such delay.’” Dep’t of Transp., Bureau of Driver Licensing v.
Gombocz, 909 A.2d 798, 800–01 (Pa. 2006) (alteration in original) (quoting
Terraciano v. Dep’t of Transp., Bureau of Driver Licensing, 753 A.2d 233, 236 (Pa.
2000)). Historically, this Court has only considered the delay that is attributable to


       6
         Our review is limited to determining whether the trial court’s findings were supported by
substantial evidence, whether errors of law were committed, or whether the trial court’s
determination constituted an abuse of discretion. See Reinhart v. Dep’t of Transp., Bureau of
Driver Licensing, 954 A.2d 761, 765 n.3 (Pa. Cmwlth. 2008).


                                                5
PennDOT in determining whether a suspension may be invalidated on the basis of
delay. See, e.g., Dep’t of Transp., Bureau of Driver Licensing v. Green, 546 A.2d
767, 769 (Pa. Cmwlth. 1988). In Green, we explained the rationale for the traditional
rule:

        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 on scores of court clerks and hundreds of
        functionaries within the minor judiciary.

Id. However, recently, this Court recognized “limited extraordinary circumstances”
where a licensee may rely on the delay attributable to entities other than PennDOT
by showing that: (1) the “conviction is not reported for an extraordinarily extended
period of time”; (2) “the licensee has a lack of further violations for a significant
number of years before the report is finally sent”; and (3) the licensee is prejudiced
by the delay. Gingrich, 134 A.3d at 534.
        PennDOT seeks the application of the traditional, non-Gingrich rule here. In
the present case, there is no dispute that PennDOT acted promptly once it received
Licensee’s notice of conviction from the OJS.7 Thus, even though the trial court
found prejudice under the traditional rule, Licensee would not be entitled to relief
because PennDOT was not responsible for the delay. Therefore, in order to obtain
the desired relief, Licensee must demonstrate that he meets the three factors of the
Gingrich standard.




        7
            PennDOT acted within fifteen days of receiving the appropriate documentation from the
OJS.


                                                 6
       No dispute exists as to whether the third factor of the Gingrich standard –
prejudice – is met in this case. The trial court found that, based on Licensee’s
credited testimony, Licensee would be prejudiced by the delay because without his
license, he runs the risk of losing his job and source of income to pay for his home
and car. (Trial Ct. Op. at 2, 7.) PennDOT does not challenge this finding of
prejudice, and prior case law supports the notion that losing a job that requires a
driver’s license constitutes prejudice. See Orloff v. Dep’t of Transp., Bureau of
Driver Licensing, 912 A.2d 918, 924 (Pa. Cmwlth. 2006). For these reasons, the
evidence in the record supports the finding that Licensee would be prejudiced by the
delay in suspending his license. Although Licensee is able to demonstrate prejudice
resulting from the license suspension delay, the Court must evaluate this prejudice
along with the other two Gingrich factors to determine whether Licensee meets the
burden of the limited extraordinary circumstances exception explained in Gingrich.
       The first factor in Gingrich requires us to consider whether the delay from the
time of Licensee’s conviction to the time that OJS sent the report to PennDOT was
an “extraordinarily extended period of time.” Gingrich, 134 A.3d at 534. In
Gingrich, the Court did not establish a bright line test for meeting this factor, but
instead left it for the trial courts to determine on a case-by-case basis. Id. at 535 n.7.
Since Gingrich, we have affirmed trial court determinations where a delay
attributable to non-PennDOT entities, ranging from 7 years and 10 months to 10
years, was found to constitute an “extraordinarily extended period of time.” See
Eckenrode v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 168
C.D. 2015, filed July 14, 2016), slip op. at 6 (9 years);8 Capizzi v. Dep’t of Transp.,

       8
         Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported opinion filed after January 15, 2008, may be cited for its persuasive value,
but not as binding precedent.


                                                 7
Bureau of Driver Licensing, 141 A.3d 635, 643 (Pa. Cmwlth. 2016) (7 years, 10
months); Orwig v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No.
286 C.D. 2015, filed June 3, 2016), slip op. at 5–6 (10 years); Gingrich, 134 A.3d at
535 (10 years). The Court has also previously held that a trial court erred because a
delay of roughly five months, “which, while not ideal, was certainly not an
‘extraordinarily extended period of time.’” Nercesian v. Dep’t of Transp., Bureau
of Driver Licensing (Pa. Cmwlth., No. 1795 C.D. 2016, filed June 12, 2017), slip op.
at 9. Recently, this Court upheld a trial court decision that found two years and
seven months was an extraordinarily extended period of time when considered with
the other two Gingrich factors. Gifford v. Dep’t of Transp., Bureau of Driver
Licensing, __ A.3d __, __ (Pa. Cmwlth., No. 386 C.D. 2017, filed October 24, 2017),
slip op. at 10-11. The delay in this case of approximately two years falls in between
time frames that, post-Gingrich, have been determined not to be an “extraordinarily
extended period of time” and those that were.9
       The delay between Licensee’s conviction and when OJS sent the report to
PennDOT in this case was technically two years; however, during nearly six months
of the two years, Licensee’s license was suspended for the Subsequent Violation.
Therefore, the delay during which Licensee could have been prejudiced by the delay
in suspending his license was approximately one year and six months. We consider
whether the trial court erred in finding this delay constitutes an “extraordinarily
extended period of time,” Gingrich, 134 A.3d at 534, and whether the Gingrich test
is met when this delay is considered with the other Gingrich factors.


       9
          While, in dicta, we have questioned whether a three-year delay caused by a non-PennDOT
entity would constitute an “extraordinarily extended period of time,” we did not further address
this issue because the licensee was found to have not been prejudiced by the delay. Currie v. Dep’t
of Transp., Bureau of Driver Licensing, 142 A.3d 186, 189 n.4 (Pa. Cmwlth. 2016).


                                                8
       The second Gingrich factor examines whether Licensee has failed to incur
“further violations for a significant number of years before the report is finally sent”
for the suspension at issue. Gingrich, 134 A.3d at 534. The trial court incorrectly
stated in its analysis that Licensee had “not had any further violations in the interim.”
(Trial Ct. Op. at 10.)        Licensee’s Certified Driving Record indicates that he
committed the Subsequent Violation on April 5, 2013, which is only about 4 months
after the violation at issue, and about 21 months before Licensee’s report was sent
by OJS to PennDOT on August 9, 2016.
       In Gingrich, although there was another violation, there were no further
violations for approximately eight years before the report was sent to PennDOT,
which weighed in the licensee’s favor.10 Gingrich, 134 A.3d at 535. Similarly, in
Capizzi, the licensee had a “clean record for an extended period” when the licensee
had committed a subsequent violation nearly eight years before the report was finally
sent to PennDOT. Capizzi, 141 A.3d at 643.
       The rationale for creating the three factors in Gingrich was to ensure that
public protection remained the underlying foundation for the suspension, even after
a delay. Here, the protection of the public is still a viable concern because the
Subsequent Violation occurred within a short period of time after the violation at
issue. Additionally, Licensee’s license was suspended from the Prior Violation at
the time that the violation at issue here occurred. The multiple violations here weigh
against Licensee with regard to the protection of the public.
       Recently, we expounded on how the Gingrich factors are to be balanced with
one another:

       10
          In Gingrich, the violation and conviction at issue took place in 2004, and the report for
that conviction was not sent until 2014. Gingrich, 134 A.3d at 529. The licensee in that case was
subsequently convicted in 2006, resulting in the suspension of licensee’s license. Id. at 535.


                                                9
             We examine Gingrich and the cases that followed for guidance
      on the application of Gingrich’s three factors. In Gingrich, the delay at
      issue was nearly ten years, and there was significant prejudice because,
      during that time period, the licensee married, obtained higher education
      degrees, got a new job that required her to drive, and had a child who
      attended a school that required the licensee to drive. Gingrich, 134
      A.3d at 535. Because of the prejudice involved and the long delay, the
      Court gave less weight to the licensee’s subsequent driving violation
      and suspension and concluded that the license suspension should be
      reversed. Id. The three Gingrich factors were also balanced in Capizzi,
      where the delay was long (7 years and 10 months), no further violations
      were committed by the licensee, and at least some prejudice was shown
      by the licensee in that he could possibly lose his current job as a valet
      that required his license. Capizzi, 141 A.3d at 643. Although the Court
      in Capizzi found that the prejudice involved and the length of the delay
      were not as significant as in Gingrich, given the absence of additional
      violations combined with what delay and prejudice there was, we held
      that the trial court could find that the Gingrich exception was met. Id.
             The Gingrich factors were also recently balanced in Currie v.
      Department of Transportation, Bureau of Driver Licensing, 142 A.3d
      186, 187 (Pa. Cmwlth. 2016), where the delay caused by a non-
      PennDOT entity was nearly three years. However, in Currie, the
      licensee was unable to demonstrate any prejudice because for all but
      three months of the three-year delay, licensee’s license was suspended
      due to a different violation; therefore, we held that the Gingrich
      exception was not met. Id. at 189-90.

Gifford, __ A.3d at __, slip op. at 9-10. The licensee in Gifford was able to
demonstrate significant prejudice because of familial obligations that required him
to drive his ill daughter to the hospital frequently and a recently acquired job that
required a driver’s license. Further, the licensee in Gifford offered testimony that he
actively sought other jobs and was denied these jobs because of his felony
conviction, leading him and the court to believe that the imposition of a suspension
would drastically impair his ability to find another job.


                                          10
       Here, the prejudice shown by Licensee is not nearly as significant as the
licensees in Gingrich and Gifford. For example, Licensee did not demonstrate any
prejudice resulting from familial obligations like the licensees in both Gingrich and
Gifford. Moreover, Licensee’s inability to locate a job seems to be more speculative,
as Licensee stated that he has “a record, so it’s going to be hard for me to find another
job, let alone the amount of money I make now,” (R.R. at 21a), which is unlike the
licensee in Gifford who was able to show that the loss of a license would definitively
impair his ability to find another job by actively seeking alternate employment.
Gifford, __ A.3d at __, slip op. at 3-4, 7. Licensee’s situation is also somewhat
analogous to the licensee in Currie, who was unable to demonstrate significant
prejudice because his license was suspended for all but three months of the three-
year delay at issue. Here, Licensee’s license was suspended, due to the Subsequent
Violation, for all but eighteen months of the delay caused by OJS. Additionally, the
delay in this case of two years is shorter than all of the delays described in Gingrich,
Gifford, Capizzi, and Currie.11 When this is all considered with the additional
consideration that Licensee committed a subsequent violation in short
proximity to the violation at issue and to the time that the report was sent by
OJS, Licensee does not meet the limited extraordinary circumstances exception
explained in Gingrich.
       For the foregoing reasons, the trial court abused its discretion when, based on
the credited evidence presented in this matter, it held that Licensee was able to satisfy
the Gingrich exception. Because the record below demonstrates that the limited



       11
          We note that the delay at issue here is much shorter to aid in balancing the Gingrich
factors and do not attempt to derive a bright line rule for what constitutes an “extraordinarily
extended period of time.” Gingrich, 134 A.3d at 534.


                                              11
extraordinary circumstances exception set forth in Gingrich does not apply to the
case at issue, we will reverse the trial court’s March 7, 2017 Order.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jack Lee Janes, Jr.                     :
                                        :
                      v.                :   No. 369 C.D. 2017
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER


      NOW, October 24, 2017, the March 7, 2017 Order of the Court of Common
Pleas of Delaware County is REVERSED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
