IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ryan William Lieberman : :
v. : No. 1047 C.D. 2021
: Submitted: March 11, 2022 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER

, President Judge

HONORABLE ELLEN CEISLER , Judge HONORABLE STACY WALLACE , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WALLACE FILED: April 29, 2022

The Commonwealth of Pennsylvania , Department of Transportation, Bureau of Driver Licensing (DOT) appeals the September 1 0 , 2021 order of the Court of Common Pleas of Northampton County ( the trial court ), which sustained Ry an William Lieberman’s (Lieberman) dri ver’s license suspension appeal, thereby prohibiting DOT from enforcing a five

- year suspension of Lieberman’s operating privilege following his third conviction for a driving under the influence (DUI)
offense

. On appeal, DOT argues that the trial court er red as a matter of law by failing to apply this Court’s bright

- line rule that a delay between a DUI conviction and a notice of license suspension is not an extraordinary delay unless it exceeds the period2

of the license suspension plus 10 days. For the reasons that follow, we affirm the
trial court

. I. Background DOT suspended Lieberman’s Pennsylvania driver’s license f or 30 days on March 25, 2015 , following his acceptance into the a ccelerat ed rehabilitative disposition program for a first offense DUI. Reproduced Record ( R.R. ) at 54a , 59a

. DOT suspended Lieberman’s Pennsylvania driver’s license for the second time on January 31, 2018 , following Liberman’s conviction for a second DUI offense on December 13, 2017. R.R. at 48a. This suspension was for 18 months. Id.
Lieberman received his sentence for his third DUI offense on December 21,
2017. R.R. at 72a. He did not receive a separate notice of suspension from DOT
after this DUI conviction, and he testified in this matter that he was not aware at the time of his guilty plea that he would be considered a habitual offende r and be subject ed to a five

- year driver’s license suspension. R.R. at 33a

- 34a. On February 11, 2021, the clerk of the trial court electronically transmitted a notice to DOT that Lieberman had completed treatment. R.R. at 52a. On February 20, 2021, DOT mailed Lieberman a letter indicating he was eligible to have his
driver ’ s license restored. R.R. at 77a

- 78a. Lieberman paid the restoration fee and complied with the requirements of the restoration letter, including paying over $250.00 to have an ignitio n interlock device installed in his vehicle. R.R. at 25 a

- 26a. DOT restored Lieberman’s driver’s license in late March 2021. R.R. at 25a.
T he clerk of the trial court did not electronically submit notification of Lieberman’s third DUI conviction to DOT until June 1, 2021

– almost three and half

years after the date of the conviction . R.R. at 46a. The clerk of the trial court is statutorily required to make this report within 10 days of the conviction. See 753

Pa.C.S. § 6323. After receiving the delayed notification, DOT mailed Lieberman a
notice o f suspension on June 9, 2021. R.R. at 19a. This notice informed Lieberman that he was considered a habitual offender and was subject to a five

- year driver’s license revocation, beginning on July 14, 20 21. R.R. at 41a. Lieberman timely appealed the notice of suspension to the trial court , which conducted an evidentiary appeal hearing

. At that hearing, Lieberman stated that he no longer drinks alcohol and has not had any contact with law enforcement, been arrested, or had any V ehicle C ode 1 violations since his last DUI conviction in
December 2017. R.R. at 32a

- 33a. Lieberman also stated that o n June 7, 2021, his employer, knowing that he had his driver’s license restored, offered him a promotion

to a position that would require him to be able to drive to his employer’s various locations. R.R. at 29a, 31a, 32a. Relying on his driver’s license, Lieberman accepted the promotion , which raised h is compensation from approximately $36,000.00 per
year to $5 9,000.00 per year

. R.R. at 31a

- 32a.
After hearing evidence and considering the parties’ arguments
, the trial court found that DOT’s delay in imposing Lieberman’s driver’s license suspension was an extraordinary delay that violated Lieberman’s due process rights . R.R. at 97 a

. Accordingly, the trial court sustained Lieberman’s appeal. R.R. at 81a.
II. Discussion On appeal, DOT asserts that this Court previously established a bright

- line
rule that an extraordinary delay in imposing an operating pr ivilege suspension only
exists if the delay exceeds the length of the suspension plus 10 days. Appellant’s
Br. at 4. DOT further asserts that the trial court erred as a matter of law for not applying that bright

- line rule in this matter

. Id.

1 75 Pa.C.S. §§ 101

- 9805

.4

“ In reviewi ng a driver ’ s license suspension case, our standard of review is limited to determining whether the trial court ’ s findings of fact were supported by substantial evidence, whether errors of law had been committed or whether the trial

court ’ s determination d emonstrated a manifest abuse of discretion. ” Finnegan v. Dep ’t of Transp., Bureau of Driver Licensing , 844 A.2d 645 , 647 n. 3 (Pa. Cmwlth. 2004) (citation omitted)

. “ The scope of review is plenary

. . . when the matter involves no disputed facts, and nothing but a question of law is considered. ” Id.
A review of the record reveals that no disputed facts exist in this matter. D ue to his three DUI convictions, Lieberman should have receive d a five

- year driver’s license suspension as a habitual offender. See 75 Pa.C.S. §1542. Following his second license suspension, however, DOT restored Lieberman’s driver’s license.
R elying on the restoration of his operating privilege, Lieberman accepted a job that required him to be able to drive . At nearly the same time, the c lerk of the trial court electronically sent a notification to DOT of Lieberman’s third DUI conviction
, which had occurred almost three and a half years earlier

. DOT then sent Lieberman
a notice of driver’s license suspension. The delay between Lieberman’s third DUI
conviction and the notification of driver’s license suspension was not caused by DOT, nor was it caused by Lieberman. The Pennsylvania Supreme Court has extensively analy zed whether DOT may suspend a person’s driver’ s license based up on a DUI conviction when there is a significant delay between the conviction and the notice of suspension. See Dep’t of Transp., Bureau of Driver Licensing v. Middaugh , 244 A.3d 426 (Pa. 2021) ( Middaugh II

)

. In Middaugh II , our Supreme Court was reviewing this Court’s ruling in Middaugh v. Department of Transp ortation , Bureau of Driver Licensing , 196 A.3d 1073 (Pa. Cmwlth. 2018) ( Middaugh I ). In Middaugh I , this Court5

established a bright

- line rule that a delay between a DUI conviction and a notice of driver’s license suspension can only be an extraordinary delay if it exceeds the length of the suspension plus 10 days. Middaugh I , 1 96 A.3d at 1083. In reviewing that
determination , o ur Sup reme Court began by noting that the DUI driver’s license suspension statutes (75 Pa.C.S. § § 3802, 3804, 6323(1)(i) ) are mandatory, and that they require license suspensions even when “administrative lapses” occur. Middaugh II , 244 A.3d at 433. T he Court noted , however, that “restrictions imposed by the Constitution can limit whether otherwise

- valid legislation may be applied in specific circumstances.” Id. Our Supreme Court then analyzed state and federal due process jurisprudence
and agreed with t his Court’s prior line of decisions, including Middaugh I , “to the

extent it suggests that a license suspension which is unreasonably delayed through no fault of the driver’s can potentially result in a denial of due process.” Id. at 436.
The Court then determine d that a driver’s due process rights were not affected by

“ whether the delay is charge able to [ DOT ] or the clerk of the common pleas court.”
Id. at 437. T he Court then noted that in considering a driver’s due process challenge,

a court must engage in a “means

- end” analysis to determine if there is a “connection between a suspension of privileges and the legislative goal of protecting the public.”
Id. To do this, a court must cons ider any additional violations a driver had during the course of the delay , the “ severity and age of any further violations,” and the

“ severity of the predicate offense

. ” Id. Finally, the Court noted that a driver must
be able to demonstrate that he suff ered prejudice from the delay to establish a due process violation

. Id. Although t he Supreme Court extensively reviewed and affirmed our decision
in Middaugh I , it carefully limited the extent to which it agreed with our analysis

.6

See generally Middaugh II , 244 A.3d 426. Pertinent to this matter, t he Supreme
Court did not endorse the bright

- line rule we established in Middaugh I that a delay
could only be an extraordinary delay if it exceeded the length of the suspension plus
10 days. Id. Instead , the Supreme Court engaged in the fact

- specific analysis
outlined above to determine if a driver’s constitutional due process rights can restrict DOT’s statutory right to impose a driver’s license suspension when a significant delay exists b etween a DUI conviction and a driver’s license suspension. See generally Middaugh II , 244 A.3d 426. With regard to the specific facts presented in Middaugh II , our Supreme Court
determined:
[T] he approximately 28

- month delay in this case can appropriately be viewed as denying Appellee his due process rights. Although this is not as long as the delays that have occurred in some [other cases] , it seems to us objectively unreasonable for a driver t o have to wait nearly two and a half years for administrative action that is expected to occur within approximately two months

– and would occur during that timeframe where the governmental entities involved are functioning competently, as citizens have a right to expect them to do.

. . . . We therefore agree with the Commonwealth Court majority that a suspension at this late date will have lost much of its effectiveness with regard to its underlying legislative purposes , result in prejudice which can be attributed to the delay, and ultimately deny fundamental fairness.

Id. at 438 , 4 39

. In this matter, the trial court reviewed the Supreme Court’s decision in Middaugh II and determined , as we have also determined, that “ the Pennsylvania Supreme Court did not adopt the use of [a] bright

- line rule.” R.R. at 96a. The trial7

court then found that the delay of nearly three and a half years between Lieberman’s
third DUI conviction and the notice of driver’s license suspension was extraordinar y , and that it violated Lieberman’s due process rights. R.R. at 96a

- 97a. Instead of challenging the trial court ’ s due process determination, 2 DOT ’s only assertion on appeal is that the trial court erred as a matter of law by failing to apply the bright

- line rule we establishe d in Middaugh I that an extraordinary delay can only exist if the delay between a DUI conviction and a notice of driver’s license suspension exceeds the period of the driver’s license suspension plus 10 days. A s fully outlined above, however, our Supreme Court in Middaugh II did not endorse
th e use of this bright

- line rule

. As prescribed by Middaugh II , the trial court engaged
in a fact

- specific due process analysis in this ma tter. In doing so, the trial court did
not commit an error of law

. III. Conclusion
In Middaugh II , the Pennsylvania Supreme Court established a fact

- specific analysis for determining if a driver’s constitutional due process rights can restrict
DOT’s statutory right to impose a driver’s license suspension when a significant delay exists between a DUI conviction and a notice of driver’s license suspension.
The Supreme Court did not endorse a bright

- line rule for determining a length of delay that does not violate a driver’s due process rights. Accordingly, DOT ’s only contention on appeal

– that the trial court erred as a matter of law by not applying

2 DOT did not request review of, or address in its brief, whether the delay in this matter violated Lieberman’s due process rights. Accordingly, DOT has waived any challenges to the trial court ’ s determination that the delay violated Lieberman’s due process rights. See Muretic v. Workers’ Comp. Appeal Bd. (Dep’t of Lab

. & Indus.) , 934 A.2d 752, 758 (Pa. Cmwlth. 2007) (citations omitted) (stating that under Pennsylvania Rules of Appellate Procedure 2116(a) and 2119(a) , an issue that is not addressed either i n the statement of questions involved or argument section of the appellant’s brief is waived).8

such a bright

- line rule

– is without merit . Therefore, we affirm the order of the trial

court

.

______________________________ STACY WALLACE , JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ryan William Lieberman : :
v. : No. 1047 C.D. 2021
: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : Appellant :

O R D E R

AND NOW , this 29 th day of April 202 2 , the September 10, 2021 order of the Court of Common Pleas of Northampton County in t his matter is AFFIRMED

.

______________________________ STACY WALLACE , Judge