Civil license suspension appeal based on delay; Gingrich factors

Middaugh v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 196 A.3d 1073 (Pa. Cmwlth. 2018), allocatur granted May 14, 2019, appeal docket 45 MAP 2019.

The Supreme Court granted allocatur in this case involving Commonwealth Court’s application of the factors set forth in Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016) (en banc) to a license suspension challenge based on a 2-year, 4-month delay in the Delaware County Office of Judicial Support’s (OJS) reporting of a DUI conviction to the Department of Transportation.

In 2013, Steven Middaugh (Licensee) was arrested for driving under the influence in violation of Section 3802(a)(2) of the Vehicle Code, 75 Pa. C.S. § 3802(a)(2). Middaugh pled guilty to the DUI charge,  resulting, among other things,  in a 1-year suspension of his driving privileges. The Delaware County Office of Judicial Support’s (OJS) acts as the clerk of court and has the responsibility to electronically notify the Department of Transportation, Bureau of Driver Licensing (Department) of any licensee’s convictions.  OJS failed to electronically notify the Department of Middaugh’s DUI conviction until 2 years and 4 months after the conviction, at which time, the Department promptly sent a letter to Middaugh informing him that his license would be suspended for 1 year. Middaugh appealed the license suspension to the Court of Common Pleas of Delaware County based on the Department’s failure to notify him of his conviction within the 10-day notification period.

When there is a delay in reporting a licensee’s conviction for violating 75 Pa. C.S. §§ 101-9805 of the Vehicle Code, even if the delay is not the Department of Transportation’s fault, the Commonwealth Court held in Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016) (en banc) that if the licensee can demonstrate the following three factors, then a civil license suspension appeal may be sustained upon the basis of the delay:

First, the licensee must demonstrate that there was an extraordinarily extended delay in the reporting of the licensee’s conviction, Second, the licensee must demonstrate that the licensee had no further violations of the Vehicle Code for an extended period. Third, the licensee must demonstrate that the licensee suffered prejudice as a result of the delay.

Slip Op. at 2-3. Most often, including in the Middaugh case, the first factor, which determines if the non-Departmental delay is an “extraordinarily extended period of time,” is the main issue reviewed on appeal. The trial court found that the delay in Middaugh satisfied the Gingrich factors because (1) OJS’s 2 year, 4-month delay in reporting Middaugh’s conviction to the Department was an “extraordinarily intended period of time,” (2) Middaugh did not have “any further violations for significant number of years,” and (3) Middaugh would suffer prejudice by imposition of the license suspension at the later date because of a delayed vehicle purchase and changes to Licensee’s employment and medical situations. Slip Op. at 6.

The Department appealed to Commonwealth Court arguing that the 2-year, 4-month delay caused by OJS was not for an extraordinarily extended period of time as required by Gingrich, Therefore, the Department argued the general rule in Pokoy v. Dep’t of Transp., Bureau of Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998), that only an unreasonable delay chargeable to the Department can override the license suspension requirement, should apply because the extraordinary circumstances that led Commonwealth Court to deviate from that rule in Gingrich were not present in Middaugh’s case.

Upon review of the statutory framework of the Vehicle Code, specifically Sections 6323(1)(i) and Section 3804(e), Commonwealth Court explained that the purpose of the suspension is to promptly remove unsafe drivers from the road, as evidenced by the Vehicle Code’s requirement that the clerk of court, in this case OJS, had the obligation to notify the Department within 10 days of conviction, and then the Department must suspend the license for the required time:

These two sections of the Vehicle Code impose complementary statutory obligations on the clerks of court, to send notice of conviction to the Department within 10 days, and on the Department, to suspend the license for the requisite period upon receipt of the notice of conviction. Our courts have interpreted these Vehicle Code provisions as evidencing the General Assembly’s intent to “keep unsafe drivers off the highways for stated periods” of time, Green, 546 A.2d at 769, in order to protect “the traveling public,” Chappell v. Commonwealth¸ 430 A.2d 377, 379 (Pa. Cmwlth. 1981). This intent is effectuated by suspending the licenses of dangerous drivers and doing so quickly—in temporal proximity to the offense that created the safety concern. To fulfill the General Assembly’s intent, both the Department and the clerks of court must promptly perform their statutory obligations; if there is a delay be either of them, the result is the same – the unsafe driver will not be removed from the road timely.

Slip Op. at 12.

Although the Vehicle Code on its face requires prompt action by both the clerk of courts and the Department, the Court explained that, in general,  reporting delays by the clerks of court has not been (absent an extraordinary delay of years) a basis for granting relief from license suspension, whereas delays by the Department in implementing the suspension once it receives notice has been  a much more frequent basis for granting relief from license suspension. The Court observed, however, that  technology now makes it easier for clerks of court to report, and allows easier detection and correction of any delays on transmittals of any notice of conviction. Slip Op. at 15.

After summarizing the law relating to delays in clerks of court reporting starting with Gingrich, and the law relating to delays by the Department in implementing suspensions once the Department receives notice of the conviction from the clerk of courts, the Commonwealth Court formulated a new test to gauge “excessive delay” in the reporting of the conviction by the clerk of court to the Department, and used the new test to affirm the trial court’s decision to override the Department’s clerk of courts-caused delayed suspension in this case:

Applying these two objective periods of time set forth by the General Assembly, we conclude that if 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. When applied here, common pleas did not err in finding that the 2-year and 4-month delay was an extraordinarily extended period of time because it exceeded the 1-year license suspension the Department sought to impose on Licensee plus 10 days. For these reasons, common pleas could find that the delay here met the first Gingrich factor.

Slip Op. at 22-23 (emphasis added) (footnote omitted).

Under this approach, if a clerk of courts reports the conviction to the Department “within the applicable suspension plus 10 days” (in this case, within 374 days), the delay is per se  not “an extraordinarily extended period of time” so as to satisfy the first prong of the Gingrich three factor test.

Commonwealth Court went on to affirm the trial court’s decision to reverse Middaugh’s license suspension, concluding:

Finally, we note that although our analysis has primarily focused on the impact untimely suspensions have on the public safety purpose of license suspensions, the application of these criteria, the 10-day reporting requirement and the length of the suspension sought to be imposed, also address the due process and fairness concerns raised in Gingrich. The statutory provisions provide objective criteria against which all courts of common pleas can measure a particular delay in the reporting of a licensee’s conviction to the Department. Applying these objective criteria to determine if the first Gingrich factor is met, and determining whether the other two Gingrich factors are satisfied, balances the General Assembly’s intent that unsafe drivers be timely removed from the road following a conviction and the public safety purpose of license suspensions, while also being sensitive to the due process concerns that may arise when a delay reaches the point where the license suspension has lost its public safety purpose and has become an additional punishment imposed too long after the fact.

Slip Op. at 24.

Judge Covey, in the concurring and dissenting opinion, agreed with the Majority’s holding that given the delay in clerk of court reporting, suspension of Middaugh’s driving privileges did not benefit the public interest, but rather was additional punishment imposed by delay. However, she did not agree with Majority’s statement that there was no bright line test for “extraordinarily extended” delay then subsequently creating a rule by concluding the delay cannot be “less than the total of the suspension time plus 10 days.” Slip Op. at AEC – 1. Judge Covey opined that this distinction unfairly prejudices a “licensee who receives his suspension after his suspension time has lapsed, but before the additional 10 days has run, or anytime close thereto but before the actual suspension time plus 10 days has expired. Slip Op. at AEC –2. Judge Covey suggested that the Court revisit and abandon Gingrich because any delay that is over 190 days meets the “extraordinarily extended” test and the prejudice factor should be abolished as lacking any real significance because delay in reporting is inherently prejudicial. Slip Op. at AEC –2. Judge Covey stated that the trial court should, when faced with non-departmental delay in notice of a license suspension, consider: “(1) The suspension time and the 10-day reporting requirement when evaluating the length of the delay; and (2) whether the licensee has been without further incident since his current offense, and the existence of any prior offense(s) and, if so, the length of time before his current offense.” Slip Op. at AEC – 3.

In dissent, Judge Ceisler criticized the Majority as stretching application of the Gingrich exception, reasoning:

Because the Gingrich exception has been stretched beyond recognition and has created inconsistent results, I strongly believe this Court should abrogate Gingrich. By doing so, we would be required to apply our established pre-Gingrich precedent, which holds that in order to challenge an unreasonable delay between a licensee’s conviction and notice of suspension, the delay must be attributable to the Department. See, e.g., Pokoy v. Dep’t of Transp., Bureau of Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998). The Pokoy decision has not been abrogated or reversed and remains good law. Because there was no delay attributable to the Department in this case, I would reverse the Trial Court’s decision.

Slip Op. at EC-4.

The Supreme Court granted allocatur to consider the following issue:

Did the 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 [Middaugh]’s driving under the influence (DUI) conviction, where the delay was entirely due to the failure of the Delaware County Office of Judicial Support to timely notify the Department of Transportation of the conviction?