IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kristoffer Orwig :

:

v. : No. 286 C.D. 2015

: SUBMITTED: April 29 , 201 6 Commonwealth of Pennsylvania

, : Department of Transportation, : Bureau of Driver Licensing, : Appella nt :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY
, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: June 3, 2016

The Commonwealth of Pennsylvania, Department of Transportation

(Department) , Bureau of Driver Licensing, appeals from an order of the Court of

Common Pleas of Lycoming County sustaining the statutory appeal of Licensee,

Kristoffer Orwig, fr om a one

- year suspension of his operating privi lege imposed

by the Department pursuant to its receipt of a report of a ten

- year old conviction

from the York County Clerk of Courts for violation of Section 3802(d)(1)(i) of the

Vehicle Code (Code) , 75 Pa. C. S. § 3802(d)(1)(i) , driving under the influence of a

Schedule I controlled substance

. In support of its decision to sustain Licensee’s

statutory appeal, common pleas cited the ten

- year delay in imposing the suspension

and the Department’s knowing reliance on the flawed system of the York County2

Clerk of Courts to provide it with records of conviction in a timely manner

pursuant to Section 6323(1)(i) of the Code

. 1 B ased on our determination that the

present case satisfies the extraordinary circumstances ex ception for the invalidation

of an operating privilege suspension as set forth in our recent decision in Gingrich

v. Department of Transportation, Bureau of Driver Licensing , ___ A.3d ___ (Pa.

Cmwlth., No. 748 C.D. 2015, filed March 30, 2016) , we affirm

. 2

The pertinent background is as follows. After its October 2014

receipt of Licensee’s May 14, 20 0 4, record of conviction from the York County

Clerk of Courts, the Department b y official notice dated and mailed November 4,

2014, advised Licensee that his o perating privilege was being suspended for one

year, effective December 9, 2014, as a consequence of his conviction for violating

1 Section 6323(1)(i) of the Code provides as follows:

§ 6323. Reports by courts

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 deli nquency 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).

2 Due to his failure to file a brief within the prescribed time per iod, this Court precluded Licensee from filing a brief in this matter.3

Section 3802 of the Code on March 1, 2004. 3 Licensee’s pro se statutory appeal

followed. 4

At the February 2015 de novo heari ng before common pleas

, counsel

for the Department acknowledged the statewide issue regarding the York County

Clerk of Court ’s untimely report of convictions to the Department and expressed

sympathy with Licensee’s position

. Counsel none theless argued tha t , because the

ten

- year delay was no t attributable to the Department

, the court should uphold

Licensee’s suspension in accordance with established case law

. 5 In response,

Licensee raised a statute of limitations defense and represented to the court that,

regardless of the locus of fault, he would be prejudiced by the suspension.

Specifically , Licensee stated: “My life is completely different from what it was ten

years ago. Maybe losing m y license then wouldn’t ha ve really mattered much, but

3 As the Department acknowledges in its brief, its notice incorrectly reference d May 14, 2014, as the date of conviction and not May 14, 2004

. February 3, 2015, Hearing,
Commonwealth E xhibit No. C

- 1; Reproduced Record ( R.R. ) at 25a. Licensee, who appeared pro

se before common pleas at the de novo hearing, did not object to the admission of the Department’s exhibit . There is no dispute , however, that the conviction occurred in May 2004 and, indeed, the exhibit also include s a report from the Clerk of Courts reflecting a 2004
conviction date and the Department’s October 2014 receipt of that report

. Id . at 27a

. 4 Pursuant to Section 1550(b)(1)(i) of the Code, 75 Pa. C.S. § 1550(b)(1)(i), the Department afforded Licensee the automatic supersedeas that, with few exceptions , a ccompanies a statutory appeal. February 3, 2015, Hearing, Commonwealth Exhibit No. C

- 1; R.R. at 34a.

5 In Terra ciano v. Department of Transportation, Bureau of Driver Licensing , 753 A.2d 233, 236 (Pa. 2000), the Court held that, i n order to sustain an appeal of a license suspension based on delay, a licensee must establish that: (1) an unreasonable delay chargeabl e to the Department led the licensee to believe that his operating privilege would not be impaired; and (2) prejudice would result in having the licensee’s operating privilege suspended after that delay. Once a licensee raises the delay defense, the Depar tment must then establish that the delay was caused by something other than administrative inaction. Grover v. Dep’t of Transp., Bureau of Driver Licensing , 734 A.2d 941, 943 (Pa. Cmwlth. 1999). As a general rule, i f the Department satisfies this burden, then the licensee’s appeal should be dismissed. Id . If it does not meet this burden, then the burden shifts to the licensee to establish prejudice. Id

.4

now it’s pretty important. And that’s why I’m here.” February 3, 2015, Hearing,

Notes of Testimony (N.T.) at 4; Reproduced Record (R.R.) at 14a.

In sustaining Licensee’s appeal, c ommon pleas determi ned that it was

unreasonable for the Department to have persist ed in relying on York County’s

flawed system and to have applied suspensions without regard to the passage of

time or prejudice to the licensees

, when it “was well aware of the break down [sic]

in the system of waiting for the York County Clerk of Courts to supply convictions

to the Department.” April 28, 2015, Opinion of Common Pleas at 3. C ommon
pleas , therefore, determined that the ten

- year delay in imposing the suspension was

attributable to the Department

. Moreover

, taking into consideration the fact that

Licensee had maintained a clean driving record for over eight years, th e reby

demonstrating that he had dram a tically improved his behavior

, the court c redited

his testimony that he would be prejudiced by the loss of his license over ten years

after the conviction at issue

. Employing slightly different reasoning and based on

our holding in Gingrich , we agree that the untimely suspension was not warranted. 6

In Gingrich

, the Departmen t there, as here, attempted to impose a

license suspension upon its receipt of a ten

- year

- old conviction from the York

County Clerk of Courts. Although it found the Clerk’s delay truly unconscionable,

the c ourt of c ommon p leas of the county in which the l icensee filed h er appeal

nonetheless reinstated the license suspension in accordance with the well

established general rule requiring the dismissal of a license suspension appeal

when the delay cannot be attribut ed to the Department. We reversed, emphasizing

6 This Court may affirm common pleas on different grounds where its result is correct and

the basis on which we affirm is clear from the record. Rabenold v. Zoning Hearing Bd. , 777 A.2d 1257, 1263 n.7 (Pa. Cmwlth. 2001).5

the ongoing applicability of the aforementioned general rule but recognizing an

extraordinary circumstances exception thereto. Specifically , we concluded that the

record demonstrated the requisite extraordinary circumstances for invalidati ng a n
operating privilege suspension that had “ lost the underlying public safety purpose

and now simply [was] a punitive measure sought to be imposed too long after the

fact.” Gingrich

, ___ A.3d at ___, slip op. at 12. In support of this exception , we

cited the ten

- year gap between the conviction at issue and the suspension, the

absence of additional driving

- related issues since Gingrich’s last conviction and

her credible testimony regarding the prejudice she would suffer if the Department

implemented the sus pension . Accordingly, we determined that the presence of

extraordinary circumstances merited Gingrich’s requested relief.

In the present case, we likewise conclude that the invalidation of the

suspension is warranted, albeit on slightly different grounds than those on which

common pleas relied

. Contrary to common pleas’ determination

, it is clear that the

ten

- year delay was attributable to the York County Clerk of Courts

. As the record

reflects, the Clerk electronically transmitted a certified record of Licensee’s May

2004 conviction to the Department in October 2014

, and the Department’s Bureau

of Driver Licensing timely sent Licensee a suspension notice in November 2014.

To this extent

, t he present case is analogous to Gingrich in that it , too, satisf ies the

extraordinary circumstances exception to the general rule that only delays

attributable to the Department be vacated

. As in Gingrich

, the Clerk in the instant

case did not report the conviction at issue for an extraordinarily extended period of

time, the licensee ’ s driving record was devoid of further violations for a significant

number of years preceding the report, and the licensee was able to demonstrate6

prejudice. 7 Therefore, rega rdless of attribution of delay, common pleas’

invalidation of the license suspension was proper

.

Accordingly, we affirm. 8

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge

7 We reject the Department’s argument that Licensee failed to establish prejudice. Common pleas found credible his testimony that his life is now completely different than in May 2004

, that his license is important to him and that losing it would matter more now than it would have

mattered ten years ago

. In support of its credibility finding, common pleas further noted that

Licensee did not have any driving infractions after 2007. Thus, contrary to the Department’s contention, t he fact that Licensee did not testify with more specificity regarding detrimental reliance on the delay is of no moment.

8 In concluding that Gingrich control s the present case , we echo our observation there in that we are not creating a bright

- line rule regarding the requisite number of years that will trigger sufficient prejudice for sustaining a licensee’s statutory appeal due to delay. Id . at ___, slip op. at 13 n.7. In addition, we reiterate that the specific circumstances of each case must be considered and that such relief is limited to extraordinary circumstances.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kristoffer Orwig :

:

v. : No. 286 C.D. 2015

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : Appellant :

O R D E R

AND NOW, this 3rd day of June, 201 6 , the order of the Court of

Common Pleas of Lycoming County is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge