IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stacy M. Smires aka Stacy M. Champ, :

Lanny S. Riffey, Cole M. Viani, :

William T. Albritton, David J. :

Glatfelter, Alfred H. Butler IV, :

Jose Javier Colon, Troy Lee :

Mundis, Michael J. Eisenhart II, :

Frank W. Sanfilippo, Vincent D. :

Martin, Harold Lee Williams, :

Matthew B. Hess, Howard :

Johnson, Christopher L. Gantz, :

Shawn Benedict, Matthew Richard :

Gallatin, Seth Edward Gray, :

Joshua M. Jackson, Jeremy D. :

Williams, Evan M. Zellman, :

Jena Spence, :

Petitioners :

:

v. : No. 146 M.D. 2015

: Argued: September 14, 2015

Don O’Shell, Clerk of Courts :

of York County, Pennsylvania :

and the Pennsylvania Department :

of Transportation, :

Respondents :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION 

BY JUDGE LEAVITT FILED: October 26, 2015

Stacy M. Smires a/k/a Stacy M. Champ, Lanny S. Riffey, Cole M. 

Viani, William T. Albritton, David J. Glatfelter, Alfred H. Butler, IV, Jose Javier 

Colon, Troy Lee Mundis, Michael J. Eisenhart, II, Frank W. Sanfilippo, Vincent D. 

Martin, Harold Lee Williams, Matthew B. Hess, Howard Johnson, Christopher L. 
2

Gantz, Shawn Benedict, Matthew Richard Gallatin, Seth Edward Gray, Joshua M. 

Jackson, Jeremy D. Williams, Evan M. Zellman and Jena Spence (Licensees) have 

filed an action in this Court’s original jurisdiction seeking a writ of mandamus 

against Don O’Shell, Clerk of Courts of York County and the Pennsylvania 

Department of Transportation (PennDOT). The writs Licensees seek will restore

their operating privileges notwithstanding their convictions for offenses that 

require suspension under the Vehicle Code.1The Clerk and PennDOT have filed 

preliminary objections seeking a dismissal of Licensees’ petition for the reason that 

they have another legal remedy to challenge their license suspensions, and this 

remedy bars relief in mandamus.

Background

Licensees’ petition for review alleges that in 2014, an audit of the 

Clerk’s office discovered approximately 5,000 criminal convictions that were not

reported to PennDOT as required by statute. Petition, ¶11. Section 6323 of the 

Vehicle Code states, in relevant part, 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, 

 

1

75 Pa. C.S. §§ 101-9805.
3

Device and Cosmetic Act,[2]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(1)(i) (emphasis added).

3

Licensees’ convictions, which occurred 

between 2004 and 2009, were not reported within ten days of the conviction. 

Petition, ¶12 (suspensions were “not issued for between 5 years and 10 years after 

the conviction date.”). Rather, they were not reported until 2014, when the Clerk 

submitted several thousand Forms DL-21 to PennDOT after his discovery of the 

unreported convictions. Petition, ¶12. Upon receipt of the Clerk’s notices, 

PennDOT suspended the operating privileges of Licensees under authority of

Section 1532(c) of the Vehicle Code. It states as follows:

The department shall suspend the operating privilege of any 

person upon receiving a certified record of the person’s 

conviction of any offense involving the possession, sale, 

delivery, offering for sale, holding for sale or giving away of 

any controlled substance under the laws of the United States, 

this Commonwealth or any other state, or any person 21 years 

of age or younger upon receiving a certified record of the

person’s conviction or adjudication of delinquency under 18 

Pa.C.S. § 2706 (relating to terroristic threats) committed on any 

 

2 Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 – 780-144.

3

PennDOT’s regulation states:

The clerk of a court of record of this Commonwealth, within 10 days after final 

judgment of conviction or acquittal or other disposition of charges under 75 

Pa.C.S. (relating to vehicle code), shall send to the Department a record of the 

judgment of conviction, acquittal or other disposition on Form DL-21. A record 

of the judgment shall also be forwarded to the Department, on Form DL-21, upon 

conviction or acquittal of a person of a felony in the commission of which the 

judge determines that a motor vehicle was essentially involved, under 75 Pa.C.S. 

§6323 (relating to reports by court of record).

67 Pa. Code §81.4(a) (emphasis added).
4

school property, including any public school grounds, during 

any school-sponsored activity or on any conveyance providing 

transportation to a school entity or school-sponsored activity.

75 Pa. C.S. §1532(c).

Licensees contend that the Clerk’s failure to report the convictions 

within the required 10-day time period has rendered the Clerk’s DL-21 Forms 

illegal, null and void ab initio. In the alternative, Licensees argue that the Clerk’s 

extreme delay violates due process and equal protection of the laws. They contend

that the Clerk should have confiscated their licenses at the time of conviction and 

did not do so. 75 Pa. C.S. §1540(a).4 Accordingly, the Clerk is equitably estopped 

from issuing untimely DL-21 Forms, and PennDOT is estopped from acting on the 

delayed notices. Finally, Licensees assert that the doctrine of laches bars the Clerk 

and PennDOT from acting upon their ancient convictions.

Licensees request a writ of mandamus to the Clerk to issue new DL21 Forms that nullify the prior forms or, in the alternative, date the suspensions to

the respective dates of conviction. Licensees also request a writ of mandamus 

directing PennDOT to reject the Clerk’s prior DL-21 Forms as untimely filed.

 

4

It states:

Upon a conviction by a court of competent jurisdiction for any offense which 

calls for mandatory suspension in accordance with section 1532 (relating to 

suspension of operating privilege), the court or the district attorney shall require 

the surrender of any driver’s license then held by the defendant and shall forward 

the driver’s license together with a record of the conviction to the department. 

The suspension shall be effective upon a date determined by the court or district 

attorney or upon the date of surrender of the license to the court or district 

attorney, whichever shall first occur.

75 Pa. C.S. §1540(a).
5

The Clerk and PennDOT have filed preliminary objections in the 

nature of a demurrer. They seek dismissal of Licensees’ action because they have 

a statutory remedy. Section 1150(a) of the Vehicle Code states as follows:

Any person who has been denied a driver’s license, whose 

driver’s license has been canceled, whose commercial driver’s 

license designation has been removed or whose operating 

privilege has been recalled, suspended, revoked or disqualified 

by the department shall have the right to appeal to the court 

vested with jurisdiction of such appeals by or pursuant to Title 

42 (relating to judiciary and judicial procedure). The appellant 

shall serve a copy of the petition for appeal, together with a 

copy of the notice of the action from which the appeal has been 

taken, upon the department’s legal office.

75 Pa. C.S. §1550(a). Indeed, Licensees appealed their suspensions to the court of 

common pleas. Petition, ¶13 (stating that Licensees’ statutory appeals “are 

pending before [courts of common pleas] and have been consolidated for 

disposition[.]”).

Licensees respond that the statutory appeal does not encompass a 

challenge to the actions of the Clerk. Indeed, the trial court has dismissed the 

Clerk as a party in the suspension appeals, leaving Licensees without a way to hold 

the Clerk accountable for not reporting their convictions within 10 days in 

accordance with his statutory duty. 

Mandamus

The common law writ of mandamus lies to compel the performance of 

a ministerial act or mandatory duty. Chesapeake Appalachia, LLC v. Golden, 35 

A.3d 1277, 1280 n. 7 (Pa. Cmwlth. 2012). “The burden of proof falls upon the 

party seeking this extraordinary remedy to establish his legal right to such relief.” 

Werner v. Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996). Mandamus requires a clear 
6

legal right to relief in the petitioner, a corresponding duty in the respondent and the 

lack of any other adequate and appropriate remedy. Wilson v. Pennsylvania Board 

of Probation & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). Mandamus is not 

available to establish legal rights but only to enforce rights that have been 

established. Id. As a high prerogative writ, mandamus is rarely issued and never 

to interfere with a public official’s exercise of discretion. Chadwick v. Dauphin 

County Office of Coroner, 905 A.2d 600, 603 (Pa. Cmwlth. 2006).

In considering preliminary objections, this Court will treat all the 

well-pleaded material facts set forth in the petition as true and make all reasonable 

inferences that may be drawn from those facts. Werner, 681 A.2d at 1335. This 

does not include legal conclusions stated in the petition. Armstrong County 

Memorial Hospital v. Department of Public Welfare, 67 A.3d 160, 170 (Pa. 

Cmwlth. 2013). Preliminary objections will be sustained only where it is clear that 

a pleading does not state a legal claim. Id.

Central to the preliminary objections of the Clerk and PennDOT is

that Licensees’ statutory appeals constitute an adequate and appropriate remedy

that precludes relief in mandamus and, in any case, Licensees do not have a clear

legal right to relief.

Relevant Precedent

A body of law has been developed on the subject of a clerk of court’s 

delay in reporting a licensee’s conviction for violations of the Vehicle Code or The 

Controlled Substance, Drug, Device and Cosmetic Act to PennDOT. We begin 

with a review of this precedent.

In Department of Transportation, Bureau of Driver Licensing v. 

Green, 546 A.2d 767 (Pa. Cmwlth. 1988), affirmed without opinion, 569 A.2d 350 
7

(Pa. 1990), a clerk of courts notified PennDOT 14 months after a licensee’s 

conviction, to which PennDOT responded with a license suspension. On appeal, 

the licensee argued that the untimely notice violated the statute, due process and 

caused him extreme prejudice because he lost his employment. The trial court

agreed with the licensee and sustained his appeal. This Court reversed. We 

explained as follows:

Under the Vehicle Code, [PennDOT] is the agency made 

responsible for imposition of the sanctions which the law uses 

to keep unsafe drivers off the highways for stated periods. This 

court has held that a material breach by [PennDOT] of that 

responsibility will invalidate the legal effectiveness of the 

sanction. 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 upon scores of court clerks and hundreds of 

functionaries within the minor judiciary. This court’s rule 

therefore protects the vehicle safety laws from vulnerability to 

delays within a system where detection and correction of 

official failure would be much more difficult.

Green, 546 A.2d at 769.

Thereafter, in Pokoy v. Department of Transportation, Bureau of 

Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998), a licensee challenged her

suspension that was imposed after the clerk of courts waited four years to notify

PennDOT of her DUI conviction. The licensee argued that “four years was an 

unreasonably long delay and that she has been prejudiced by the delay.” Id. at 

1164. We concluded that a prejudicial delay could be relevant but only where the 

delay was attributable to PennDOT. We set up a two-prong test:

In order for Appellant to successfully challenge [PennDOT’s]

license suspension, she bears the burden of establishing: (1) that 
8

there was an unreasonable delay that was attributable to 

[PennDOT]; 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.

Id. (emphasis in original). To meet the first prong

the law is settled that, where [PennDOT] is not guilty of 

administrative delay, any delay caused by the judicial system 

(e.g., the Clerk of Courts) not notifying [PennDOT] in a timely 

manner, will not invalidate a license suspension that is 

authorized by the Code and imposed by [PennDOT]. Fordham 

v. Department of Transportation, Bureau of Driver Licensing, 

663 A.2d 868 (Pa.Cmwlth.1995); [and Green]. In determining 

whether there was an unreasonable delay attributable to 

[PennDOT], the relevant time period is that between the point 

at which [PennDOT] receives notice of the driver’s conviction 

from the judicial system and the point at which [PennDOT]

notifies the driver that her license has been suspended or 

revoked. Fordham. In other words, only an unreasonable delay 

by [PennDOT], and not the judicial system, invalidates 

[PennDOT’s] license suspension.

Id. (emphasis added). Because the licensee could not meet the first prong of the 

two-part test, this Court upheld the license suspension.

More recently, in Fruehwirth v. Department of Transportation, 

Bureau of Driver Licensing, (Pa. Cmwlth., No. 104 C.D. 2012, filed September 7, 

2012), a licensee challenged his suspension for underage drinking. Licensee was 

charged in 2004, but the charge was not processed by the magisterial district 

judge’s office until 2011. Believing he would be subject only to a fine, the 

licensee did not attend the hearing and was convicted in absentia. Thereafter, the 

licensee learned that this conviction also subjected him to a 90-day license 

suspension. 

The trial court sustained the licensee’s appeal. The trial court 

acknowledged that PennDOT did not cause the delay. Nevertheless, it concluded 
9

that a suspension issued seven years after the conviction authorized equitable 

relief. This Court reversed. Again, we confirmed that PennDOT could not be held 

liable for a delay it did not cause. 

Also relevant is precedent that has established that the 10-day 

deadline for a clerk of court to notify PennDOT of a conviction is directory, not 

mandatory. In Department of Transportation, Bureau of Driver Licensing v. 

Claypool, 618 A.2d 1231 (Pa. Cmwlth. 1992), the clerk did not notify PennDOT of 

the licensee’s DUI conviction until 23 days after the date of conviction. Because 

Section 6323(1)(i) states that the notice “shall” be sent to PennDOT “within ten 

days after final judgment of conviction[,]” 75 Pa. C.S. §6323(1)(i), the licensee 

argued that the clerk’s failure to comply with the statute rendered PennDOT’s

suspension invalid. We disagreed.

We explained the distinction between the mandatory and directory use 

of the word “shall” as follows:

To hold that a provision is directory rather than mandatory, 

does not mean that it is optional—to be ignored at will. Both 

mandatory and directory provisions of the legislature are meant 

to be followed. It is only in the effect of non-compliance that a 

distinction arises. A provision is mandatory when failure to 

follow it renders the proceedings to which it relates illegal and 

void; it is directory when the failure to follow it does not 

invalidate the proceedings.

Claypool, 618 A.2d at 1232-33 (quoting Pleasant Hills Borough v. Carroll, 125 

A.2d, 466, 469 (Pa. Super. 1956) (emphasis in original)). A license suspension for 

DUI convictions promotes health and safety. We concluded that this important

sanction could not turn on the actions of “court clerks throughout the 

Commonwealth.” Id. at 1233. Citing Green, 546 A.2d at 769, we explained, 

further, that PennDOT has no ability to supervise court clerks. Accordingly, we 
10

sustained the license suspension notwithstanding the clerk’s delay in reporting the 

licensee’s conviction.

Statutory Appeal

PennDOT and the Clerk base their demurrer on the statutory remedy 

that Licensees have under Section 1150(a) of the Vehicle Code to appeal their 

license suspensions “to the court vested with jurisdiction of such appeals by or 

pursuant to Title 42 (relating to judiciary and judicial procedure).” 75 Pa. C.S. 

§1550(a). This de novo appeal before a court of law is an appropriate and adequate 

remedy that can be used to raise any defense, whether constitutional or statutory. 

Rutkowski v. Department of Transportation, Bureau of Driver Licensing, 780 A.2d 

860, 862 (Pa. Cmwlth. 2001) (“In accordance with Section 1550 of the Vehicle 

Code, a driver’s right to a de novo hearing is mandatory[.]”). That precedent does 

not favor Licensees does not mean that they may seek a writ of mandamus. To the 

contrary, it means that Licensees cannot meet the prerequisite to mandamus that 

they have a clear right to relief. Further, Licensees may use the statutory appeal as 

a vehicle to have the above-cited precedent modified or even reversed. The trial 

courts may be bound by precedent, but the appellate courts may be persuaded to 

revise previously established principles.

Licensees raise a number of legal theories in support of their position 

that PennDOT’s suspension of their respective licenses was illegal. PennDOT and 

the Clerk respond that none of these theories has any merit. We consider 

Licensees’ legal theories ad seriatim.
11

Licensees’ Position

Licensees explain that suspension appeals address errors of PennDOT. 

By contrast, here, the error occurred in the Office of the Clerk of Courts. Because 

the Clerk is not a party in the statutory appeal, the trial court lacks jurisdiction to 

fashion an order directing the Clerk to withdraw or amend the untimely notices, 

leaving Licensees without a remedy. In support, they attach a transcript from two

license suspension appeals, wherein the trial court judge expressed concern 

because their licenses were suspended years after their convictions. These courts

noted that the prejudice was obvious and suggested that this Court should revisit its

precedent.5 Essentially, Licensees argue that the Clerk breached his statutory duty 

to report their convictions promptly. This breach of duty should prevent PennDOT

from acting upon the convictions.

a. Clerk as PennDOT Agent

Licensees first argue that the Clerk acts as PennDOT’s agent. In 

support, they cite Section 9728(a)(1) of the Sentencing Code, which makes the 

Clerk an agent for various departments of the county:

(1) Except as provided in subsection (b)(5) [relating to inmate 

accounts], all restitution, reparation, fees, costs, fines and 

penalties shall be collected by the county probation department 

or other agent designated by the county commissioners of the 

county with the approval of the president judge of the county 

for that purpose in any manner provided by law. However, 

such restitution, reparation, fees, costs, fines and penalties are 

 

5

See hearing transcript of February 25, 2015, in William T. Albritton v. Commonwealth of 

Pennsylvania, Department of Transportation (York County, No. 2014-SU-3716-27) and hearing 

transcript of January 28, 2015, in Matthew Gallatin v. Commonwealth of Pennsylvania, 

Department of Transportation, (York County, No. 2014-SU-3192-27). Licensees’ Brief, 

Exhibits B and C. 
12

part of a criminal action or proceeding and shall not be deemed 

debts. A sentence, pretrial disposition order or order entered 

under section 6352 (relating to disposition of delinquent child) 

for restitution, reparation, fees, costs, fines or penalties shall, 

together with interest and any additional costs that may accrue, 

be a judgment in favor of the probation department upon the 

person or the property of the person sentenced or subject to the 

order. 

42 Pa. C.S. §9728(a)(1). Licensees contend that, by analogy, the Clerk acts as an 

agent for PennDOT.

PennDOT responds with a separation of powers argument. The Clerk

and PennDOT are each state government actors, but they belong to distinct and coequal branches of government, independent of each other. Mental Health 

Association in Pennsylvania v. Corbett, 54 A.3d 100, 104 (Pa. Cmwlth. 2012) 

(quoting Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977) (“A basic precept of our 

form of government is that the executive, the legislature and the judiciary are 

independent, co-equal branches of government.”)). As such, “[t]he separation of 

powers doctrine provides that no branch of government should exercise the 

functions exclusively committed to another branch.” Id. (quoting Harrisburg 

School District v. Hickok, 762 A.2d 398, 411–12 (Pa. Cmwlth. 2000)). PennDOT 

belongs to the executive branch, and the Clerk belongs to the judicial branch. 

Neither may control the other nor act as the agent for the other.

b. Due Process

Licensees claim that the Clerk had no authority to issue the DL-21 

Forms beyond the 10-day limitation set forth in Section 6323(1)(i) of the Vehicle 

Code. As a matter of due process, they were entitled to a hearing before the Clerk 

reported their various convictions to PennDOT in which they could have litigated 

the validity of the Clerk’s actions. 
13

PennDOT and the Clerk respond that Claypool, 618 A.2d 1231, 

established that the 10-day limitation period is discretionary and, further, that

PennDOT may not be held responsible for the Clerk’s delay. The Pennsylvania 

Supreme Court has explained, “the essential elements of due process are notice and 

opportunity to be heard and to defend in an orderly proceeding adapted to the 

nature of the case before a tribunal having jurisdiction of the cause.” Department 

of Transportation, Bureau of Driver Licensing v. Clayton, 684 A.2d 1060, 1064 

(Pa. 1996) (quoting Soja v. Pennsylvania State Police, 455 A.2d 613, 615 (Pa. 

1982)). When a person’s operating privilege is suspended, he is given due process; 

he is afforded an appeal to the trial court, pursuant to Section 1550(a) of the 

Vehicle Code, 75 Pa. C.S. §1550(a). This is all the process to which Licensees are 

entitled.

c. Equal Protection

Licensees next claim that the Clerk chose, arbitrarily, to audit the 

performance of his office from 2004 to the present.6 As a result, the Clerk has 

 

6

The Clerk’s audit appears to have been undertaken due to the implementation of Section 

6323(1)(ii) of the Vehicle Code, added by the Act of October 27, 2014, P.L. 2905, No. 189,

which states:

(ii) The following shall apply: 

(A) The clerk of any court of this Commonwealth shall, by 

January 1, 2016, send to the department each record of the 

following, including an adjudication of delinquency or the granting 

of a consent decree, that was not sent within ten days after final 

judgment of conviction or acquittal or other disposition: 

(I) A judgment of conviction, adjudication of 

delinquency or a granting of a consent decree under 

section 13 of The Controlled Substance, Drug, 

Device and Cosmetic Act. 

(Footnote continued on the next page . . . )
14

engaged in selective enforcement of the Vehicle Code, allowing persons whose 

pre-2004 convictions were not reported to PennDOT by the Clerk to escape a 

license suspension.

PennDOT responds that the right to equal protection of the laws under 

the Fourteenth Amendment to the United States Constitution and Article I, 

Sections 1 and 26 of the Pennsylvania Constitution7do not prohibit the 

 

(continued . . . )

(II) A judgment of conviction, adjudication of 

delinquency or a granting of a consent decree under 

section 1532(c) (relating to suspension of operating 

privilege) for a conviction of any offense involving 

the possession, sale, delivery, offering for sale, 

holding for sale or giving away of any controlled 

substance under the laws of the United States, this 

Commonwealth or any other state. 

(B) A filing made under this subparagraph shall be valid for the 

purposes of this title.

75 Pa. C.S. §6323(1)(ii).

7

Section 1 of the Fourteenth Amendment to the United States Constitution states: 

All persons born or naturalized in the United States, and subject to the jurisdiction 

thereof, are citizens of the United States and of the State wherein they reside. No 

State shall make or enforce any law which shall abridge the privileges or 

immunities of citizens of the United States; nor shall any State deprive any person 

of life, liberty, or property, without due process of law; nor deny to any person 

within its jurisdiction the equal protection of the laws. 

U.S. CONST. amend. XIV, §1. Article I, Section 1 of the Pennsylvania Constitution provides:

All men are born equally free and independent, and have certain inherent and 

indefeasible rights, among which are those of enjoying and defending life and 

liberty, of acquiring, possessing and protecting property and reputation, and of 

pursuing their own happiness. 

PA. CONST. art. I, §1. Article I, Section 26 of the Pennsylvania Constitution provides: 

Neither the Commonwealth nor any political subdivision thereof shall deny to any 

person the enjoyment of any civil right, nor discriminate against any person in the 

exercise of any civil right. 

(Footnote continued on the next page . . . )
15

Commonwealth from classifying individuals for different treatment. Curtis v. 

Kline, 666 A.2d 265, 267–68 (Pa. 1995) (citations omitted). The courts have 

identified three types of classifications: (1) classifications which implicate a 

“suspect” class or a fundamental right; (2) classifications implicating an 

“important” though not fundamental right or a “sensitive” classification; and (3) 

classifications which fall into neither category;8these classifications need only bear 

a rational relationship to a legitimate government interest. Licensees do not claim

that they are part of a suspect class, and they do not specify the offensive 

classification. The Supreme Court has held that when an “appellee fails to 

demonstrate what classifications” are at issue “no equal protection analysis is 

warranted.” Commonwealth v. Barud, 681 A.2d 162, 166 n.5 (Pa. 1996). 

In any case, that there are licensees in York County whose pre-2004 

unreported convictions will not be reported to PennDOT does not offend equal 

protection. In Life Insurance Company of North America v. Insurance 

Department, 402 A.2d 297 (Pa. Cmwlth. 1979), an insurance company argued that 

its right to equal protection under the law was violated because its competitors 

were offering a health insurance policy with a pre-existing condition exclusion that 

 

(continued . . . )

PA. CONST. art. I, §26. Together, the Pennsylvania provisions are understood to establish a right 

to equal protection of the laws equivalent to that established in the United States Constitution. 

Kramer v. Workers’ Compensation Appeal Board (Rite-Aid Corp.), 883 A.2d 518, 532 (Pa. 

2005).

8

Suspect classes are those based on race or national origin, and are reviewed under a standard of 

strict scrutiny. Larsen v. Senate of the Commonwealth of Pennsylvania, 154 F.3d 82, 93 n. 16 

(3d Cir.1998). Quasi-suspect classes are gender and legitimacy, which are reviewed under a 

standard of heightened review. Clark v. Jeter, 486 U.S. 456, 461 (1988). Our Supreme Court 

has used the term “sensitive classification” when referring to quasi-suspect classifications.

McCusker v. Workmen’s Compensation Appeal Board (Rushton Mining Company), 639 A.2d 

776, 778 (Pa. 1994).
16

the Insurance Department refused to allow the company to use. The Insurance 

Department acknowledged this fact, explaining that the competitors’ policies were 

introduced at a time when group accident and health policies were not subject to 

prior review and approval. This Court held that the “concept of equal protection 

does not require that the [Insurance Department] attack a problem all at once or not 

at all.” Id. at 299. 

d. Estoppel

Licensees argue that the Clerk should be estopped from issuing their 

notices of conviction to PennDOT because Section 1540(a) of the Vehicle Code 

requires that “the court or the district attorney shall require the surrender of a

driver’s license” by a defendant convicted of “any offense which calls for 

mandatory suspension[.]” 75 Pa. C.S. §1540(a). Licensees contend the Clerk 

failed to perform his mandatory duty to confiscate their licenses, or require the trial 

court to confiscate their licenses.

PennDOT responds that equitable estoppel is a doctrine that prevents 

one from acting contrary to what another has been induced by word or deed to 

expect. “The two essential elements of equitable estoppel are inducement and 

justifiable reliance on that inducement.” Novelty Knitting Mills, Inc. v. Siskind, 

457 A.2d 502, 503 (Pa. 1983). Here, Licensees have not identified a PennDOT 

“inducement” on which they relied. Further, Section 1540(a) of the Vehicle Code 

requires “the court or the district attorney” to confiscate licenses. It does not 

require, or even permit, a clerk of courts to confiscate licenses. Moreover, a clerk 

of courts has no authority to order a trial court to complete any task.
17

e. Laches

Finally, Licensees assert the doctrine of laches. They assert that 

PennDOT and the Clerk should be viewed as the same entity and that PennDOT 

had a duty to inquire or audit the Clerk’s office to determine why the DL-21 Forms 

were not sent in a timely manner. 

PennDOT responds that it has no authority to audit the Clerk. Further, 

laches is an “equitable defense.” Cabell v. City of Hazleton, 506 A.2d 1001, 1003 

(Pa. Cmwlth. 1986). It “bars relief when a complaining party is guilty of want of 

due diligence in failing to promptly institute an action to the prejudice of another.” 

Peden v. Gambone Brothers Development Co., 798 A.2d 305, 312 (Pa. Cmwlth. 

2002).

Licensees are the complaining party in a mandamus action, which is 

an action at law. Laches is an equitable defense. For Licensees to use laches as a 

sword in a legal action they initiated is confusing at best.

In any event, Licensees may raise laches in their statutory appeal. In 

Lancos v. Department of Transportation, Bureau of Driver Licensing, 689 A.2d 

342 (Pa. Cmwlth. 1997), PennDOT did not implement a suspension for 20 months

after this Court denied the licensee’s appeal. This Court held that because 

PennDOT did not act within a reasonable time, the doctrine of laches barred 

PennDOT’s untimely suspension. 

Conclusion

PennDOT and the Clerk present cogent responses to the merits of 

each of Licensees’ legal theories. At a minimum, these responses show that 

Licensees cannot demonstrate a clear legal right to relief, which is a prerequisite to 
18

a writ of mandamus. However, we need not decide the merits of Licensees’ legal 

claims because we conclude that they should be resolved in their statutory appeals. 

Licensees may challenge their suspensions for any reason, including 

the Clerk’s delay in reporting them to PennDOT. Unfortunately for Licensees, the 

precedent has established that PennDOT cannot be faulted for delays not within its 

control. Simply because the case law is not in Licensees’ favor does not mean they 

are entitled to more than their statutory appeal. It does mean they do not have a 

clear right to relief. Mandamus does not lie where the petitioner has another 

appropriate and adequate remedy, which Licensees have in the statutory appeal. 

This is the appropriate vehicle by which Licensees can raise all of their 

constitutional and statutory claims.9 Licensees’ statutory appeal includes appellate 

review. In sum, the statutory appeal is the vehicle by which they can challenge 

their license suspensions.

Licensees argue that they seek relief from the Clerk, not PennDOT. 

The petition for writ of mandamus requests that the Clerk amend the notices of 

conviction and reissue them to state that prior notices are “void” or, alternatively, 

that the date of conviction should be considered as the date the suspension 

commences. Even were the Court to so direct the Clerk, it would be meaningless. 

PennDOT must suspend licenses upon receipt of the notice of conviction. See 75 

Pa. C.S. §1532(c) (The Department “shall suspend the operating privilege of any 

person upon receiving a certified record of the person’s conviction....”). Just as 

PennDOT cannot issue directives to a clerk of court, likewise the Clerk cannot 

 

9 Mandamus is not available for testing the constitutionality of a statute or a regulation. 18 

STANDARD PA. PRACTICE 2D, “Mandamus,” §99:6.
19

direct PennDOT to revoke suspensions that were previously issued upon notice of 

Licensees’ convictions.

Because Licensees have a statutory remedy and no clear right to relief, 

the preliminary objections filed by PennDOT and the Clerk are sustained, and the 

petition for writ of mandamus is dismissed.

 ______________________________

MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stacy M. Smires aka Stacy M. Champ, :

Lanny S. Riffey, Cole M. Viani, :

William T. Albritton, David J. :

Glatfelter, Alfred H. Butler IV, :

Jose Javier Colon, Troy Lee :

Mundis, Michael J. Eisenhart II, :

Frank W. Sanfilippo, Vincent D. :

Martin, Harold Lee Williams, :

Matthew B. Hess, Howard :

Johnson, Christopher L. Gantz, :

Shawn Benedict, Matthew Richard :

Gallatin, Seth Edward Gray, :

Joshua M. Jackson, Jeremy D. :

Williams, Evan M. Zellman, :

Jena Spence, :

Petitioners :

:

v. : No. 146 M.D. 2015

:

Don O’Shell, Clerk of Courts :

of York County, Pennsylvania :

and the Pennsylvania Department :

of Transportation, :

Respondents :

O R D E R

AND NOW, this 26th day of October, 2015, the preliminary objections 

filed by Don O’Shell, Clerk of Courts of York County and the Pennsylvania 

Department of Transportation are SUSTAINED and the Petition for Writ of 

Mandamus is DISMISSED.

 ______________________________

MARY HANNAH LEAVITT, Judge