Driver’s License: Suspension Appeal; Prejudice; “Extraordinarily extended period of time”
Gifford v. Commonwealth of Pa., Dep’t of Trans., Bureau of Driver Licensing, 172 A.3d 727 (Pa. Cmwlth. 2017), allocatur granted Apr. 25, 2018, appeal docket 19 MAP 2018
The Supreme Court granted allocatur to review Commonwealth Court’s conclusion that the Delaware County Court of Common Pleas did not err or abuse its discretion when it sustained Gifford’s (Licensee) appeal of a one-year license suspension imposed for his conviction for fleeing or attempting to elude a police officer and reinstated his operating privilege. Judge Cohn Jubelirer, writing for a Commonwealth Court panel that also included Judge McCullough and Senior Judge Colins, held that Licensee met the “extraordinary circumstances” exception announced in Gingrich v. Dep’t of Trans., Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016), notwithstanding that the delay by the county in reporting Licensee’s to PennDOT was, at 2 years and 7 months, a significantly shorter delay than that which occurred in prior decisions in which the exception was applied.
According to the court, the facts were “straightforward and not in dispute”:
On June 6, 2013, Licensee violated Section 3733 of the Code, relating to fleeing or attempting to elude a police officer. On January 10, 2014, Licensee was convicted of this crime by the trial court. On August 8, 2016, the Delaware County Office of Judicial Support (OJS) notified PennDOT of Licensee’s January 10, 2014 conviction. PennDOT mailed a Notice of Suspension, pursuant to Section 1532(b) of the Code, 75 Pa. C.S. § 1532(b), to Licensee on August 16, 2016. The Notice of Suspension stated that Licensee’s operating privilege was suspended for a period of one year effective on September 20, 2016. Licensee timely filed a License Suspension Appeal in the trial court on September 1, 2016.
On November 15, 2016, the trial court held a de novo hearing on Licensee’s appeal, at which PennDOT presented Licensee’s Certified Driving Record, and Licensee was given an opportunity to testify. At this hearing, Licensee did not dispute the January 10, 2014 conviction but testified that he had reformed in the nearly two-year and seven-month period since the conviction. Since the June 6, 2013 violation, Licensee has not had any further violations or convictions. Licensee stated that he is currently employed at 3J’s, a tire business located in Swarthmore, Pennsylvania, where he delivers tires six days a week throughout Pennsylvania. Licensee explained that 90% of his workday involves driving and that he began his employment at 3J’s in approximately early- to mid-2015. Licensee further testified that since being hired at 3J’s, he has looked for supplemental work but has been unable to attain an additional job because of his felony conviction from January 10, 2014. Additionally, Licensee stated that no positions are available at his current job that would not require him to possess a driver’s license. Licensee indicated that he is not confident that he could find another job if he lost his current job at 3J’s.
Licensee resides with his parents, his girlfriend, and his three-year-old daughter. Licensee pays rent and various bills and testified that, even though his girlfriend is employed, his family could not afford to live only on his girlfriend’s income. Additionally, Licensee’s daughter was born with a seizure condition requiring frequent, unplanned emergency trips to the hospital. Further, Licensee testified that he is the only one who drops his daughter off at day care and that he may be the only one available to drive when she needs to go to the hospital because of her condition.
Slip Op. at 2-4 (footnotes omitted).
In sustaining the appeal and reinstating Licensee’s operating privilege, common pleas concluded that although the general rule is that delays attributable to non-PennDOT entities (such as the county OJS) are insufficient to invalidate a license suspension, a limited exception to this rule was announced in Gingrich that allows a trial court to consider delays attributable to non-PennDOT entities in certain circumstances, and that the circumstances of this case were analogous to the facts in Gingrich. Common pleas further found that that the suspension had lost its public protection rationale and instead was being instituted as an additional punitive measure.
PennDOT appealed, and argued that common pleas erred because, under the general rule, a license suspension may only be invalidated based on delay when PennDOT is responsible for an unreasonable delay and a licensee would suffer prejudice because of having his or her operating privilege suspended. To the extent that Gingrich created an exception to this rule, PennDOT argued that Gingrich does not apply here because the two-year, seven-month delay does not amount to an “extraordinarily extended period of time.” Slip Op. at 5.
As described by the panel:
Generally, for a licensee to challenge a license suspension based on 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 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. The Court concluded that this narrow exception is applicable “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.” Id. at 534.
Slip Op. at 5-6. The court noted that there was no dispute that Licensee met the second and third Gingrich factors. Thus, the only question to be decided was if “the nearly two-year, seven-month delay attributable, not to PennDOT, but to the OJS, constitutes an ‘extraordinarily extended period of time.’” Slip Op. at 7.
The court analyzed this question as follows:
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, e.g., 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); Capizzi v. Dep’t of Transp., 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). In addition, the Court has previously held that the trial court erred in not denying a licensee’s appeal where the delay was 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. The delay in this case of approximately two years and seven months falls in between time frames that, post-Gingrich, have been viewed as not an “extraordinarily extended period of time” and those that were.
Moreover, under Section 6323(1)(i) of the Code, 75 Pa. C.S. § 6323(1)(i), the OJS is directed to send a record of the judgment of conviction to PennDOT “within ten days after a final judgment of conviction.” Although this provision is directory, and not mandatory, it is meant to be followed as closely as a mandatory provision with the only difference being that the effect of non-compliance does not render the proceedings illegal and void. Gingrich, 134 A.3d at 533.
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.
Based on this Court’s precedent, the Gingrich factors may be weighed differently by the trial court, based on the circumstances of each case, in examining whether the suspension loses its public protection rationale and becomes merely an additional punitive measure. Thus, the length of the delay may be evaluated in the context of the degree of prejudice. Here, the prejudice shown by Licensee is significant and, in the absence of any additional violations, the trial court could find the length of the delay necessary to constitute an “extraordinarily extended period of time” to be shorter than in a different case.
Slip Op. at 7-10 (footnotes omitted). On this reasoning, the court affirmed common pleas’ “determination that two years and seven months can be an ‘extraordinarily extended period of time’ when considered with the other Gingrich factors, the prejudice shown by the licensee, and the absence or presence of subsequent violations.” Id. at 10. The court also reemphasized that “the Gingrich exception applies only in limited extraordinary circumstances and that the general rule remains that only delays attributable to PennDOT may be grounds for vacating a license suspension based on delay.” Id.
PennDOT sought review by the Supreme Court, and on April 25, 2018, the Court granted PennDOT’s Petition for Allowance of Appeal on the following issue as stated by PennDOT:
Did Commonwealth Court err as a matter of law and abuse its discretion in affirming the trial court’s order rescinding an operating privilege suspension that was imposed less than three years after licensee’s conviction for fleeing or eluding a police officer, where the delay was due to the failure of the Delaware County Office of Judicial Support to timely notify the Department of Transportation of the conviction?
Note: A close review of Gingrich shows that the “extraordinary circumstances” rubric has its origin more in Commonwealth Court’s sense of fairness and equity rather than in any provision of law or court decision. In preparing this post, we reviewed PennDOT’s allocatur petition. From that review we conclude that it remains to be seen whether PennDOT is contesting only the application of Gingrich to a delay of two years and seven months, or if the agency is using this case as a vehicle to invalidate the Gingrich exception in its entirety. Once the parties file briefs and before argument we will update this post to reflect the parties’ contentions.