                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Timothy Gerald Martin,                          :
                Appellant                       :
                                                :   No. 1331 C.D. 2015
               v.                               :
                                                :   Submitted: February 5, 2016
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                        FILED: July 5, 2016


               Timothy Gerald Martin (Licensee) appeals from the June 24, 2015 order
of the Court of Common Pleas of Bradford County (trial court), which essentially
denied his statutory appeal from an eighteen-month suspension of his operating
privilege imposed by the Department of Transportation, Bureau of Driver Licensing
(DOT), pursuant to section 1547(b)(1)(ii) of the Vehicle Code (Code), 75 Pa.C.S.
§1547(b)(1)(ii).1

       1
         Section 1547(a) of the Code, commonly known as the Implied Consent Law, provides that
“[a]ny person who drives, operates or is in actual physical control of the movement of a vehicle in
this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath
or blood . . . if a police officer has reasonable grounds to believe the person to have been driving,
operating or in actual physical control of the movement of a vehicle. . . .” 75 Pa.C.S. §1547(a).
Section 1547(b)(1)(ii) provides that if any person placed under arrest for driving while under the
influence is requested to submit to a chemical test, refuses to do so, and either the person’s
(Footnote continued on next page…)
               The underlying facts of this case are not in dispute. On January 26,
2012, Licensee was arrested and charged with driving under the influence of alcohol
(DUI) following an incident that occurred in Bradford County. At the time of his
arrest, Licensee was advised of the Implied Consent Law and was requested to
provide a sample of his blood for chemical testing. Licensee, however, refused to
allow a blood sample to be drawn. By official notice dated February 21, 2012, DOT
informed Licensee that his operating privilege would be suspended for a period of
eighteen months, effective March 27, 2012. Licensee thereafter filed an appeal with
the Court of Common Pleas of Cambria County, his county of residence. (Trial court
op. at 1.)
               Prior to hearing on Licensee’s appeal, DOT filed a motion with the
Court of Common Pleas of Cambria County seeking to transfer the appeal to the trial
court, asserting that Pennsylvania law, namely section 933(a)(1)(ii) of the Judicial
Code, 42 Pa.C.S. §933(a)(1)(ii), requires that suspension appeals be heard in the
county in which the offense giving rise to the appeal occurred.2 Following a hearing,
the Court of Common Pleas of Cambria County, finding that venue was proper in
Bradford County where the alleged DUI and refusal occurred, granted DOT’s motion
and transferred the matter to the trial court. The trial court never scheduled a hearing

(continued…)

operating privilege has been previously suspended under this subsection or the person has, prior to
the refusal, been sentenced for an offense under sections 3802 or 3731 (relating to driving under the
influence of alcohol or controlled substance), or an equivalent offense, the Department shall
suspend the person’s operating privilege for a period of eighteen months.

       2
         Section 933(a)(1)(ii) states that the venue for appeals from suspensions under section 1547
of the Code “shall be in . . . the county where the arrest for a violation of 75 Pa.C.S. §3802 (relating
to driving under influence of alcohol or controlled substance) was made . . . .” 42 Pa.C.S.
§933(a)(1)(ii).



                                                   2
and the matter remained dormant for a period of approximately twenty-seven months.
(Trial court op. at 1-2.)
             On December 29, 2014, DOT sent Licensee a second official notice
informing Licensee that his operating privilege would be suspended for a period of
eighteen months, effective February 2, 2015, as a result of his refusal to submit to
chemical testing on January 26, 2012. On January 26, 2015, Licensee filed a motion
with the trial court seeking a stay of the suspension of his operating privilege and
requesting a hearing. Licensee simultaneously filed an appeal relating to DOT’s
December 29, 2014 notice of suspension. In this appeal, Licensee alleged that laches
should apply, thereby preventing DOT from enforcing the suspension, by reason of
DOT’s failure to pursue this matter following its motion to transfer. Licensee further
alleged that the unreasonable delay should be attributed to DOT, that he would be
prejudiced by the delay, and that a current suspension would be to his detriment
because he believed, due to the extensive delay, that his operating privilege would not
be suspended. (Trial court op. at 2-4.)
             A hearing was held before the trial court on May 6, 2015, which
included testimony of Patrolman Eric Kier, the arresting officer in 2012, and
Licensee. By opinion and order dated June 24, 2015, the trial court denied Licensee’s
motion for a stay and a hearing and addressed the issues raised by Licensee in his
second appeal. The trial court, citing our Supreme Court’s decision in Department of
Transportation, Bureau of Driver Licensing v. Gombocz, 909 A.2d 798 (Pa. 2006),
rejected Licensee’s argument that the extensive delay following the transfer of the
appeal to the Court of Common Pleas of Bradford County, and any resultant
prejudice therefrom, was attributable to DOT. Consistent with Gombocz, the trial
court held that, despite the transfer, Licensee remained the movant in this matter and



                                          3
had the burden of moving the case forward. Thus, the trial court concluded that
Licensee had failed to show that DOT caused an unreasonable delay in connection
with Licensee’s original appeal. Licensee now appeals.
              On appeal to this Court,3 Licensee argues that the trial court erred in
denying his appeal “because it erroneously recognized [him] as the moving party.”
(Licensee’s brief at 4.) However, in the argument section of his brief, Licensee
argues that DOT’s issuance of the December 29, 2014 suspension notice rendered the
first suspension notice moot and required the trial court to examine “if the delay now
caused prejudice to [him] instead of examining who was the moving party.” Id. at 6.
In this regard, Licensee further argues that the trial court erred in not recognizing that
he was prejudiced by this delay. We disagree with Licensee’s arguments.
              Our Supreme Court has recognized that:

              In order to sustain an appeal of a license suspension based
              on delay, the licensee must prove that: (1) an unreasonable
              delay chargeable to [DOT] 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.
Terraciano v. Department of Transportation, Bureau of Driver Licensing, 753 A.2d
233, 236 (Pa. 2000) (citation omitted).
               In Gombocz, our Supreme Court reviewed this standard as it applied to
a transfer of venue. In that case, the licensee was arrested for DUI in Bucks County
and refused to submit to chemical testing.             DOT sent the licensee a notice of
suspension. The licensee subsequently filed an appeal with the Court of Common

       3
         Our scope of review is limited to determining whether the trial court’s necessary findings
are supported by substantial evidence and whether the trial court committed an error of law or
abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881
A.2d 30, 34 (Pa. Cmwlth. 2005).



                                                4
Pleas of Lehigh County and DOT filed a motion to transfer venue to the Court of
Common Pleas of Bucks County, which was granted on September 7, 1999. The
licensee twice requested that the latter court schedule a de novo hearing, but no
hearing date was ever scheduled. Three years later, DOT filed a motion to dismiss
the licensee’s appeal for lack of prosecution due to inactivity. The Court of Common
Pleas of Bucks County denied DOT’s motion and scheduled a hearing, at which time
the licensee’s counsel advised the court that his client would be unable to testify
because of a lack of recollection regarding his 1999 arrest. The licensee thereafter
moved to dismiss his suspension alleging prejudice resulting from the four-year
delay.
             The Court of Common Pleas of Bucks County set aside DOT’s
suspension, finding that the delay was attributable to DOT for failing to move the
case forward after obtaining a transfer of venue and that such delay was prejudicial to
the licensee given that he, contrary to the arresting officer, lacked any materials to
refresh his memory. This Court affirmed, stating that when witnesses are unavailable
to testify due to a lack of memory of the events at issue, it necessarily violates a
defendant’s due process rights. However, our Supreme Court reversed, concluding
that the licensee, who filed the initial appeal, remained the moving party even after
the grant of DOT’s motion to transfer venue. As such, the court held that the licensee
failed to establish the first prong of Terraciano, i.e., an unreasonable delay
chargeable to DOT.
             The present case is indistinguishable from Terraciano and mandates the
same result. Here, Licensee filed the initial appeal in the Court of Common Pleas of
Cambria County, his county of residence. DOT thereafter moved for, and was
granted, a transfer of venue to the trial court. Consistent with Terraciano, any



                                           5
subsequent delay in the case moving forward was not attributable to DOT. Rather,
Licensee remained the moving party in the appeal and the trial court did not err in
recognizing him as such.
              While Licensee argues that DOT’s original suspension is now moot and
that the trial court should have considered whether DOT’s delay in filing the
December 29, 2014 suspension notice was prejudicial and barred by laches, Licensee
premises this argument on DOT’s failure to pursue its motion transferring the matter
to the trial court and allowing the case to sit idle since the transfer in 2012. However,
as Terraciano makes clear, this delay could not be attributable to DOT, under either
suspension notice. Because Licensee could not meet the first prong of Terraciano,
the trial court did not err in denying Licensee’s appeal.
              Accordingly, the order of the trial court is affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Timothy Gerald Martin,                 :
                Appellant              :
                                       :    No. 1331 C.D. 2015
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                   ORDER


            AND NOW, this 5th day of July, 2016, the order of the Court of
Common Pleas of Bradford County, dated June 24, 2015, is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
