         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Quinn Taylor                            :
                                        :
            v.                          :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :   No. 1314 C.D. 2017
                  Appellant             :   Submitted: November 9, 2018


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge



OPINION
BY JUDGE FIZZANO CANNON                     FILED: December 6, 2018


            The Commonwealth of Pennsylvania, Department of Transportation
(Department), Bureau of Driver Licensing (Bureau), appeals from the September 5,
2017 order of the Court of Common Pleas of Allegheny County (trial court)
sustaining the statutory appeal of Quinn Taylor (Licensee) from an 18-month
suspension of his operating privilege imposed following Licensee’s conviction for
driving under the influence of alcohol (DUI). Upon review, we affirm.
            On May 28, 2013, Licensee was convicted in the trial court of DUI
graded as a first-degree misdemeanor. See Allegheny County Court of Common
Pleas Docket No. CP-02-CR-0014534-2012 at 5 & 9. Over 3 years and 3 months
later, on August 31, 2016, the Allegheny County Department of Court Records
transmitted certification of Licensee’s conviction to the Bureau. Eight days after
receiving the trial court’s certification, on September 8, 2016, the Bureau mailed
Licensee notice of the mandatory 18-month license suspension resulting from his
DUI conviction, effective October 13, 2016.
              On October 3, 2016, Licensee appealed the license suspension, and the
trial court conducted a hearing on June 22, 2017. On September 5, 2017, the trial
court entered an order sustaining Licensee’s appeal. The Bureau timely appealed.1
              On appeal, the Bureau claims the trial court erred in sustaining
Licensee’s statutory appeal of his license suspension because the Bureau imposed
the suspension by official notice sent only eight days after the Bureau received the
certified notice of Licensee’s qualifying conviction from the Allegheny County
Department of Court Records. See Bureau’s Brief at 4 & 10-21. We disagree.
              The Vehicle Code, 75 Pa. C.S. §§ 101–9805, mandates an 18-month
suspension of driving privileges upon a first-degree misdemeanor DUI conviction.
75 Pa. C.S. § 3804(e). To that end, the Vehicle Code provides, in pertinent part:

              Suspension of operating privileges upon conviction.—

              (1) The department shall suspend the operating privilege
              of an individual under paragraph (2) upon receiving a
              certified record of the individual’s conviction of or an
              adjudication of delinquency for:

                      (i) an offense under section 3802;[2]

              ...


       1
         “Our standard of review in a license suspension case is to determine whether the factual
findings of the trial court are supported by competent evidence and whether the trial court
committed an error of law or an abuse of discretion.” Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
       2
        Section 3802 prohibits driving under the influence of alcohol or controlled substances.
75 Pa.C.S. § 3802.
                                               2
               (2) Suspension under paragraph (1) shall be in accordance
               with the following:

               ...

                     (ii) 18 months for a misdemeanor of the first degree
                     under this chapter.

75 Pa. C.S. § 3804(e). Per the statute, receipt from the trial court of the certified
record of a conviction triggers the Department’s obligation to suspend a driver’s
license. Id.
               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 [the Department]; 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. Dep’t of Transp., 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 [the Department] is not guilty of
               administrative delay, any delay caused by the judicial
               system (e.g., the Clerk of Courts) not notifying [the
               Department] in a timely manner, will not invalidate a
               license suspension that is authorized by the Code and
               imposed by [the Department]. In determining whether
               there was an unreasonable delay attributable to [the
               Department], the relevant time period is that between the
               point at which [the Department] receives notice of the
               driver’s conviction from the judicial system and the point
               at which [the Department] notifies the driver that her
               license has been suspended or revoked. In other words,
               only an unreasonable delay by [the Department], and not

                                            3
             the judicial system, invalidates [the Department’s] license
             suspension.

Id. (internal citations omitted) (emphasis in original). Otherwise stated, the general
rule was that only a Department delay, not one caused by the judicial system, would
suffice to invalidate a Department license suspension. Therefore, if the Department
timely suspended the license after receiving notice from the courts of a qualifying
conviction, the suspension would stand.
             However,     this   Court     recognized   a   narrow     “extraordinary
circumstances” exception to the general rule in Gingrich v. Department of
Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016). In
Gingrich, the York County Clerk of Courts did not notify the Department of a
licensee’s 2004 DUI conviction until October 10, 2014. Id. at 529. The Department
then notified the licensee of the one-year license suspension within 14 days of
receiving notification of the triggering conviction. Id. Licensee appealed, arguing
the 10-year delay between her conviction and the attendant license suspension
violated her right to due process.       Id.   The trial court found the delay was
unconscionable, but affirmed the suspension based on the above-referenced general
rule because the Department was not responsible for the delay. Id. at 530. This
Court affirmed the general rule of unreasonable delay, but reversed the suspension,
concluding that limited circumstances can exist where a non-Department delay could
warrant the vacation of a license suspension.
             We explained the extraordinary delay exception as follows:

             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

                                           4
             report is finally sent, and is able to demonstrate prejudice,
             it may be appropriate for common pleas to grant relief.

Gingrich, 134 A.3d at 534. This Court explained that this exception was to be
narrowly construed and was meant to apply only “where the suspension [imposed
long after the fact] loses its public protection rationale and simply becomes an
additional punitive measure.” Id. Additionally, we declined to create a bright-line
rule for what period of time would constitute an “extraordinarily extended period of
time,” noting that the determination must be made on a case-by-case basis. Id. at
534 & 535 n.7. Thus, we found that the facts at hand–a 10-year delay in license
suspension imposition, no further incidents with the law, and prejudice in that the
licensee would have chosen a different school for her children and would likely lose
her job if her license was suspended–warranted the application of the extraordinary
delay exception because, after 10 years, the license suspension lost its “underlying
public safety purpose” and became “a punitive measure sought to be imposed too
long after the fact.” Id. at 535.
             Following Gingrich, this Court ruled both in favor of and against the
application of the extraordinary delay exception. See Capizzi v. Dep’t of Transp.,
Bureau of Driver Licensing, 141 A.3d 635 (Pa. Cmwlth. 2016) (7-year, 10-month
delay warranted vacating suspension); Eckenrode v. Dep’t of Transp., Bureau of
Driver Licensing (Pa. Cmwlth., No. 168 C.D. 2015, filed July 14, 2016) (9-year
delay); Orwig v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No.
286 C.D. 2015, filed June 3, 2016) (10-year delay); but see Nercesian v. Dep’t of




                                          5
Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 1795 C.D. 2016, filed June
12, 2017)3 (nearly 5-month delay not an extraordinarily extended period of time).
             On comparable time periods to the 3-years, 3-months involved in the
instant matter, the Court has made three recent pronouncements. In one case, the
Court found that a 2-year, 7-month delay could be considered an extraordinarily
extended period of time where the licensee had no subsequent violations and
established that he would be prejudiced by a license suspension. See Gifford v. Dep’t
of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 386 C.D. 2017, filed Oct.
24, 2017). The Court has also stated, albeit in dicta, that a 3-year delay occasioned
by a non-Department entity could potentially be considered an extraordinarily
extended period of time, triggering the Gingrich exception. See Currie v. Dep’t of
Transp., Bureau of Licensing, 142 A.3d 186, 189 n.4 (Pa. Cmwlth. 2016). On the
other hand, in a separate matter, the Court found that the licensee failed to meet the
Gingrich prongs and was not entitled to the application of the extraordinary delay
exception where, despite a 2-year delay, the licensee had a subsequent criminal
violation shortly after the violation at issue. See Janes v. Dep’t of Transp., Bureau
of Driver Licensing (Pa. Cmwlth., No. 369 C.D. 2017, filed Oct. 24, 2017).
             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 Oct. 31, 2018). In Middaugh, the trial
court failed to notify the Department of a licensee’s DUI conviction until 2 years
and 4 months after the conviction. Id., __ A.3d ___, slip op. at 3-4. Fifteen days
after receiving notification from the trial court, the Department notified the licensee

      3
         While this Court’s unreported memorandum opinions may not be cited as binding
precedent, they may be cited for persuasive value. Commonwealth Court Internal Operating
Procedure § 414(a), 210 Pa. Code § 69.414(a).
                                           6
that his operating privilege would be suspended for a year per statute. Id., __ A.3d
___, slip op. at 4. The licensee appealed and, at a hearing before the trial court,
testified that he would be prejudiced by the imposition of the suspension years after
his conviction because he had undergone 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. Id., __ A.3d ___, slip op. at 5-6. 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 taxis
or Uber, and his health insurance would not cover transportation costs. Id. Applying
the Gingrich factors, the trial court found that the 2-year, 4-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. Id., __ A.3d ___, slip op. at 6. Accordingly, the trial court
sustained the licensee’s appeal and ordered the reinstatement of the licensee’s
operating privilege. Id. The Department appealed. Id.
             This Court affirmed the trial court on appeal. Id., __ A.3d ___, slip op.
at 25. The Court closely examined the statutory framework of, and this Court’s case
law regarding, license suspensions in relation to the first Gingrich factor:
extraordinary delay. Id., __ A.3d ___, slip op. at 10-19. The Court then refined the
first Gingrich factor by examining further objective criteria that trial courts should
consider to determine whether a non-Departmental license suspension imposition
delay qualifies as extraordinary: (1) the 10-day trial court-to-Department reporting


                                          7
requirement established by Section 6323(1)(i) of the Vehicle Code,4 and (2) the
length of the underlying statutory suspension pursuant to 75 Pa. C.S. § 3804(e). Id.,
__ A.3d ___, slip op. at 19-25. 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.




       4
        Section 6323 requires trial courts to report license suspension qualifying convictions to
the Department within 10 days as follows:

              § 6323. Reports by courts

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

75 Pa. C.S. § 6323.


                                                 8
Id., __ A.3d ___, slip op. at 23 (footnote omitted). This Court then found the trial
court did not err in concluding that the 2-year, 4-month delay in Middaugh was an
extraordinary delay based on the objective measurement provided by the Court’s
pronouncement. Id., __ A.3d ___, slip op. at 25.
              Here, the Department sought to impose an 18-month license suspension
following a 3-year, 3-month reporting delay by the trial court.5 This 39-month delay
exceeds the applicable period of Licensee’s license suspension (18 months) 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 under Middaugh.
              The record reveals that Licensee has received no additional traffic
violations or criminal convictions since his DUI conviction.                    See Notes of
Testimony, June 22, 2017 (N.T.) at 7-8. Additionally, the record indicates that
Licensee, assuming his license was suspended, unsuccessfully attempted to
surrender his license to the Department two times, and then acquired a non-license
state identification card and voluntarily ceased driving for 18 months.6 N.T. at 10-
13. Further, Licensee incurred student loans, completed a course of education to
become an electrician, and then took a license-dependent salaried job as an
electrician, all assuming that his license suspension would have expired by the time
he completed his studies and got his job, at which he has succeeded and advanced.
N.T. at 17-18; Trial Court Opinion at 3. The trial court also expressly noted that the
Allegheny County Department of Court Records failed to transmit certification of


       5
         No party argues that the Department did not act in a timely fashion to impose the
suspension upon the transmission and certification of Licensee’s conviction from the trial court.
       6
         The trial court found credible Licensee’s testimony that he ceased driving from June 9,
2013, through February 25, 2015. Trial Court Opinion at 2-3.

                                               9
Licensee’s conviction as required by Section 6323 of the Vehicle Code. See Trial
Court Opinion at 3. Based on the above evidence and findings, the trial court
correctly applied the Gingrich factors and sustained Licensee’s appeal of his license
suspension. See id. at 4.
             For the above reasons, the trial court properly sustained Licensee’s
appeal of his license suspension. See Middaugh. Accordingly, we affirm.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge



Judge Cohn Jubelirer did not participate in the decision of this case.
Judge Ceisler dissents.




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Quinn Taylor                         :
                                     :
           v.                        :
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing,          :   No. 1314 C.D. 2018
                  Appellant          :

                                ORDER


           AND NOW, this 6th day of December, 2018, the September 5, 2017
order of the Court of Common Pleas of Allegheny County is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Quinn Taylor                             :
                                         :
             v.                          :   No. 1314 C.D. 2017
                                         :   Submitted: November 9, 2018
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing,              :
                         Appellant       :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


CONCURRING OPINION
BY JUDGE SIMPSON                         FILED: December 6, 2018

             I acknowledge that the Majority opinion in this case is consistent with
the Majority opinion in this Court’s recent en banc decision in Middaugh v.
Department of Transportation, Bureau of Driver Licensing, ___ A.3d ___ (Pa.
Cmwlth., No. 815 C.D. 2017, filed October 31, 2018). Because I disagree with the
Majority opinion in Middaugh, however, I write separately.


             Primarily, I disagree that the passage of three years and three months
is an extraordinarily extended period of time as a matter of law, within the analysis
of Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134
A.3d 528 (Pa. Cmwlth. 2016). Instead, I believe the extraordinary delay evaluation
entails a mixed question of law and fact, and that some testimony must be offered
by the licensee to establish the very unusual nature of the delay. Within the
framework of a delay attributable to a county clerk of court’s office, some
testimony by a clerk should be offered as to what delay, if any, is usual in
processing convictions entailing automatic drivers’ license suspensions. Where, as
here, such baseline evidence is lacking, no evaluation of extraordinary delay can be
made.    In such a circumstance, remand to the Court of Common Pleas of
Allegheny County for additional evidence is necessary.


            For these reasons, I concur in the result only.




                                ROBERT SIMPSON, Judge




                                      RES - 2
