IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luca DeGrossi : : No. 291 C.D. 201 7
v. : : Submitted: September 29 , 201 7 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY BY JUDGE McCULLOUGH FILED: November 27, 2017

The Pennsylvania Department of Transportation, Bureau of Driver Licensing (Departmen t), appeals from the February 15 , 2017 order of the Court of Common Pleas of Delaware County (trial court) sustaining the statutory appeal of Luca DeGrossi (Licensee) and vacating a six

- month suspension of his operating privilege
that t he Department imposed pursuant to s ection 1532(c )(1)(i) of the Vehicle Code (Code)

. 1 We affirm

.

On January 28, 2014, Licensee was convicted for possession of a
controlled substance. 2 O n August 8, 2016, more than two years later, the Delaware

1 This provision states that the D epartment shall suspend the operating privilege of any person upon receiving a certified record of the person’ s conviction of an offense involving the illegal use and/or possession of a controlled substance and provides for a suspension of six months when it is the person’s first off

ense. 75 Pa.C.S. §1532(c)(1)(i)

.

2 See section 13(a)(16) of The Controlled Substance, Drug, Device, and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780

- 113(a)(16).2

County Office of Judicial Support (OJS) , formerly known as the Clerk of Courts,
submitted a DL

- 21 Form to the Department regarding Licensee’s conviction. On Augu st 23, 2016, the Department mailed Licen see official notice that his license was being suspended for a period of six months , effective August 23, 2016

. The time gap
between the conviction and the notice of suspension was approximately t wo years and seven months. (Tr i a l court op. at 1

- 2.)

Licensee filed an appeal to the trial court, contending that his license suspension should be set aside due to unreasonable delay in effectuating the suspension

. At the de novo hearing held on December 6, 2016 , the Department
introduced a certified record containing proof of Licensee’s January 28, 2014
convictio n, documents that the Department sent to Licensee, and Licensee’s driving history. (Reproduced Record (R.R.) at 40a

- 49a.) Licensee testified that, although he was aware that his conviction would result in a license suspension, he understood that the Depa rtment would notify him of the suspension within ten days of the conviction. Licensee explained that since the conviction, he obtained a new job in the real estate industry that requires him to drive to various locations , and that there is no public

trans portation availabl e from his home to the main office

. Licensee stated that , beginning in June 2016, he has been a Big Brother in the Big Brother/Sister Foundation
and that he needs his vehicle to take the child he works with on social and recreational outings. Licensee further testified that he needs his vehicle to attend church events and sobriety programs. (R.R. at 20a

- 37 a; Trial court op. at 2

- 3. )

On February 15, 2017, the trial court sustained the appeal and reinstated Licensee’s operating privil e ge

. Relying principally on Gingrich v. Department of Transportation, Bureau of Driver Licensing , 1 34 A.3d 528 (Pa. Cmwlth. 2016) (en3

banc), the trial court determined that the two year and seven month delay in suspending the license was unreasonable; Lic ensee did not experience any further vi olations following his conviction; and Licensee sustained prej udice as a result of the delay. Perceiving our decision in Gingrich as one that marked a sea change in t he law, the
trial court rejected the authority pro ffered by the Department that pre

- dated Gingrich
as “ no t dispositive.” ( Trial cou r t op. at 7. ) Ultimately , the trial court concluded that the license suspension was “inherently unfair and ignore[d] the fundamentals of due process” and , hanging its hat on Gingrich , reinstat ed Licensee’s driving privilege

. (Trial court op. at 11.)

The Department now appeals to this Court , 3 , 4 arguing that the trial court
erred as a matter of law in extending the hol ding of Gingrich to the facts of this case. The Department emphasizes that the OJS was responsible for the delay and claims that the length of the delay was simply too short to warrant reinstatement, even if Licensee
suffered prejudice. For support, th e Department cites cases from this Court that preceded Gingrich , con tending that this decisional law has not been overruled and
continues onward as valid , binding precedent

.

“ Until recently, this Court has adhered to a line of decisions holding that the Department cannot be held accountable for delays caused by the clerks of courts regardless of the length of time involved. ” Capizzi v. Department of Transportation,

3 Our review is limited to dete rmining whether the trial court’ s findings were supported by competent evidence, whether errors of law were commit ted, or whether the trial court’ s determinations demonstrated a manifest abuse of discretion. Department of Transportation , Bureau of Traffic Safety v. O’ Connell , 555 A.2d 8 73, 875 (Pa. 1989).

4 On August 14, 2017, this Court ordered License e to file an appell ate brief within fourteen days. Licensee did not , and we entered an order on September 25, 2017, precluding him fro m doing

so

.4

Bureau of Driver Licensing , 141 A.3d 635, 640 (Pa. Cmwlth. 2016)

. 5 While the general
rule remains that the delay must be attributable to the Department to warrant setting aside a license suspension, this Court in Gingrich recognized a narrow exception for

5 The ra tionale for this rule was described in Department of Transportation, Bureau of Driver Licensing v. Green , 546 A.2d 767 (Pa. Cmwlth. 1988) , as follows :

Although, paraphrasing Ralph Waldo Emerson, a foolish consistency may be the hobgoblin of little minds, this court can do no bett er than to adhere to the steady line of decisions in wh ich we have held that, where [the Department] has not been guilty of administrative delay, judici al system delay in notifying [the Department] will n ot operate to invalidate driver’ s license suspensions merited by Vehicle Code convictions

. . . . The principle steadfastly applied in these decisions is consistent with sound pol icy. Under the Vehicle Code, [the Department] is the agency made responsible for imposition of the sanctions which t he law uses to keep unsafe drivers off the highways for stated periods. This court has held that a ma terial breach by [the Department] of that responsibility will invalidate the legal effectiveness of the sanction. If [the Department] 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 [the Department]

. 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 fai lure would be much more difficult.

Id. at 768

- 69 (citations omitted). Notably, this Court devised the rule despite the fact that the Vehicle Code imposed a duty on the clerk of courts to send a record of the conviction to the Department within ten days o f the conviction. See s ection 6323(1)(i) of the Code, 75 Pa.C.S. § 6323(1)(i). We reasoned that the statutory provision requiring the court clerk to certify convictions to t he D epartment within ten days was directory and not mandatory, and that a court cl erk’ s lateness c ould not nullify the Department’s power and duty t o suspend the driving privilege of a person convicted of an enumerated offense. Department of Transportation , Bureau of Driver Licensing v. Claypool , 618 A.2d 1231 , 1232

- 33 (Pa. Cmwlth. 1992).5

what we called “ limited extraordinary circumstances

. ” 134 A.3d at 534

- 35

. 6 In Gingrich , we held that even w h ere the Department was not responsible for the delay, a
licensee could still have his or her li cense reinstated upon proof that : (1) the entity responsible for certi fying a conviction to the Department failed to do so for an extraordinary extended period of time; (2) the licensee had no further Vehicle Code violations for a significant number of years before the convic tion was certified to the Department ; and (3) the licensee was prejudiced by the delay

. Id.

In this case, t he Department does no t dispute that Licens ee has met the
second and third prongs of the Gingrich test , and its challenge is solely to the trial court’s application of the first prong

. In Gingrich , this Court held that a ten

- year delay between the conviction and notice of susp ension, which was attributable to the clerk of courts, constituted an extraordinarily extended period of time

. 134 A.3d at 534

- 35 (“ Here, the r ecord shows that [the licensee’s] conviction was not reported for nearly ten years. While we will not establish a bright line in which a delay becomes extraordinary, we conclude that the delay here meets that standard. ”). 7 Later, i n

6 In Gingrich , we justified the exception with this language :
[T] he requirement that the delay be attributable to the Department before it may be actionable lies in the differing responsibilities of the judicial and executive branches and serves a n important public safety purpose, and we emphasize that this remains the general rule. That said, however, we have concluded that there may be limited extraordinary circumstances where the suspension loses its public protection rationale and simply becom es an additional punitive measure resulting from the conviction, but imposed long after the fact.
134 A.3d at 534

.

7 Accord Orwig v. Department of Transportation, Bureau of Driver Licensing , (Pa. Cmwlth., No. 286 C.D. 2015, filed June 3, 2 016) (unreported) (applying the Gingrich exception where ten years elapsed between the conviction and the clerk of court’s reporting of the conviction to the Department );

see Eckenrode v. Department of Transportation, Bureau of Driver Licensing , (P a. Cmwlth., No. 1686

Capizzi , we determined that a delay of seven years and ten months, which was chargeable to the clerk of court s , also satisfied this standard. 141 A.3d at 643 (concluding that “ the seven

- year and ten

- month delay between his conviction and the report from the Beaver County Clerk of Courts

. . . constitutes an e xtraord inarily extended period of time.”).

However, in Pokoy v. Department of Transportation, Bureau of Driver Licensing , 714 A.2d 1162 (Pa. Cmwlth. 1998), this Court concluded that a four

- year delay, again attributable to the clerk of courts, was insuff icient to set aside the license suspension. Id. at 1164 (“[O]nly an unreasonable delay by [the Department] , and not the ju dicial system, invalidates [the Department’s] license suspension . . . . Because the four year delay is not attributable to [the Depa rtment] we need not reach the issue of
whether [the licensee] suffered any prejudice. ”). Previously, we reached the same
result in Schultz v. Department of Transportation , 488 A.2d 408 (Pa. Cmwlth. 1985) (upholding license suspension where the four

- year delay was attributable to the clerk of courts). The basis for the holdings in Pokoy and Schultz was the fact that the Department was not responsible for the delay.

In this case, t he Department seeks to invoke Pokoy as dispo sitive authority

. Recently , a panel of this Court , albeit in a n unpublished decision, has
determined that, notwithstanding Gingrich and its newborn progeny , “ Pokoy remains good law. ” Eckenrode v. Department of Transportation, Bureau of Driver Licensing ,

C.D. 2015, f

iled July 14, 2016 ) (unreport ed) (same; nine years); cf. Nercesian v. Department of Transportation, Bureau of Driver Licensing , (Pa. Cmwlth., No. 1795 C.D. 2016, filed June 12, 2017) (unreported), slip op. at 9 (concluding that a license was properl y suspended under Gingrich where the delay was roughly five months, “which, while not ideal, was certainly not an ‘extraordinarily extended period of time.’” ).7

(P a. Cmwlth., No. 168 C.D. 2015, f iled July 14, 2016 ) (unreported), slip op. at 4

. 8 And,
i n Currie v. Department of Transportation, Bureau of Driver Licensing , 142 A.3d 186, 189 n.4 (Pa. Cmwlth. 2016), we doubted “ whether the Records Department’s failure to report Licensee’ s convic tion to [the Department] for three years constitutes an

‘ extraord inarily extended period of time’ under Gingrich. ” Currie , 142 A.3d at 189 n.4. However, our statement in Currie was a gratuitous observation, otherwise known as
dicta , because it was not essential to our holding. See id. (“ [B] ecause we find that Licensee was not prejudiced by the delay, we need not reach this question. ”).

It is well

- settled that unpublished decisions from this Court are not binding, see Duke Energy Fayette II, LLC v. Fayette County Board of Assessment Appeals , 116 A.3d 1176, 1182 (Pa. Cmwlt h. 2015), and neither is dicta

. Rendell v. Pennsylvania State Ethics Commission , 983 A.2d 708, 714 (Pa. 2009). Nonetheless, Pokoy is a pu blished decision , and b ecause the fact pattern in that case is analogous to the instant mat ter, this Court , sitting as three

- ju dge panel, is bound to follow and apply
the outcome of Pokoy . This is true , unless, of course, there is intervening precedent compelling a different result than the one we reached in Pokoy

.

Our latest pronouncement on Gingrich came from a published decision filed on October 24, 2017, Gifford v. Department of Transportation, Bureau of Driver Licensing , __ A.3d __ (Pa. Cmwlth., No. 386 C.D. 2017 , filed October 24 , 2017). 9 In that case, the licensee became a delivery driver for a tire business after his conviction , and the clerk of courts delayed in informing the Department of the conviction for two years and seven months. On ap peal, the Departm ent did not challenge the trial c o urt’s

8 I n Gingrich , this Court cited and discussed Pokoy , see 134 A.3d at 532, but there does not appear to be anything in the text of Gingrich to suggest that we were expressly overruling that case.

9 Although the trial court in this case did not have the benefit of our decision in Gifford , the same trial judge presided over both this case and Gifford , the Honorable Kathrynann Durham.8

finding that the licensee did not incur any violations sin ce his conviction. Nor did the Department dispute that the licensee sustained prejudice a s a result of the delay, yet we reiterated that “ prior case law supports the notion that losing a job that requires a driver’s license constitutes prejudice .” Slip op. at 7 (citation omitted)

.

This Court next determined that , under Gingrich , “ the length of the delay may be evaluated in the con text of the degree of prejudice. ” I d. at 10. Having decided
that the amount of prejudice shown by the licensee , i.e. , the potential loss of employment and inability to take his daughter to hospital visits , was “ significant ,” we
concluded that the trial court po ssessed the discretion to decide when the length of the delay constituted an “extraordinarily extend ed period of time.” Id. Emphasizing that Gingrich did not establish a bright line test in this regard , we affirmed “ the trial court’s
determination that two ye ars and seven months [was] an ‘ extraordinarily exte nded period of time’ when considered with the other Gingrich factors, the prejudice shown by the licensee, and the absence or presence of subsequent violations. ” Gifford , __ A.3d at __, slip op. at 10.

In Gifford , this Court intermingled the length of the delay with the particular “degree of prejudice shown,” ultimately clarifying a test where the “three Gingrich factors [are] balanced .” Id. at 9

- 10; see id. at 10 (“[T] he Gingrich factors may be w eighed 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. ”). A s in Gifford , the Department here does not challenge the trial court’s finding that Licensee sustained prejudice . W e nevertheless
note that , similar to the licensee in Gifford , Licensee’s new job requires that he have a
license to travel and view properties , his job would be in jeopardy if he did not have a
license , and he relies on his vehicle to attend sobriety and volunteer programs.9

Moreover, just as it did in Gifford , the Department in this case does not take issue with the trial court’s finding that Licensee did not sustain any vehicular or criminal violations following his conviction. Consequently, r egardless of whether Gifford
overruled Pokoy sub silentio or circumscribed that case to the situation w here a licensee does not experience demonstrable prejudice (or only minimal prejudice ) , Gif ford is factually indistinguishable and the controlling authority in this matter. Therefore, because the delay of two years and seven months was enough in Gifford , it must be enough in this case , where the delay was also two years and seven months

. W e

co nclude , therefore, that the trial court did not err in finding that the delay was for an extraordinarily extended period of time under Gingrich

.

In making its determination, the trial court construed the exception in Gingrich as one that effectively swallowed the previous rule and abrogated all of this Court’s preexisting case law. With our decision in Gifford , this could quite possibly be the case, for it is difficult to decipher how the “general rule” remains intact despite
sentiments from this Court to that effect. See Gifford , slip op. at 10 (“We continue to emphasize that the Gingrich exception applies only in limited extraordinary circumstances and that the general rule remains that only delays attributable to [the Department] may be grounds for vacating a license suspension based on delay.”); Capizzi , 141 A.3d at 643 (“[W]e emphasize that the general rule remains that only delays attributable to the Department may be vacated.”); Gingrich , 134 A.3d at 534 (“[T]he requirement that the delay be attributable to the Department before it may be actionable lies in the differing responsibilit ies of the judicial and executive branches and serves an important public safety purpose, and we emphasize that this remains the general rule.”). Whether the entire body of our case law comprising the ancien regime is still viable post

- Gingrich , be it as a practical matter or a legal one, is a question that10

we need not

– and do not

– decide today. For example, this Court has upheld license suspensions where the delay attributable to the judicial system was two years and four months, Department of Transpo rtation, Bureau of Traffic Safety v. Kazil , 510 A.2d 148 (Pa. Cmwlth. 1986), two years and three months, Department of Transportation, Bureau of Traffic Safety v. Chrzanowski , 505 A.2d 1129, 1130

- 31 (Pa. Cmwlth. 1986), and one year and five months. Depart ment of Transportation, Bureau of Traffic Safety
v. Davis , 527 A.2d 607, 609

- 10 (Pa. Cmwlth. 1987). These cases, however, involved a period of delay that is shorter than the one at bar, and, for present purposes, we will simply distinguish them on that ba sis.

In any event, given our decision in Gifford , it appears that the primary focus in these types of license suspension cases is the prejudice, if any, that a licensee sustains from the delay. We believe that such a focus is warranted, not only by the notion of fundamental fairness inherent in the due process clause, but also by Article I, Section 11 of our Constitution, which commands that “Every man . . . shall have . . . right and justice administered without . . . delay.” P A

. C ONST

. article I, § 11; see Exton
Drive

- In, Inc. v. Home Indemnity Co. , 261 A.2d 319, 322

- 23 (Pa. 1969) (“The right to have justice administered without delay is a fundamental right which should not be infringed unless no other course is reasonably possible.”); see also Davis v. South Carolina Department of Motor Vehicles , 800 S.E.2d 493, 496 (Ct. App. S.C. 2017) (“A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Due process is violated when a party is denied fundamental fairness.”) (citation omitted). 10

10 In reaching its conclusion that a delay exceeding two years or more is unreasonable for purposes of due process, the trial court, in our view, effectively impeached the long

- standing general rule, positing that “an error by [the Department] should not be viewed differently than an error by the judicial system because the result is the same for the licensee: prejudice.” (Trial court op. at 10.) In11

Because this case is substantially similar to our decision in Gifford , we affirm the trial court’s order setting aside the suspension of Licensee’s driving privilege

.

________________________________ PATRICIA A. McCULLOUGH, Judge

1984, a trial court in Lehigh County, in a decision that does not seem to have been appealed, made a similar argument when overturning a license suspension when there was a four

- year delay. Department of Transportation v. Curzi , 30 Pa. D.&C.3d 307, 310 (1984):

Notwithstanding the rule of the Commonwealth Court that delays caused by the judiciary are not to be chargeable to [the Department], we believe that the period of delay between conviction and suspension may become so great that due process requires that the state be prohibited from securing the suspension regardless of the source of delay .

. . . [W]e fi nd that notions of fairness and decency, as embodied in the concept of due process, mandate that the state cannot suspend the appellant’s license after a four

- year period of inaction on its part.

Id. at 310. In In re Petition of Donley , 618 S.E.2d 458, 4 61 (W.Va. 2005), the highest court of our sister state, West Virginia, concluded that due process is violated when prejudice results from a delay of nearly three years, even when the department issuing the license suspension is not responsible for the dela y. Ultimately, this authority reinforces our decision in Gifford and, also, the one we render in this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luca DeGrossi : : No. 291 C.D. 2017
v. : : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

ORDER

AND NOW, this 27 th day of November , 201 7 , the February 15, 2017 order of the Court of Common Pleas of Delaware County is here by affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge