IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred H. Butler, IV, Jose Javier Colon, :

Michael J. Eisenhart, II, Vincent D. :

Martin, Matthew B. Hess, Howard :

Johnson, Christopher L. Gantz, Shawn :

Benedict, Matthew Richard Gallatin, :

Seth Edward Gray, Joshua M. Jackson, :

Joshua M. Jackson, Jeremy D. Williams, :

Evan M. Zellman, :

Appellants :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, : No. 2533 C.D. 2015

Bureau of Driver Licensing : Submitted: August 12, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: November 21, 2016

Alfred H. Butler, IV (Butler), Jose Javier Colon (Colon), Michael J. 

Eisenhart, II (Eisenhart), Vincent D. Martin (Martin), Matthew B. Hess (Hess), 

Howard Johnson (Johnson), Christopher L. Gantz (Gantz), Shawn Benedict 

(Benedict), Matthew Richard Gallatin (Gallatin), Seth Edward Gray (Gray), Joshua 

M. Jackson (Jackson), Jeremy D. Williams (Williams) and Evan M. Zellman 

(Zellman) (collectively, Licensees)1appeal from the York County Common Pleas 

Court’s (trial court) November 10, 2015 order dismissing their appeals and reinstating 

 

1 Butler discontinued his appeal on March 23, 2016.
2

the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver

Licensing’s (DOT) operating privilege suspensions.2 

During a 2014 audit of the trial court’s Clerk of Court’s (Clerk) office, it 

was discovered that approximately 4,300 convictions under The Controlled 

Substance, Drug, Device and Cosmetic Act3(Act) and the Vehicle Code4

(Convictions) dating as far back as 2004 had not been reported to DOT. Pursuant to 

Section 6323(1)(i) of the Vehicle Code,

5

the convictions were required to be filed on 

Notice of Conviction Form DL-21 within 10 days of the final judgments. Late in 

2014, the Clerk’s office reported the Convictions to DOT. DOT issued suspension 

notices to the reported licensees, as required by Section 1532(c) of the Vehicle Code, 

75 Pa.C.S. § 1532(c) (relating to suspensions for Act violations). The Licensees6and 

 

2 Appeals by similarly-situated licensees Lanny S. Riffey (Riffey v. Dep’t of Transp., Bureau 

of Driver Licensing (Pa. Cmwlth. No. 2537 C.D. 2015, filed September 28, 2016)) and Cole M. 

Viani (Viani v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth. No. 2538 C.D. 2015, 

filed September 28, 2016)) were recently decided by this Court.

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

4

75 Pa.C.S. §§ 101-9805.

5

Section 6323(1)(i) of the Vehicle Code states:

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 [S]ection 13 

of the [Act], including an adjudication of delinquency or the granting 

of a consent decree, shall send to [DOT] a record of the judgment of 

conviction, acquittal or other disposition.

75 Pa.C.S. § 6323(1)(i); see also Section 81.4(a) of DOT’s Regulations which provides:

General rule. 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 [the Vehicle Code], shall send to [DOT] 

a record of the judgment of conviction, acquittal or other disposition 

on Form DL-21. 

67 Pa. Code § 81.4(a).

6 DL-21 Forms were issued to DOT for Licensees in this appeal as follows: Colon for 

Docket No. 2014-SU-3236-27; Eisenhart for Docket No. 2014-SU-3432-27; Martin for Docket No. 

2014-SU-3161-27; Hess for Docket No. 2015-SU-0199-27; Johnson for Docket No. 2014-SU-2652-
3

others similarly situated (collectively, Petitioners) appealed to the trial court pursuant 

to Section 1550(a) of the Vehicle Code, 75 Pa.C.S. § 1550(a) (relating to appeals 

from driver’s license suspensions) (Suspension Appeals).

7

 On March 20, 2015, the 

trial court consolidated Petitioners’ appeals.

On March 24, 2015, Petitioners filed a mandamus action with this Court 

(Smires v. O’Shell (Pa. Cmwlth. No. 146 M.D. 2015)) seeking to have the Clerk 

nullify their DL-21 Forms or redate them to their conviction dates (Mandamus 

Action), and to have DOT reject their DL-21 Forms as untimely filed. The Clerk and 

DOT filed preliminary objections to dismiss the Mandamus Action because Section 

1550(a) of the Vehicle Code specifies the method for challenging their suspensions 

and, thus, mandamus relief was barred.

 On March 25, 2015, the trial court held a hearing on the Suspension 

Appeals during which the parties agreed that: (1) Petitioners were convicted between 

2005 and 2010 of criminal offenses requiring their drivers’ licenses to be suspended

for some period of time; (2) the Clerk’s office did not report Petitioners’ convictions 

to DOT until the second half of 2014; and, (3) Petitioners suffered prejudice as a 

result of the delay. See Reproduced Record (R.R.) at 31a-32a, 77a-81a, 337a. The 

trial court deferred its decision on the Suspension Appeals pending the 

Commonwealth Court’s decision in the Mandamus Action. See R.R. at 337a.

 

27; Gantz for Docket No. 2014-SU-4112-27; Benedict for Docket No. 2014-SU-3699-27; Gallatin 

for Docket No. 2014-SU-3192-27; Gray for Docket No. 2014-SU-2758-27; Jackson for Docket 

Nos. 2014-SU-3235-27 and 2014-SU-3413-27; Williams for Docket No. 2014-SU-3891-27; and 

Zellman for Docket No. 2014-SU-3096-27. See Reproduced Record (R.R.) at 31a-32a.

DOT argues that Licensees “failed to number the pages of [the] reproduced record in Arabic 

figure followed ‘by a small a’” as required by Pennsylvania Rule of Appellate Procedure 2173.

Herein, we will refer to the page numbers in their proper format.

7

Petitioners originally named DOT and Clerk Dan O’Shell (O’Shell) as appellees. On 

January 8, 2015, the trial court dismissed O’Shell from the action. See R.R. at 30a.
4

On October 26, 2015, this Court sustained the preliminary objections 

and dismissed the Mandamus Action,8holding: 

[Petitioners] may challenge their suspensions for any 

reason, including the Clerk’s delay in reporting them to 

[DOT]. Unfortunately for [Petitioners], the precedent has 

established that [DOT] cannot be faulted for delays not 

within its control. Simply because the case law is not in 

[Petitioners’] 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 [Petitioners] have in the statutory appeal. This is the 

appropriate vehicle by which [Petitioners] can raise all of 

their constitutional and statutory claims. [Petitioners’]

statutory appeal includes appellate review. In sum, the 

statutory appeal is the vehicle by which they can challenge 

their license suspensions.

[Petitioners] argue that they seek relief from the Clerk, not 

[DOT]. 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. [DOT] must suspend 

licenses upon receipt of the notice of conviction. See 75 Pa. 

C.S. § 1532(c) ([DOT] ‘shall suspend the operating 

privilege of any person upon receiving a certified record of 

the person’s conviction. . . .’). Just as [DOT] cannot issue 

directives to a clerk of court, likewise the Clerk cannot 

direct [DOT] to revoke suspensions that were previously 

issued upon notice of [Petitioners’] convictions.

Because [Petitioners] have a statutory remedy and no clear 

right to relief, the preliminary objections filed by [DOT]

and the Clerk are sustained, and the petition for writ of 

mandamus is dismissed.hCertified Record (C.R.) Item 2, 

Trial Ct. Op. Annex A at 18-19 (footnote omitted). Based 

thereon, on November 10, 2015, the trial court dismissed

 

8 On December 2, 2015, Petitioners appealed to the Supreme Court (Smires et al. v. O’Shell, 

Pa. No. 85 MAP 2015)). Petitioners discontinued the appeal on June 7, 2016.
5

Petitioners’ Suspension Appeals, and reinstated Petitioners’

suspensions, stating:

Constrained as we are then by precedent, it would be 

pointless for this [trial court] to consider any possible basis 

to remedy the colossal breakdown in the Clerk’s office (and 

indirectly the court ‘system’) in failing to timely report

approximately 5,000 criminal convictions implicating 

driving privileges by requiring suspension thereof. We 

certainly do not condone the underlying conduct resulting in 

the convictions requiring suspension of a person’s drivers

license. However, in this case, for these [P]etitioners, it is 

undisputed and therefore undeniable, each has suffered 

prejudice occasioned by the extraordinary delay.

We pose the rhetorical questions: [A]re not the [c]ourts the 

independent insulation between the citizenry and 

government actions or prejudicial inactions? Can this not 

be viewed as such a breakdown of the [c]ourt[]s and 

enforcement system that a citizen should have court 

intervention to undo the resulting prejudice?

I would urge my appellate colleagues to be open to the 

possibility of being persuaded to revise previously[-

]established principles.

See R.R. at 337a-340a. On December 4, 2015, Licensees appealed to this Court.9, 10 

Licensees argue:

This Court recognizes that the current statutory scheme 

under [Section 1550 of the Vehicle Code] and the case law 

that interprets it, simply does not provide a remedy for 

[Licensees]. There is currently no procedural tool to hold a

negligent [c]lerk of [c]ourts liable for a flagrant violation of

[Section 6323(1) of the Vehicle Code], and which would 

allow [a licensee] who has demonstrated prejudice to have a 

remedy at law. There is simply no remedy at law to address 

the negligence of the [Clerk]. The Gingrich [v. Department 

 

9

Licensees filed motions for supersedeas, which the trial court granted on December 10, 

2015.

10 “Our review is limited to determining whether the trial court’s findings are supported by 

substantial evidence, whether the trial court committed any errors of law and whether it abused its 

discretion.” Rawson v. Dep’t of Transp., Bureau of Driver Licensing, 99 A.3d 143, 147 n.2 (Pa.

Cmwlth. 2014).
6

of Transportation, Bureau of Driver Licensing, 134 A.3d 

528 (Pa. 2016)] case carves out a reasonable and workable 

exception to the general rule and [Licensees] urge this 

[C]ourt to apply that exception in this case.

Licensees’ Br. at 2-3. 

Recently, in Lanny S. Riffey (Riffey v. Dep’t of Transp., Bureau of Driver 

Licensing (Pa. Cmwlth. No. 2537 C.D. 2015, filed September 28, 2016)) and Cole M. 

Viani (Viani v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth. No. 2538 

C.D. 2015, filed September 28, 2016)),

11 this Court held:

While the general rule remains that the delay must be 

attributable to [DOT] to warrant setting aside a license

suspension, this Court recently recognized a limited 

exception to that rule in Gingrich . . . . Under the 

exception, relief to a licensee may be appropriate upon a 

showing of the following: (1) a conviction not reported for 

an extraordinarily extended period of time, (2) a lack of 

further violations for a significant number of years before 

the report is finally sent, and (3) prejudice. Id.

In Gingrich, the licensee’s conviction was not reported to 

[DOT] for nearly ten years. Id. at 529.[FN]6 She had no 

further violations for eight years prior to the report being 

sent to [DOT]. Id. at 529-30. Following her conviction, the

licensee obtained a bachelor’s degree, secured employment, 

and had a child. Id. at 530. She testified that imposing the 

suspension now would impact her ability to drive her child 

to school, and would likely result in the loss of her job, 

which requires her to drive. Id. Because she satisfied the 

requirements for the narrow exception, we vacated her 

suspension.

The record in the case sub judice is insufficient for this 

Court to determine whether [the licensee] qualifies for the 

Gingrich exception. The application of this exception,

especially the determination of prejudice to the licensee, is

 

11 We acknowledge that this Court’s unreported memorandum opinions may be cited “for 

[their] persuasive value, but not as a binding precedent.” Section 414 of the Commonwealth 

Court’s Internal Operating Procedures, 69 Pa. Code § 69.414. In light of the nearly identical facts 

of these recently-decided cases, they are cited herein for their persuasive value.
7

exceedingly factual in nature. The trial court’s acceptance 

of counsel’s representation that every licensee, including 

[licensee], would testify that he or she was prejudiced is not 

enough. Accordingly, we vacate and remand for further

proceedings to determine whether [the licensee] can 

demonstrate that he is entitled to relief from the imposition 

of the [] license suspension under Gingrich.

[FN]6

This Court expressly declined to ‘establish a 

bright line in which a delay becomes extraordinary.’ 

Gingrich, 134 A.3d at 534. However, we held that a 

nearly ten-year delay in reporting of a conviction 

met that standard. Id. at 535.

Riffey, slip op. at 3-4; Viani, slip op. at 3-4.

DOT contends that since some Licensees experienced a less than 10-year 

delay (i.e., 3 to 7-year delay),12 several have had subsequent violations,13 and specific 

prejudice is not apparent on the face of the record, Licensees have not satisfied the 

Gingrich exception requirements. Indeed, because application of the Gingrich

exception is “exceedingly factual in nature,” and the record “sub judice is insufficient 

for this Court to determine whether [Licensees] qualif[y]” thereunder, “we vacate and 

remand for further proceedings to determine whether [Licensees] can demonstrate 

that [they are] entitled to relief from the imposition of the [] license suspension[s]

under Gingrich.” Riffey, slip op. at 4; Viani, slip op. at 4.

 

12 This Court has held that a 7-year, 9-month delay between conviction and DOT suspension 

which, “combined with [a] lack of additional convictions and [a] showing of prejudice, [] created a 

circumstance where the [delayed] suspension [] lost the underlying public safety purpose and [] 

simply [was] a punitive measure sought to be imposed too long after the fact.” Capizzi v. Dep’t of 

Transp., Bureau of Driver Licensing, 141 A.3d 635, 637 (Pa. Cmwlth. 2016).

13 Licensees’ purported subsequent violations, see DOT Br. at 25, were not part of the trial 

court’s record. “[B]riefs filed in this Court are not part of the evidentiary record and assertions of 

fact therein that are not supported by the evidentiary record may not form the basis of any action by 

this Court.” Bingnear v. Workers’ Comp. Appeal Bd. (City of Chester), 960 A.2d 890, 896 (Pa. 

Cmwlth. 2008); see also Sch. Dist. of Pittsburgh v. Provident Charter Sch. for Children With 

Dyslexia, 134 A.3d 128, 143 n.27 (Pa. Cmwlth. 2016) (“Because statements in briefs do not

constitute evidence of record and were not before the [trial court] when it rendered its decision, we 

will not consider them.”).
8

For all of the above reasons, the trial court’s order is vacated and the 

matter is remanded for further proceedings consistent with this opinion.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred H. Butler, IV, Jose Javier Colon, :

Michael J. Eisenhart, II, Vincent D. :

Martin, Matthew B. Hess, Howard :

Johnson, Christopher L. Gantz, Shawn :

Benedict, Matthew Richard Gallatin, :

Seth Edward Gray, Joshua M. Jackson, :

Joshua M. Jackson, Jeremy D. Williams, :

Evan M. Zellman, :

Appellants :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, : No. 2533 C.D. 2015

Bureau of Driver Licensing :

O R D E R

AND NOW, this 21st day of November, 2016, the York County 

Common Pleas Court’s (trial court) November 10, 2015 order is vacated, and this 

matter is remanded to the trial court for further proceedings consistent with this 

opinion. 

Jurisdiction is relinquished.

___________________________

ANNE E. COVEY, Judge