           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Richard Needham,                        :
                            Appellant        :
                                             :
                     v.                      :   No. 1110 C.D. 2015
                                             :   SUBMITTED: November 20, 2015
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing                   :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                 FILED: May 4, 2016


              Licensee Mark Richard Needham appeals from an order of the Court
of Common Pleas of Erie County denying his statutory appeal and reinstating the
following operating-privilege suspensions imposed by the Department of
Transportation, Bureau of Driving Licensing:             (1) one-year suspension for
conviction of Section 3802(b) of the Vehicle Code (Code), 75 Pa. C.S. § 3802(b)
(driving under the influence/high rate of blood alcohol); and (2) fifteen-day add-on
suspension for conviction of Section 3362 of the Code, 75 Pa. C.S. § 3362


    1
     This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
(speeding).2       The sole issue before us is whether common pleas erred in
determining that the approximately five-year delay in imposing the suspensions
was not attributable to the Department because Licensee requested and secured a
supersedeas of those suspensions in the underlying criminal case, thereby assuming
the burden of moving his civil license suspension action forward. We affirm.
                Following an October 2009 non-jury criminal trial, common pleas
found Licensee guilty of violating the aforementioned provisions of the Code. In
November 2009, it sentenced him to sixty days of electronic monitoring and four
months of probation. In December 2009, Licensee appealed those convictions to
the Superior Court. In February 2010, the Department in two separate notices
imposed two civil license suspensions as a result of the aforementioned
convictions. In pertinent part, the appeal provision of each notice provided as
follows: “You have the right to appeal this action to the Court of Common Pleas
(Civil Division) within 30 days of the mail date, February 10, 2010, of this letter. .
. .”3 Instead of filing the statutory appeals with common pleas’ civil division,
however, then-counsel for Licensee filed a supersedeas request with the court’s
criminal division, which resulted in the issuance of a February 19, 2010, order
granting a supersedeas of the Department’s notices of suspension. Despite the
procedural irregularity, the Department honored the supersedeas order and restored
Licensee’s operating privilege pending appeal. In May 2010, the Superior Court
affirmed Licensee’s criminal sentence. In December 2010, the Supreme Court
denied his July 2010 petition for allowance of appeal. Subsequently, Licensee

   2
        The statutory basis for the add-on suspension is Section 1544 of the Code, 75 Pa. C.S. §
1544.
   3
     April 29, 2015, Hearing, Commonwealth Exhibit No. 1, February 10, 2010, Notice of
Suspension, Sub-exhibit No. 6, at 2.



                                                2
took no action to advise the Department that the appeal process had ended, i.e., the
criminal case had come to a conclusion and the February 2010 supersedeas order
was no longer in effect.
              After the Department conducted an administrative review of its
outstanding cases, Licensee’s license suspension notices came to its attention.
Consequently, in December 2014, the Department once again issued two notices of
civil license suspensions based on Licensee’s aforementioned convictions. This
time, however, the notices of suspension did not contain appeal provisions.4
Accordingly, when Licensee filed an appeal of the suspensions with common pleas
in January 2015, the court issued a rule to show cause on the Department to
establish why the appeal should not be granted and issued a stay of the suspensions
pending a hearing. In response, the Department restored Licensee’s operating
privilege pending appeal.5
              Following a hearing and submission of legal memoranda, common
pleas upheld the suspensions. Specifically, it determined that Licensee, who was
the party who requested supersedeas in the criminal division, was the moving party

    4
       At the April 2015 hearing before common pleas, the Department stated that a licensee
normally does not have the right to appeal the reinstatement of a suspension. See Nagelberg v.
Dep’t of Transp., 543 A.2d 634, 635 (Pa. Cmwlth. 1988) (holding that, where common pleas
dismissed licensee’s appeal, thereby resulting in a final determination, it correctly quashed his
attempted second appeal taken over a year later) and Rinck v. Commonwealth, 429 A.2d 1255,
1256 (Pa. Cmwlth. 1981) (holding that a licensee who withdraws the appeal of his license
suspension cannot later appeal the reinstatement of that suspension). Here, however, the licensee
alleged undue delay in reinstating the suspensions and, therefore, Rinck is inapplicable. See
Davis v. Dep’t of Transp., 552 A.2d 338, 340 (Pa. Cmwlth. 1988) (holding that, “where one who
withdrew the appeal from his suspension seeks review, not of the merits of the suspension, but to
the delay in reinstating it, Rinck is inapplicable”).
     5
       Had Licensee taken a statutory appeal in 2010, the Department would have afforded him
the automatic supersedeas that, with a few exceptions, accompanies a statutory appeal. Section
1550(b)(1)(i) of the Code, 75 Pa. C.S. § 1550(b)(1)(i).



                                               3
for purposes of any civil license suspension proceedings and, therefore, he was
responsible for moving any appeals of his civil license suspensions forward. In so
ruling, the court rejected Licensee’s argument that the delay in imposing the
suspensions should be attributed to the Department both by virtue of its decision to
honor the supersedeas and its subsequent administrative review of outstanding
license suspension cases. The court further observed that the Department was not
a party to the underlying criminal case and thus would not have received notice
that the Supreme Court had denied Licensee’s petition for allowance of appeal.
Licensee’s timely appeal to this Court followed.
             In order to sustain an appeal of a license suspension based on delay, a
licensee must establish that:     (1) an unreasonable delay chargeable to the
Department led the licensee to believe that his operating privilege would not be
impaired; and (2) prejudice would result in having the licensee’s operating
privilege suspended after that delay. Terraciano v. Dep’t of Transp., Bureau of
Driver Licensing, 753 A.2d 233, 236 (Pa. 2000). Once a licensee raises the delay
defense, the Department must then establish that the delay was caused by
something other than administrative inaction. Grover v. Dep’t of Transp., Bureau
of Driver Licensing, 734 A.2d 941, 943 (Pa. Cmwlth. 1999). If the Department
satisfies this burden, then the licensee’s appeal should be dismissed. Id. If it does
not meet this burden, then the burden shifts to the licensee to establish prejudice.
Id.
             Further, in determining attribution of delay, our Supreme Court has
previously identified the moving party and accorded it the burden of moving a case
forward. In Terraciano, the Court attributed the delay to the Department due to its
failure to pursue the licensee’s license suspension for seven years following the



                                         4
Department’s appeal to Commonwealth Court and our subsequent reversal and
remand to common pleas. In so concluding, the Supreme Court determined as
follows: “When PennDOT fails to take responsibility for moving a case forward
under circumstances where it is reasonable for it to be expected to do so, the delay
is attributable to PennDOT.” Terraciano, 753 A.2d at 236 (emphasis added).
             On the other hand, in Department of Transportation, Bureau of Driver
Licensing v. Gombocz, 909 A.2d 798, 802 (Pa. 2006), the Court ultimately
attributed the delay to the licensee, who filed the initial appeal. There, the question
of attribution arose only when the Department moved to have the case transferred
to another county as required by statute. In attributing the delay to the licensee, the
Court reasoned that, despite the Department’s motion to transfer being granted, the
licensee had not only acknowledged the transfer but also made an effort to obtain a
de novo hearing. The Court concluded, therefore, that the licensee “acknowledged
his position as moving party by attempting to schedule a hearing, and although his
efforts failed, it was by no fault of PennDOT.”         Id. at 802.    Mindful of its
conclusion in Terraciano that the delay in that case was attributable to the
Department’s inaction, the Court in Gombocz observed the “inverse” conclusion,
“for where the other party is reasonably expected to move things forward,
attribution will follow as well[,]” 909 A.2d at 801 (emphasis added). Accordingly,
the Court attributed the delay in Gombocz to the licensee, who had the burden to
move the case forward and failed to do so.
             Here, we conclude that the inverse situation envisioned by the Court
in Gombocz is once again present and that Licensee failed to establish that the
delay following the Court’s denial of his petition for allowance of appeal should be
chargeable to the Department.       As common pleas determined, Licensee both



                                          5
sought and procured a supersedeas of the civil license suspensions in the criminal
case rather than following the statutory procedure to appeal the suspension;
thereafter, Licensee also failed to advise the Department that there was no longer
an impediment to moving forward with the civil license suspension action. The
mere fact that the Department kept track of “Old Open Statutory Appeal Cases”
and issued a memo to its staff regarding those outstanding cases was insufficient to
cause delay to be attributed to the Department. As that portion of the Department’s
memo regarding Licensee indicated: “[T]his case was never treated as a license
suspension appeal by the civil trial court. The case should be closed out . . . .”6
              Further, the fact that the Department abided by common pleas’
supersedeas order in the underlying criminal case is insufficient ground to charge
the Department with the ensuing delay. It was Licensee’s former attorney who
filed a motion in the underlying criminal case requesting a supersedeas of the civil
license suspensions, thereby assuming the burden to advance the civil case at the
conclusion of the criminal matter.7 Accordingly, the situation in the present case is
analogous to that in Gombocz, where the Supreme Court determined that the
licensee was the moving party and that the delay was thus not attributable to the
Department.


    6
       April 29, 2015, Hearing, Commonwealth Exhibit No. 1, December 11, 2014 Memo from
the Department’s Assistant Chief Counsel, Western Regional Office, to Senior Assistant
Counsel, Western Regional Office, Sub-exhibit No. 4, at 1.
     7
       The February 2010 supersedeas granted by common pleas’ criminal division ceased once
Licensee exhausted the appeal process in his criminal case. In addition, as noted above, because
he failed to take statutory appeals from the Department’s February 2010 notices of suspension,
there was no automatic supersedeas of those suspensions in place under Section 1550 of the
Code pending a final determination by common pleas in its civil capacity. Accordingly, but for
common pleas’ issuance of a January 2015 order directing the Department to stay the
suspensions, there was no impediment to the Department’s reinstating those suspensions.



                                               6
              Accordingly, we affirm.8




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Judge




    8
      Because Licensee failed to satisfy the first prong of the Terraciano test, we do not reach
the question of prejudice.



                                               7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Richard Needham,                  :
                        Appellant      :
                                       :
                v.                     :     No. 1110 C.D. 2015
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                    ORDER


           AND NOW, this 4th day of May, 2016, the order of the Court of
Common Pleas of Erie County is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
