A. Naginey v. Bureau of Driver Licensing , 201 A.3d 290 ( 2019 )


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  •                    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    appeal of Aaron Naginey (Licensee) and rescinded the one-year suspension of his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),2 as 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.
    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
    2
    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
    3
    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.
    4
    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).
    5
    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.
    6
    
    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.
    7
    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…)
    8
    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, four-
    month 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.
    9
    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
    10
    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
    11
    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 3rd 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
    

Document Info

Docket Number: 806 C.D. 2017

Citation Numbers: 201 A.3d 290

Judges: McCullough, Wojcik, Colins

Filed Date: 1/3/2019

Precedential Status: Precedential

Modified Date: 10/19/2024