                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Aaron Naginey                                   :
                                                :   No. 806 C.D. 2017
                 v.                             :
                                                :   Submitted: November 9, 2018
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing,                     :
                  Appellant                     :


BEFORE:          HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge1


OPINION BY
JUDGE McCULLOUGH                                                  FILED: January 3, 2019


                 The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals from the May 11, 2017 order of the Court of Common Pleas of the
Seventeenth Judicial District, Union County Branch (trial court), which sustained the
appeal of Aaron Naginey (Licensee) and rescinded the one-year suspension of his
operating privilege imposed by DOT in accordance with section 3804(e)(2)(i) of the
Vehicle Code (Code), 75 Pa.C.S. §3804(e)(2)(i),2 as a consequence of Licensee’s
conviction for driving under the influence (DUI) in Florida.


        1
            This case was decided before Judge Colins’ service on the Court ended on December 31,
2018.

        2
         Section 3804(e) of the Code provides for a 12-month suspension of the operating privilege
of an individual upon conviction for an ungraded misdemeanor or misdemeanor of the second
degree under section 3802 (relating to driving under the influence of alcohol or a controlled
substance) or an offense which is substantially similar to an offense enumerated in section 3802
reported to DOT under the Driver’s License Compact, 75 Pa.C.S. §§1581-1586.
                           Facts and Procedural History
            The underlying facts of this case are not in dispute. On August 9, 2011,
Licensee committed a DUI violation in Florida. On January 28, 2012, Licensee
committed a DUI violation in Pennsylvania.         Licensee was convicted of his
Pennsylvania DUI violation on November 19, 2012. He was convicted of his Florida
DUI violation on March 12, 2013. However, Florida did not mail notification of the
Florida DUI conviction to DOT until April 22, 2016, more than three years after his
conviction in that state. DOT processed the notice from Florida on June 23, 2016.
One week later, by notice dated June 30, 2016, DOT advised Licensee that his
operating privilege would be suspended for a period of one year as a result of his
Florida DUI conviction.
            Licensee filed a timely appeal with the trial court, which conducted a de
novo hearing on May 11, 2017. At this hearing, DOT introduced, and the trial court
admitted, a certified packet of documents evidencing his Pennsylvania and Florida
DUI convictions, the notice received from authorities in Florida, the notice received
from the clerk of courts regarding his Pennsylvania DUI conviction, DOT’s June 30,
2016 notice of suspension, and Licensee’s driving record.      (Reproduced Record
(R.R.) at 17a-21a, 41a-42a.)
            Licensee testified on his own behalf. Licensee indicated that he has
worked as a speech language pathologist for a local school district and a healthcare
company since 2007 and 2011, respectively. He explained that his work for the
healthcare company, which he began in 2011 when he and his wife were expecting a
baby and she could no longer work, involved providing home healthcare and
traveling to the individuals’ homes. However, he identified a notice that he received
from DOT dated September 8, 2011, effectively cancelling his license as of October
13, 2011, based on information received from the state of Florida reflecting that his


                                         2
operating privilege was suspended. He also identified a restoration requirements
letter that he received from DOT dated September 23, 2013, explaining the procedure
for restoring his operating privilege, including providing DOT with a clearance letter
from Florida. He obtained the necessary clearance letter that same day, as evidenced
by Licensee Exhibit 3. This letter provided that Licensee’s operating privilege was
not revoked, suspended, or cancelled in Florida. Finally, Licensee identified a notice
that he received from DOT effectively restoring his operating privilege as of
September 23, 2013. (R.R. at 58a-62a, 121a-127a.)
             Licensee testified that his operating privilege was suspended/cancelled
by DOT for a period of approximately two years from October 2011 through
September 2013 as a result of information DOT received from Florida. Licensee
indicated his belief that his operating privilege was suspended in Florida as a result of
a DUI charge he incurred on August 8 or 9, 2011. Licensee noted that his second job
essentially ceased due to the loss of his operating privilege. Upon restoration of his
operating privilege in September 2013, Licensee began building a client base in his
second job. If he were to lose his operating privilege again, Licensee testified that he
would not be able to continue with this home healthcare job, which itself generated
$29,000.00 in income in 2016. (R.R. at 63a-72a.)
             On cross-examination, Licensee acknowledged his Florida DUI and his
Florida conviction on March 12, 2013, which included a six-month suspension of his
operating privilege. Upon expiration of this six-month suspension in September
2013, Licensee stated that he sought and obtained a clearance letter from the
authorities in Florida. (R.R. at 74a-77a.)
             At the conclusion of the hearing, the trial court sustained Licensee’s
appeal and rescinded DOT’s one-year suspension of his operating privilege,
concluding that the delay of approximately 37 months between Licensee’s Florida


                                             3
DUI conviction and the notice to Pennsylvania was extraordinary, unreasonable, and
prejudicial to Licensee. The trial court relied on this Court’s previous decision in
Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528
(Pa. Cmwlth. 2016), in reaching its decision. While Licensee had a DUI violation in
Pennsylvania shortly after his Florida DUI, the trial court noted that Licensee’s blood
alcohol content was less than .10% in both DUIs, thereby qualifying as the lowest tier
DUI offense in Pennsylvania, and that the licensee in Gingrich had two DUIs within
the interim period between her conviction and suspension, one of which, unlike this
case, involved a chemical test refusal. (R.R. at 97a-100a.) The trial court issued an
order that same day reflecting its ruling. (R.R. at 128a.)
              DOT thereafter filed a notice of appeal with the trial court. By order
dated July 11, 2017, the trial court directed DOT to file a concise statement of errors
complained of on appeal in accordance with Pa.R.A.P. 1925(b). DOT complied and
alleged in this statement that the trial court erred as a matter of law in sustaining
Licensee’s appeal and rescinding the one-year suspension because the delay in
issuing this suspension was not attributable to DOT but to another entity, i.e.,
authorities in Florida.     DOT noted that the suspension letter was issued within one
week of it receiving notice from Florida of Licensee’s DUI conviction in that state.
DOT also argued that Gingrich was inapplicable here in light of Licensee’s
intervening DUI in this Commonwealth on November 19, 2012. (R.R. at 137a-41a.)
In lieu of filing an opinion in accordance with Pa.R.A.P. 1925(a), the trial court
issued an order dated August 3, 2017, referring the Superior Court to the transcript of
the May 11, 2017 hearing for its reasons underlying its decision.3 (R.R. at 144a.)


       3
         The trial court mistakenly referred to the Superior Court in this order. DOT’s appeal was
properly filed in this Court.



                                                4
                                            Discussion
               On appeal,4 DOT reiterates its argument that the trial court erred as a
matter of law in sustaining Licensee’s appeal on the basis of an unreasonable delay in
imposing his suspension for the Florida DUI. We disagree.
               Historically, to challenge a license suspension based on unreasonable
delay, a licensee bore the burden of establishing: “(1) that there was an unreasonable
delay that was attributable to DOT; and (2) that the delay caused her to believe that
her operating privileges would not be impaired and that she relied on this belief to her
detriment.” Pokoy v. Department of Transportation, Bureau of Driver Licensing, 714
A.2d 1162, 1164 (Pa. Cmwlth. 1998) (emphasis in original). As to the unreasonable
delay prong, this Court explained:

               Regarding the first element of this two-step analysis, the
               law is settled that, where DOT is not guilty of
               administrative delay, any delay caused by the judicial
               system (e.g., the Clerk of Courts) not notifying DOT in a
               timely manner, will not invalidate a license suspension that
               is authorized by the Code and imposed by DOT. In
               determining whether there was an unreasonable delay
               attributable to DOT, the relevant time period is that between
               the point at which DOT receives notice of the driver’s
               conviction from the judicial system and the point at which
               DOT notifies the driver that her license has been suspended
               or revoked. In other words, only an unreasonable delay by
               DOT, and not the judicial system, invalidates [DOT’s]
               license suspension.
Id. (emphasis in original) (internal citations omitted). Otherwise stated, the general
rule was that only a DOT delay, not one caused by the judicial system, would suffice

       4
         Our scope of review is limited to determining whether the findings of fact are supported by
substantial evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6
A.3d 1067, 1070 (Pa. Cmwlth. 2010).


                                                  5
to invalidate a license suspension. Therefore, if DOT timely suspended the license
after receiving notice from the courts of a qualifying conviction, the suspension
would stand.
               However, this Court in Gingrich recognized a narrow exception to the
general rule for what we called “limited extraordinary circumstances.” 134 A.3d at
534.   In Gingrich, the York County Clerk of Courts did not notify DOT of a
licensee’s 2004 DUI conviction until October 10, 2014.           DOT then notified the
licensee of the one-year license suspension within 14 days of receiving notification of
the triggering conviction. The licensee appealed, arguing the 10-year delay between
her conviction and the attendant license suspension violated her right to due process.
A court of common pleas found the delay was unreasonable, but affirmed the
suspension based on the above-referenced general rule because DOT was not
responsible for the delay. This Court ultimately reversed the order of the court of
common pleas and remanded the matter to that court to vacate the suspension.
               We explained,

               the requirement that the delay be attributable to [DOT]
               before it may be actionable lies in the differing
               responsibilities of the judicial and executive branches and
               serves an important public safety purpose, and we
               emphasize that this remains the general rule. That said,
               however, we have concluded 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. Where a conviction is not
               reported 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 is able
               to demonstrate prejudice, it may be appropriate for common
               pleas to grant relief.




                                             6
Id. Nevertheless, we declined to create a bright-line rule for determining when a
delay becomes extraordinary, simply noting that the 10-year delay in that case met
the extraordinary standard.5 Id. at 534-35.
                Recently, this Court revisited and clarified the first Gingrich factor in
Middaugh v. Department of Transportation, Bureau of Driver Licensing, __ A.3d ___
(Pa. Cmwlth., No. 815 C.D. 2017, filed October 31, 2018).                   In Middaugh, the
Delaware County Office of Judicial Support (OJS), which performs the duties of the
clerk of court in Delaware County, failed to notify the Department of a licensee’s
DUI conviction until two years and four months after the conviction. Fifteen days
after receiving notification from OJS, the Department notified the licensee that his
operating privilege would be suspended for a year per statute. The licensee appealed
and, at a hearing before a court of common pleas, testified that he would be
prejudiced by the imposition of the suspension years after his conviction because of
numerous changes to his life circumstances since his conviction, specifically: he was
no longer married and was no longer working due to a worsening neurological
condition for which he had gone on total disability after his DUI conviction. The
licensee further testified that he needed to drive himself to medical appointments that
were not within either walking or biking distance from his home; he had no family
who could help him with rides; due to his fixed income, he could not afford to take

       5
         We applied Gingrich in Gifford v. Department of Transportation, Bureau of Driver
Licensing, 172 A.3d 727 (Pa. Cmwlth. 2017), appeal granted, 184 A.3d 548 (Pa. 2018). In Gifford,
the Delaware County Office of Judicial Support delayed in informing DOT of the licensee’s
conviction for fleeing and eluding, which resulted in a one-year suspension of the licensee’s
operating privilege, for a period of two years and seven months. During that time period, the
licensee had become a delivery driver for a tire business and had no further violations or
convictions. We reiterated the lack of a bright-line rule for determining whether a delay is
extraordinary and noted that common pleas courts must analyze this issue on a case-by-case basis.
Ultimately, given the facts of that case, we concluded that a court of common pleas did not err in
applying the Gingrich exception and sustaining the licensee’s appeal.


                                                7
taxis or Uber; and his health insurance would not cover transportation costs.
Applying the Gingrich factors, the court of common pleas found that the two-year,
four-month delay in imposing the license suspension was unreasonable, that the
licensee had no further violations for a significant number of years, and that the
licensee would be prejudiced by the loss of his license. Accordingly, the court of
common pleas sustained the licensee’s appeal and ordered the reinstatement of the
licensee’s operating privilege. The Department appealed.
               This Court affirmed the decision of the court of common pleas on
appeal. We closely examined the statutory framework of, and this Court’s case law
regarding, license suspensions in relation to the first Gingrich factor, i.e.,
extraordinary delay. The Court then refined the first Gingrich factor by examining
further objective criteria that common pleas courts should consider to determine
whether a non-Departmental license suspension imposition delay qualifies as
extraordinary:       (1) the 10-day common pleas court-to-Department reporting
requirement established by Section 6323(1)(i) of the Vehicle Code,6 and (2) the
       6
         Section 6323(1)(i) requires trial courts to report license suspension-qualifying convictions
to the Department within 10 days as follows:

               Subject to any inconsistent procedures and standards relating to
               reports and transmission of funds prescribed pursuant to Title 42
               (relating to judiciary and judicial procedure):

                      (1) The following shall apply:

                              (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),
                              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
(Footnote continued on next page…)

                                                 8
length of the underlying statutory suspension pursuant to 75 Pa.C.S. §3804(e). After
examining these further objective criteria, we concluded:

              [I]f 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. 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.

Middaugh, ___ A.3d at ___, slip op. at 23 (footnote omitted). This Court then found
that the court of common pleas did not err in concluding that the two-year, four-
month delay in Middaugh was an extraordinary delay based on the objective
measurement provided by the Court’s pronouncement.
              Here, DOT sought to impose a one-year suspension of Licensee’s
operating privilege following a 37-month delay by the Florida authorities in reporting
Licensee’s conviction. This 37-month delay clearly exceeds the applicable period of
Licensee’s license suspension (one year) plus 10 days, and the record provides no
explanation for the delay. Therefore, provided the other Gingrich factors were met,
the trial court could grant relief in accordance with Middaugh.7 With respect to these


(continued…)

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

75 Pa.C.S. §6323(1)(i).

       7
          While DOT suggests that this Court declare that the Gingrich exception only applies to
delays in excess of 10 years, given that the General Assembly set forth a 10-year “lookback” period
in section 3806 of the Code, 75 Pa.C.S. §3806 (relating to the imposition of harsher penalties for
multiple DUI offenses), we reject that suggestion in light of our recent opinion in Middaugh.


                                                9
other factors, the record reflects that Licensee had a second DUI conviction in this
Commonwealth on November 19, 2012 (resulting from an arrest on January 28,
2012), which would seemingly preclude satisfaction of the second Gingrich factor.
However, this second factor simply discusses a lack of further violations for a
significant number of years before the report is finally sent, which in this case did not
occur until April 22, 2016.     Hence, with the exception of a speeding ticket in
December 2014, Licensee remained free of violations for a period of approximately
51 months.
             However, as the trial court noted, the licensee in Gingrich also had two
DUI convictions, one in 2004 and another in 2006, but otherwise maintained a clean
driving record during the roughly 96-month delay between her second DUI
conviction and the reporting of her 2004 conviction to DOT.             Similar to our
conclusion in Gingrich that a clean driving record for a period of 96 months was
sufficient to meet the second prong, we likewise conclude that Licensee’s clean
driving record for a period of 51 months met this prong. Further, we note that in the
present case, the record reflects that DOT effectively suspended Licensee’s operating
privilege for a period of approximately 25 months following his Florida DUI arrest.
At the May 11, 2017 de novo hearing before the trial court, Licensee submitted a
letter from DOT dated September 8, 2011, notifying him that his right to a driver’s
license was “being denied due to information received from the State of FLORIDA,”
as well as a restoration requirement letter from DOT dated September 23, 2013. See
R.R. at 121a-24a.
             With respect to the third Gingrich factor, i.e., prejudice, the trial court
essentially credited Licensee’s testimony that during the 37-month delay in reporting
his Florida DUI conviction, Licensee established a client base with regard to a
second, home healthcare job, that he had no means of maintaining this job and


                                           10
providing care to his clients without a license, and that he “developed a lifestyle and
incurred liabilities based on the assumption that he would have [the second] job.”
(R.R. at 97a.) We agree with the trial court that such testimony was sufficient to
meet the third prong of Gingrich.


                                      Conclusion
             In light of this Court’s recent decision in Middaugh, and because
Licensee presented sufficient evidence establishing that he met each of the three
prongs for application of the “limited extraordinary circumstances” exception set
forth in Gingrich, we cannot conclude that the trial court erred as a matter of law in
sustaining Licensee’s appeal and rescinding the one-year suspension of his operating
privilege imposed by DOT.
             Accordingly, the order of the trial court is affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Aaron Naginey                         :
                                      :    No. 806 C.D. 2017
            v.                        :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing,           :
                  Appellant           :


                                    ORDER


            AND NOW, this 3rd day of January, 2019, the order of the Court of
Common Pleas of the Seventeenth Judicial District, Union County Branch, dated
May 11, 2017, is hereby affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
