IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aaron Naginey :

: No. 806 C.D. 2017

v. :

: Submitted: November 9, 2018

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge1

OPINION BY 

JUDGE McCULLOUGH FILED: January 3, 2019

The Department of Transportation, Bureau of Driver Licensing (DOT) 

appeals from the May 11, 2017 order of the Court of Common Pleas of the 

Seventeenth Judicial District, Union County Branch (trial court), which sustained the 

appeal of Aaron Naginey (Licensee) and rescinded the one-year suspension of his 

operating privilege imposed by DOT in accordance with section 3804(e)(2)(i) of the 

Vehicle Code (Code), 75 Pa.C.S. §3804(e)(2)(i),2as a consequence of Licensee’s 

conviction for driving under the influence (DUI) in Florida. 

 

1 This case was decided before Judge Colins’ service on the Court ended on December 31, 

2018.

2 Section 3804(e) of the Code provides for a 12-month suspension of the operating privilege 

of an individual upon conviction for an ungraded misdemeanor or misdemeanor of the second 

degree under section 3802 (relating to driving under the influence of alcohol or a controlled 

substance) or an offense which is substantially similar to an offense enumerated in section 3802 

reported to DOT under the Driver’s License Compact, 75 Pa.C.S. §§1581-1586.
2

Facts and Procedural History

The underlying facts of this case are not in dispute. On August 9, 2011, 

Licensee committed a DUI violation in Florida. On January 28, 2012, Licensee 

committed a DUI violation in Pennsylvania. Licensee was convicted of his 

Pennsylvania DUI violation on November 19, 2012. He was convicted of his Florida 

DUI violation on March 12, 2013. However, Florida did not mail notification of the 

Florida DUI conviction to DOT until April 22, 2016, more than three years after his 

conviction in that state. DOT processed the notice from Florida on June 23, 2016. 

One week later, by notice dated June 30, 2016, DOT advised Licensee that his 

operating privilege would be suspended for a period of one year as a result of his 

Florida DUI conviction. 

Licensee filed a timely appeal with the trial court, which conducted a de 

novo hearing on May 11, 2017. At this hearing, DOT introduced, and the trial court 

admitted, a certified packet of documents evidencing his Pennsylvania and Florida 

DUI convictions, the notice received from authorities in Florida, the notice received 

from the clerk of courts regarding his Pennsylvania DUI conviction, DOT’s June 30, 

2016 notice of suspension, and Licensee’s driving record. (Reproduced Record 

(R.R.) at 17a-21a, 41a-42a.)

Licensee testified on his own behalf. Licensee indicated that he has 

worked as a speech language pathologist for a local school district and a healthcare 

company since 2007 and 2011, respectively. He explained that his work for the 

healthcare company, which he began in 2011 when he and his wife were expecting a 

baby and she could no longer work, involved providing home healthcare and 

traveling to the individuals’ homes. However, he identified a notice that he received 

from DOT dated September 8, 2011, effectively cancelling his license as of October 

13, 2011, based on information received from the state of Florida reflecting that his 
3

operating privilege was suspended. He also identified a restoration requirements 

letter that he received from DOT dated September 23, 2013, explaining the procedure 

for restoring his operating privilege, including providing DOT with a clearance letter 

from Florida. He obtained the necessary clearance letter that same day, as evidenced 

by Licensee Exhibit 3. This letter provided that Licensee’s operating privilege was

not revoked, suspended, or cancelled in Florida. Finally, Licensee identified a notice 

that he received from DOT effectively restoring his operating privilege as of 

September 23, 2013. (R.R. at 58a-62a, 121a-127a.)

Licensee testified that his operating privilege was suspended/cancelled 

by DOT for a period of approximately two years from October 2011 through 

September 2013 as a result of information DOT received from Florida. Licensee 

indicated his belief that his operating privilege was suspended in Florida as a result of 

a DUI charge he incurred on August 8 or 9, 2011. Licensee noted that his second job 

essentially ceased due to the loss of his operating privilege. Upon restoration of his 

operating privilege in September 2013, Licensee began building a client base in his 

second job. If he were to lose his operating privilege again, Licensee testified that he 

would not be able to continue with this home healthcare job, which itself generated 

$29,000.00 in income in 2016. (R.R. at 63a-72a.)

On cross-examination, Licensee acknowledged his Florida DUI and his 

Florida conviction on March 12, 2013, which included a six-month suspension of his 

operating privilege. Upon expiration of this six-month suspension in September 

2013, Licensee stated that he sought and obtained a clearance letter from the 

authorities in Florida. (R.R. at 74a-77a.)

At the conclusion of the hearing, the trial court sustained Licensee’s 

appeal and rescinded DOT’s one-year suspension of his operating privilege, 

concluding that the delay of approximately 37 months between Licensee’s Florida 
4

DUI conviction and the notice to Pennsylvania was extraordinary, unreasonable, and 

prejudicial to Licensee. The trial court relied on this Court’s previous decision in

Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 

(Pa. Cmwlth. 2016), in reaching its decision. While Licensee had a DUI violation in 

Pennsylvania shortly after his Florida DUI, the trial court noted that Licensee’s blood

alcohol content was less than .10% in both DUIs, thereby qualifying as the lowest tier 

DUI offense in Pennsylvania, and that the licensee in Gingrich had two DUIs within 

the interim period between her conviction and suspension, one of which, unlike this 

case, involved a chemical test refusal. (R.R. at 97a-100a.) The trial court issued an 

order that same day reflecting its ruling. (R.R. at 128a.) 

DOT thereafter filed a notice of appeal with the trial court. By order 

dated July 11, 2017, the trial court directed DOT to file a concise statement of errors 

complained of on appeal in accordance with Pa.R.A.P. 1925(b). DOT complied and 

alleged in this statement that the trial court erred as a matter of law in sustaining 

Licensee’s appeal and rescinding the one-year suspension because the delay in 

issuing this suspension was not attributable to DOT but to another entity, i.e., 

authorities in Florida. DOT noted that the suspension letter was issued within one 

week of it receiving notice from Florida of Licensee’s DUI conviction in that state. 

DOT also argued that Gingrich was inapplicable here in light of Licensee’s 

intervening DUI in this Commonwealth on November 19, 2012. (R.R. at 137a-41a.) 

In lieu of filing an opinion in accordance with Pa.R.A.P. 1925(a), the trial court 

issued an order dated August 3, 2017, referring the Superior Court to the transcript of 

the May 11, 2017 hearing for its reasons underlying its decision.3 (R.R. at 144a.) 

 

3 The trial court mistakenly referred to the Superior Court in this order. DOT’s appeal was 

properly filed in this Court.
5

Discussion

On appeal,4 DOT reiterates its argument that the trial court erred as a 

matter of law in sustaining Licensee’s appeal on the basis of an unreasonable delay in 

imposing his suspension for the Florida DUI. We disagree.

Historically, to challenge a license suspension based on unreasonable 

delay, a licensee bore the burden of establishing: “(1) that there was an unreasonable 

delay that was attributable to DOT; 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.” Pokoy v. Department of Transportation, Bureau of Driver Licensing, 714 

A.2d 1162, 1164 (Pa. Cmwlth. 1998) (emphasis in original). As to the unreasonable 

delay prong, this Court explained:

Regarding the first element of this two-step analysis, the 

law is settled that, where DOT is not guilty of 

administrative delay, any delay caused by the judicial 

system (e.g., the Clerk of Courts) not notifying DOT in a 

timely manner, will not invalidate a license suspension that 

is authorized by the Code and imposed by DOT. In 

determining whether there was an unreasonable delay 

attributable to DOT, the relevant time period is that between 

the point at which DOT receives notice of the driver’s 

conviction from the judicial system and the point at which 

DOT notifies the driver that her license has been suspended 

or revoked. In other words, only an unreasonable delay by 

DOT, and not the judicial system, invalidates [DOT’s] 

license suspension.

Id. (emphasis in original) (internal citations omitted). Otherwise stated, the general 

rule was that only a DOT delay, not one caused by the judicial system, would suffice 

 

4 Our scope of review is limited to determining whether the findings of fact are supported by 

substantial evidence or whether the trial court committed an error of law or an abuse of discretion in 

reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6 

A.3d 1067, 1070 (Pa. Cmwlth. 2010).
6

to invalidate a license suspension. Therefore, if DOT timely suspended the license 

after receiving notice from the courts of a qualifying conviction, the suspension 

would stand.

However, this Court in Gingrich recognized a narrow exception to the 

general rule for what we called “limited extraordinary circumstances.” 134 A.3d at 

534. In Gingrich, the York County Clerk of Courts did not notify DOT of a

licensee’s 2004 DUI conviction until October 10, 2014. DOT then notified the 

licensee of the one-year license suspension within 14 days of receiving notification of 

the triggering conviction. The licensee appealed, arguing the 10-year delay between 

her conviction and the attendant license suspension violated her right to due process. 

A court of common pleas found the delay was unreasonable, but affirmed the 

suspension based on the above-referenced general rule because DOT was not 

responsible for the delay. This Court ultimately reversed the order of the court of 

common pleas and remanded the matter to that court to vacate the suspension.

We explained,

the requirement that the delay be attributable to [DOT] 

before it may be actionable lies in the differing 

responsibilities of the judicial and executive branches and 

serves an 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 becomes an 

additional punitive measure resulting from the conviction, 

but imposed long after the fact. Where a conviction is not 

reported for an extraordinarily extended period of time, the 

licensee has a lack of further violations for a significant 

number of years before the report is finally sent, and is able 

to demonstrate prejudice, it may be appropriate for common 

pleas to grant relief.
7

Id. Nevertheless, we declined to create a bright-line rule for determining when a 

delay becomes extraordinary, simply noting that the 10-year delay in that case met 

the extraordinary standard.

5

 Id. at 534-35. 

 Recently, this Court revisited and clarified the first Gingrich factor in 

Middaugh v. Department of Transportation, Bureau of Driver Licensing, __ A.3d ___

(Pa. Cmwlth., No. 815 C.D. 2017, filed October 31, 2018). In Middaugh, the 

Delaware County Office of Judicial Support (OJS), which performs the duties of the 

clerk of court in Delaware County, failed to notify the Department of a licensee’s 

DUI conviction until two years and four months after the conviction. Fifteen days 

after receiving notification from OJS, the Department notified the licensee that his 

operating privilege would be suspended for a year per statute. The licensee appealed 

and, at a hearing before a court of common pleas, testified that he would be 

prejudiced by the imposition of the suspension years after his conviction because of

numerous changes to his life circumstances since his conviction, specifically: he was 

no longer married and was no longer working due to a worsening neurological 

condition for which he had gone on total disability after his DUI conviction. The 

licensee further testified that he needed to drive himself to medical appointments that 

were not within either walking or biking distance from his home; he had no family 

who could help him with rides; due to his fixed income, he could not afford to take 

 

5 We applied Gingrich in Gifford v. Department of Transportation, Bureau of Driver 

Licensing, 172 A.3d 727 (Pa. Cmwlth. 2017), appeal granted, 184 A.3d 548 (Pa. 2018). In Gifford, 

the Delaware County Office of Judicial Support delayed in informing DOT of the licensee’s 

conviction for fleeing and eluding, which resulted in a one-year suspension of the licensee’s 

operating privilege, for a period of two years and seven months. During that time period, the 

licensee had become a delivery driver for a tire business and had no further violations or 

convictions. We reiterated the lack of a bright-line rule for determining whether a delay is 

extraordinary and noted that common pleas courts must analyze this issue on a case-by-case basis. 

Ultimately, given the facts of that case, we concluded that a court of common pleas did not err in 

applying the Gingrich exception and sustaining the licensee’s appeal. 
8

taxis or Uber; and his health insurance would not cover transportation costs. 

Applying the Gingrich factors, the court of common pleas found that the two-year, 

four-month delay in imposing the license suspension was unreasonable, that the 

licensee had no further violations for a significant number of years, and that the 

licensee would be prejudiced by the loss of his license. Accordingly, the court of 

common pleas sustained the licensee’s appeal and ordered the reinstatement of the 

licensee’s operating privilege. The Department appealed. 

This Court affirmed the decision of the court of common pleas on 

appeal. We closely examined the statutory framework of, and this Court’s case law 

regarding, license suspensions in relation to the first Gingrich factor, i.e., 

extraordinary delay. The Court then refined the first Gingrich factor by examining 

further objective criteria that common pleas courts should consider to determine 

whether a non-Departmental license suspension imposition delay qualifies as 

extraordinary: (1) the 10-day common pleas court-to-Department reporting 

requirement established by Section 6323(1)(i) of the Vehicle Code,

6

and (2) the 

 

6 Section 6323(1)(i) requires trial courts to report license suspension-qualifying convictions 

to the Department within 10 days 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, 

Device and Cosmetic Act, including an 

adjudication of delinquency or the granting of a 

consent decree, shall send to the department a 

(Footnote continued on next page...)
9

length of the underlying statutory suspension pursuant to 75 Pa.C.S. §3804(e). After 

examining these further objective criteria, we concluded:

[I]f 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.

Middaugh, ___ A.3d at ___, slip op. at 23 (footnote omitted). This Court then found 

that the court of common pleas did not err in concluding that the two-year, fourmonth delay in Middaugh was an extraordinary delay based on the objective 

measurement provided by the Court’s pronouncement.

Here, DOT sought to impose a one-year suspension of Licensee’s 

operating privilege following a 37-month delay by the Florida authorities in reporting 

Licensee’s conviction. This 37-month delay clearly exceeds the applicable period of 

Licensee’s license suspension (one year) plus 10 days, and the record provides no 

explanation for the delay. Therefore, provided the other Gingrich factors were met, 

the trial court could grant relief in accordance with Middaugh.

7

 With respect to these 

 

(continued...)

record of the judgment of conviction, acquittal 

or other disposition.

75 Pa.C.S. §6323(1)(i).

7 While DOT suggests that this Court declare that the Gingrich exception only applies to 

delays in excess of 10 years, given that the General Assembly set forth a 10-year “lookback” period 

in section 3806 of the Code, 75 Pa.C.S. §3806 (relating to the imposition of harsher penalties for 

multiple DUI offenses), we reject that suggestion in light of our recent opinion in Middaugh. 
10

other factors, the record reflects that Licensee had a second DUI conviction in this 

Commonwealth on November 19, 2012 (resulting from an arrest on January 28, 

2012), which would seemingly preclude satisfaction of the second Gingrich factor. 

However, this second factor simply discusses a lack of further violations for a 

significant number of years before the report is finally sent, which in this case did not 

occur until April 22, 2016. Hence, with the exception of a speeding ticket in 

December 2014, Licensee remained free of violations for a period of approximately 

51 months. 

However, as the trial court noted, the licensee in Gingrich also had two 

DUI convictions, one in 2004 and another in 2006, but otherwise maintained a clean 

driving record during the roughly 96-month delay between her second DUI 

conviction and the reporting of her 2004 conviction to DOT. Similar to our 

conclusion in Gingrich that a clean driving record for a period of 96 months was 

sufficient to meet the second prong, we likewise conclude that Licensee’s clean 

driving record for a period of 51 months met this prong. Further, we note that in the 

present case, the record reflects that DOT effectively suspended Licensee’s operating 

privilege for a period of approximately 25 months following his Florida DUI arrest. 

At the May 11, 2017 de novo hearing before the trial court, Licensee submitted a 

letter from DOT dated September 8, 2011, notifying him that his right to a driver’s 

license was “being denied due to information received from the State of FLORIDA,” 

as well as a restoration requirement letter from DOT dated September 23, 2013. See

R.R. at 121a-24a.

With respect to the third Gingrich factor, i.e., prejudice, the trial court 

essentially credited Licensee’s testimony that during the 37-month delay in reporting 

his Florida DUI conviction, Licensee established a client base with regard to a 

second, home healthcare job, that he had no means of maintaining this job and 
11

providing care to his clients without a license, and that he “developed a lifestyle and 

incurred liabilities based on the assumption that he would have [the second] job.” 

(R.R. at 97a.) We agree with the trial court that such testimony was sufficient to 

meet the third prong of Gingrich.

Conclusion

In light of this Court’s recent decision in Middaugh, and because 

Licensee presented sufficient evidence establishing that he met each of the three 

prongs for application of the “limited extraordinary circumstances” exception set 

forth in Gingrich, we cannot conclude that the trial court erred as a matter of law in 

sustaining Licensee’s appeal and rescinding the one-year suspension of his operating 

privilege imposed by DOT.

Accordingly, the order of the trial court is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aaron Naginey :

: No. 806 C.D. 2017

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

ORDER

AND NOW, this 3

rd day of January, 2019, the order of the Court of 

Common Pleas of the Seventeenth Judicial District, Union County Branch, dated 

May 11, 2017, is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge