PennDOT, Bur of Driver Lic, Aplt. v. Middaugh, S.

Opinion

[J-7-2020] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 45 MAP 2019 DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING : Appeal from the Order of the : Commonwealth Court at No. 815 CD Appellant : 2017 dated October 31, 2018 Affirming : the Order of the Delaware County Court : of Common Pleas, Civil Division, at No. v. : 2016-008188 dated May 19, 2017, : exited May 22, 2017. : STEPHEN MIDDAUGH, : ARGUED: MARCH 10, 2020

Appellee

OPINION

CHIEF JUSTICE SAYLOR DECIDED: January 20, 2021

We allowed appeal to determine whether the Department of Transportation

(PennDOT) was precluded from suspending an individual’s driving privileges based on

a DUI conviction, where there was a lengthy delay between the conviction and the time

the driver was notified of the suspension.

I.

In March 2014, Appellee was convicted in the Delaware County common pleas

court of driving under the influence (“DUI”) pursuant to Section 3802(a)(2) of the Vehicle

Code. See 75 Pa.C.S. §3802(a)(2) (relating to “general impairment” and prohibiting the

operation of a vehicle if the driver has a blood-alcohol content between 0.08% and 0.10% within two hours after driving).1 The Delaware County Office of Judicial Support

– the equivalent in that county of a court clerk’s office, see Middaugh v. PennDOT, 196

A.3d 1073, 1075 & n.5 (2019) – was required to send PennDOT a record of the

conviction within ten days after its occurrence. See 75 Pa.C.S. §6323(1)(i). For

reasons that remain unclear, that office waited until early August 2016, twenty-eight

months after the ten-day deadline had passed, to notify PennDOT of the conviction.

When PennDOT received the notification, it sent Appellee a letter, dated August 23,

2016, informing him that his driving privileges would be suspended for one year

beginning in late September 2016. See id. §3804(e) (relating to the suspension of

operating privileges upon conviction of a predicate offense such as DUI). The letter

added that Appellee had the right to file a timely appeal. See id. §1550(a).

Appellee exercised that right and filed an appeal in the Delaware County Court,

challenging the suspension’s validity due to the delay involved. The court held a

hearing at which Appellee’s driving record was entered into evidence, and Appellee was

the sole witness. His testimony centered largely on changes in his life between 2014,

when his license would have been suspended but for the Office of Judicial Support’s

delay in reporting the conviction to PennDOT, and 2016.

Specifically, Appellee testified that: in 2014 he was employed as an information-

technology professional and lived with his wife; his car was “totaled” the day he was

arrested for DUI, and he waited to buy a new one because he was expecting his driving

privileges to be suspended; when it appeared that might not occur, he bought a new

car; at the time, he could afford such a purchase because he was employed; had his

privileges been suspended in a timely manner, he could have relied on his wife to drive

him to appointments in her car; now, however, he is divorced, unemployed, and lives

1 Appellee’s conviction was based on a negotiated guilty plea.

[J-7-2020] - 2 alone; he is 61 years old and classified for Social Security purposes as totally disabled

due to a neurological disorder; his condition has worsened since the time of his

conviction; his treatment requires regular visits to five doctors; his only income is a

monthly Social Security disability payment of $1,621; he needs to drive to attend

doctor’s appointments and purchase medicine and groceries, because there is no friend

or relative available to help with these tasks; he cannot afford to hire a ride for such

purposes because his disability income – which is approximately one third of his income

when he was employed – would be insufficient for that expense; moreover, his spending

already exceeds his income by about $250 per month. Additionally, Appellee explained

that he was expecting his license to be suspended shortly after he pled guilty and did

not know the reason for the delay. See N.T., Jan. 24, 2017, at 5-24.

The trial court credited Appellee’s testimony and ultimately ruled in his favor. In

reaching its holding, the court relied on Gingrich v. PennDOT, 134 A.3d 528 (Pa.

Cmwlth. 2016), which set forth the following rule for situations where the delay is

attributable to a court clerk rather than PennDOT:

[W]here . . . a licensee is able to demonstrate all of the following: [(1)] a conviction that is not reported for an extraordinarily extended period of time; [(2)] the licensee has [no further violations of the Vehicle Code] for an extended period; and [(3)] prejudice, it may be appropriate for common pleas to grant relief. Id. at 535. Applying the standard, the trial court found that the 28-month delay was

extraordinary, Appellee did not have any further violations during that period, and

Appellee had demonstrated he would be prejudiced by the lateness of the suspension,

particularly in view of his medical condition and the impact a suspension would have on

it. See PennDOT v. Middaugh, No. 2016-8188, Findings of Fact and Conclusions of

Law, at 5, ¶¶30-33 (C.P. Del. May 19, 2017).

[J-7-2020] - 3 A divided Commonwealth Court panel affirmed in a published decision. See

Middaugh v. PennDOT, 196 A.3d 1073 (Pa. Cmwlth. 2018) (en banc). The majority

initially noted that, where PennDOT is at fault, license suspensions have been judicially

set aside where the delay was so protracted that it led the driver to believe no

suspension was forthcoming, and the driver relied on that belief to his or her detriment.

See id. at 1080-81 (quoting, inter alia, PennDOT v. Green, 119 Pa. Cmwlth. 281, 284,

546 A.2d 767, 769 (1988), aff’d per curiam, 524 Pa. 98, 569 A.2d 350 (1990)); accord

Terraciano v. PennDOT, 562 Pa. 60, 66, 753 A.2d 233, 236 (2000) (citing Fischer v.

PennDOT, 682 A.2d 1353, 1355 (Pa. Cmwlth. 1996)). The majority observed, however,

that when the clerk’s office of one of Pennsylvania’s sixty judicial districts is responsible

for the delay, courts have traditionally been reluctant to provide such relief so as to

prevent erosion of the roadway-safety rationale underlying the license suspensions.

See Middaugh, 196 A.3d at 1081-82 (discussing cases); accord Pokoy v. PennDOT,

714 A.2d 1162, 1164 (Pa. Cmwlth. 1998) (indicating that only delays attributable to

PennDOT can form the basis for relief). See generally infra note 4.

Nevertheless, the majority explained, the advent of electronic reporting has

improved the ease with which clerks can transmit notices to PennDOT and detect

reporting delays. Thus, the majority continued, it has become more reasonable for

reviewing courts to scrutinize lengthy intervals occasioned by a court clerk’s failure to

notify PennDOT of a predicate conviction within a reasonable time. The majority

expressed that this line of reasoning ultimately led to the Gingrich decision and its

articulation of the above-quoted three-factor test for delays which are not attributable to

PennDOT. See Middaugh, 196 A.3d at 1082 (discussing Gingrich).2

2 In Gingrich, relief was granted where the court clerk waited ten years to report the conviction to PennDOT, and, in the interim, the driver had changed her position to her (continued…) [J-7-2020] - 4 The majority clarified that, under Gingrich, relief based on a judicial clerk’s delay

is reserved for “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.’” Id. at 1083 (quoting Gingrich, 134 A.3d

at 534). Thus, the court stated that Gingrich, in effect, applied a rationale based on due

process and fairness, pursuant to which PennDOT may not suspend privileges where

doing so would no longer meaningfully protect the public and would become additional

punishment resulting from the conviction. See id. (quoting Gingrich, 134 A.3d at 534).

It specified, though, that a court clerk’s reporting delay can only be deemed

“extraordinary” if it exceeds the suspension period (here, twelve months) plus the ten-

day window statutorily prescribed for notification to PennDOT. See id. at 1086.3

Applying Gingrich to the present facts, the majority pointed out that, as the 28-

month delay exceeded the suspension period plus ten days, the trial court was

permitted to view it as extraordinary. It also agreed summarily with the trial court’s

conclusion that Appellee’s suspension “is not in the interest of protecting the public, but

(…continued) detriment based on her belief that her license would not be suspended. See Gingrich, 134 A.3d at 534-35. The circumstances involved in Gingrich are discussed below.

3This lower limit of ten days plus the suspension period does not appear in Gingrich. It was added to the Gingrich test by the panel in the present matter to serve “the need for consistency and certainty in Gingrich’s application,” id. at 1086 n.17, and to balance objectives relating to public safety with drivers’ due process rights. See id. at 1086-87.

In deciding that the sum of the two statutory periods constitutes the lower bound for a determination of extraordinariness, the panel referred to the trial court’s explanation that drivers should not have to “put [their lives] on hold” indefinitely waiting for a notice of suspension that may arrive years later than contemplated by statute. PennDOT v. Middaugh, No. 2016-8188, Opinion, at 10 (C.P. Del. June 21, 2017). The panel expressed that it would not be extraordinary for drivers to have to put their lives on hold during the anticipated period of suspension. See Middaugh, 196 A.3d at 1085-86.

[J-7-2020] - 5 rather will be an additional punishment to be imposed years later.” Id. at 1087 (quoting

PennDOT v. Middaugh, No. 2016-8188, Opinion, at 11 (C.P. Del. June 21, 2017)).

Judge Covey filed a concurring and dissenting opinion, agreeing that Appellee

was entitled to relief, but disagreeing with the formula fashioned by the majority for the

smallest delay that can be deemed extraordinary. She opined, as well, that the Gingrich

test should be abandoned. In her view, because prejudice is inherent to the suspension

of driving privileges, it should not be a factor that can give rise to relief. She concluded

that a flexible standard aimed at assessing the threat to public safety in each individual

case should be used – for example, by giving substantial weight to whether the driver

accrued additional Vehicle Code violations after the conviction which triggered the

license suspension. See Middaugh, 196 A.3d at 1087-88.

Judge Ceisler dissented, suggesting that Gingrich should be overruled and the

court should return to the pre-Gingrich rule exemplified by Pokoy, where only delays

attributable to PennDOT can potentially form the basis for relief.4 In her view, drivers

4 In Green, the intermediate court explained the rationale for this rule as follows:

Under the Vehicle Code, [PennDOT] is the agency made responsible for imposition of the sanctions which the law uses to keep unsafe drivers off the highways for stated periods. This court has held that a material breach by [PennDOT] of that responsibility will invalidate the legal effectiveness of the sanction. If [PennDOT] 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 [PennDOT]. 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 failure would be much more difficult.

Green, 119 Pa. Cmwlth at 284, 546 A.2d at 769.

[J-7-2020] - 6 who are uncertain about the status of a pending suspension can seek information from

PennDOT, and unsafe drivers should not receive a windfall simply because a county

court’s clerical staff failed to comply with its statutory obligations in a timely manner.

See id. at 1088-90.

This Court granted allocatur to decide the following issue framed by PennDOT:

Did the Commonwealth Court err as a matter of law and abuse its discretion in affirming the trial court’s order rescinding an operating privilege suspension that was imposed less than three years after [Middaugh]’s driving under the influence (DUI) conviction, where the delay was entirely due to the failure of the Delaware County Office of Judicial Support to timely notify the Department of Transportation of the conviction? Middaugh v. PennDOT, ___ Pa. ___, ___, 208 A.3d 460, 461 (2019) (per curiam).

II.

When reviewing a trial court’s ruling in a license-suspension appeal, we evaluate

whether its findings of fact are supported by competent evidence and whether it

committed an error of law or abused its discretion. See Terraciano, 562 Pa. at 65-66,

753 A.2d at 236. Here, the findings largely tracked Appellee’s testimony which, as

noted, was expressly credited by the trial court. Beyond this, the court applied precepts

set forth in the Commonwealth Court’s Gingrich decision. Whether that action was

proper largely depends on the viability of the Gingrich standard. This, in turn, raises an

issue of law as to which our review is plenary and de novo. See PennDOT v. Weaver,

590 Pa. 188, 191, 912 A.2d 259, 261 (2006).

In arguing that the Commonwealth Court’s order should be reversed, PennDOT

refers to this Court’s decisions in Terraciano and PennDOT v. Gombocz, 589 Pa. 404,

909 A.2d 798 (2006). Those cases involved license suspensions which, like the one in

this case, were delayed for years. However, the delays in those matters occurred in the

[J-7-2020] - 7 midst of litigation ensuing from the driver’s decision to appeal the license suspension,

and were not based on belated notification from PennDOT. The decisions employed a

straightforward rule: when the litigation delay is attributable to the driver’s inaction, the

suspension will be upheld; but when the litigation delay is chargeable to PennDOT, the

suspension will be set aside so long as the driver is able to demonstrate two elements:

that the delay led the driver to believe no suspension would ultimately issue, and that

the driver would be prejudiced by it.5

Presently, PennDOT highlights that it lacks statutory authorization to suspend a

driver’s license until it receives a certified record from the court system. It suggests

that, since it cannot be held responsible for such a delay, it should not be judicially

restrained from suspending a driver’s privileges under those circumstances. PennDOT

points out that this principle was expressly recognized in Terraciano, which stated that

“judicial delay may not be attributable to PennDOT when determining whether there was

an unreasonable delay,” Terraciano, 562 Pa. at 67 n.9, 753 A.2d at 237 n.9 (citing

Walsh v. PennDOT, 137 Pa. Cmwlth. 549, 553, 586 A.2d 1034, 1036-37 (1991)), and

that it was reaffirmed in Gombocz, which applied the same rule in holding that

PennDOT was permitted to suspend the driver’s privileges. See Gombocz, 589 Pa. at

409-10, 909 A.2d at 802 (2006). See Brief for PennDOT at 11-12.

The statement in Terraciano did acknowledge the governing rule in the

Commonwealth Court in this regard. However, the case concerned litigation delay, not

5 A fair reading the cases suggests that the prejudice involved would have to exceed that ordinarily associated with suspended driving privileges, as it would have to stem from the delay itself. Thus, for example, during the seven-year period between her conviction and her license suspension, Ms. Terraciano obtained a commercial driving license from PennDOT and became employed as a bus driver. Because she would have lost her job if her license had been belatedly suspended, she was found to have demonstrated prejudice. See Terraciano, 562 Pa. at 68-69, 753 A.2d at 237.

[J-7-2020] - 8 a delayed initial notice of suspension to the driver. Gombocz likewise involved litigation

delay, the only difference being that the driver rather than PennDOT had the burden to

move the case forward in the common pleas court. This latter situation differs materially

from the present one in that the driver always maintained the ability to advance the

proceedings toward a final judicial resolution of whether his license would be

suspended; it was his inaction which resulted in the delay, not that of any governmental

entity. In both Terraciano and Gombocz, then, the threshold question was whether the

driver or the government was at fault for the delay.

This Court has never decided a case involving an unreasonably-delayed initial

PennDOT suspension notice to a driver, nor has it undertaken to resolve whether an

extraordinary license-suspension delay arising from a belated report from a court clerk

to PennDOT should be treated differently from a situation where PennDOT fails to take

timely action in response to a timely report. This latter question is fairly subsumed

within the issue framed by PennDOT (quoted above), which emphasizes that the long

delay here was attributable to the Office of Judicial Support – again, the equivalent of a

common pleas court clerk’s office – rather than to PennDOT.

III.

Initially, we note that the statutory scheme presently in issue is mandatory in that

it does not leave room for administrative discretion in deciding whether to suspend a

driver’s operating privileges. In this respect, the General Assembly clarified that certain

predicate offenses such as DUI must be reported to PennDOT:

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 [Controlled Substance, Drug, Device and Cosmetic Act], including an adjudication of delinquency or the granting of a consent decree, shall send to [PennDOT] a record of the judgment of conviction, acquittal or other disposition.

[J-7-2020] - 9 75 Pa.C.S. §3804(e)(1) (emphasis added). PennDOT is then required to suspend

privileges: when a driver is convicted of DUI, upon receiving the report PennDOT “shall

suspend the [driver’s] operating privileges” for the specified period of time. Id.

This mandatory feature of the system is consistent with the underlying policy

objective of enhancing public safety by removing dangerous drivers from the roadways

for a defined period of time after a predicate violation. The inconvenience and

disruption stemming from a license suspension serves the same purpose by deterring

drivers from repeating their dangerous conduct after privileges are restored. Accord

People v. Schaefer, 609 N.E.2d 329, 331 (Ill. 1993) (“The Illinois legislature has

determined that drivers impaired by alcohol or drugs pose a threat to public safety and

welfare, and that the suspension of driving privileges represents an appropriate means

to deter and remove these problem drivers from the highway.” (internal quotation marks

and citation omitted)).

The fact that the clerk of the common pleas court is given only ten days to report

the violation reflects a clear legislative intent that suspensions should occur soon after

the conviction. Unfortunately, though, the General Assembly did not specify what

should occur vis-à-vis the driver’s operating privileges when the report is sent beyond

the ten-day period. We believe it would be inconsistent with legislative intent to read the

statute to suggest that such a report cannot be acted upon by PennDOT. A holding

along those lines would allow license suspensions to be thwarted due to administrative

failures, including minor ones such as the sending of the report one day late. Notably,

even Appellee does not suggest such a result would have been intended by the

Legislature. Cf. Samdahl v. Dep’t of Transp. Dir., 518 N.W.2d 714, 717 (N.D. 1994)

(suggesting “an absurd result” would follow if an intoxicated driver’s privileges could not

be suspended solely because the notice of such suspension was provided beyond the

[J-7-2020] - 10 statutory period). Given the importance of roadway safety to the traveling public, if this

is indeed the General Assembly’s intent, it will need to so state in more explicit terms.

In light of the above, we read the relevant statutory provisions as requiring

license suspensions notwithstanding administrative lapses. This leaves open multiple

questions: whether there is any avenue of relief for a driver who receives, after an

unreasonable delay, notice that his or her operating privileges are being suspended; if

so, whether the availability of such relief depends on which government entity is

responsible for the delay – PennDOT or the common pleas court; and whether the

driver must demonstrate any additional factors beyond the delay to obtain relief.

A. Due process

As to the first question, although we have concluded that there is no statutory

basis for relief, restrictions imposed by the Constitution can limit whether otherwise-valid

legislation may be applied in specific circumstances. See Ladd v. Real Estate Comm’n,

___ Pa. ___, ___, 230 A.3d 1096, 1111 (2020). See generally Commonwealth ex rel.

Corbett v. Griffin, 596 Pa. 549, 560, 946 A.2d 668, 675 (2008) (explaining that the

General Assembly establishes public policy “which this Court enforces subject to

constitutional limitations” (citing Program Admin. Servs., Inc. v. Dauphin Cty. Gen.

Auth., 593 Pa. 184, 192, 928 A.2d 1013, 1017-18 (2007))). Beginning with Gingrich and

continuing with the present case, the Commonwealth Court has begun to refer to due

process as the basis on which a license-suspension appeal may be sustained in an

extraordinary-delay scenario where the delay is not chargeable to PennDOT.6 In

6 Prior to Gingrich, in Smires v. O’Shell, 126 A.3d 383 (Pa. Cmwlth. 2015), a group of licensees filed a mandamus petition directed to the Commonwealth Court’s original jurisdiction, and alleged that their rights under, inter alia, the Due Process Clause, were violated when the clerk of courts reported their convictions to PennDOT five-to-ten years late. The court dismissed the petition, holding that the drivers should instead (continued…) [J-7-2020] - 11 Gingrich, the court did not expressly state it was relying on due process. However, it

noted that the common pleas court considered the ten-year delay to have given rise to a

“patent denial of due process,” Gingrich, 134 A.3d at 530, and it ultimately rested its

decision on the view that a suspension that stale would “los[e] the underlying public

safety purpose and now simply [be] a punitive measure . . . imposed too long after the

fact.” Id. at 535; accord Middaugh, 196 A.3d at 1083 (characterizing Gingrich’s holding

as being grounded on an “implicit . . . due process consideration”). As such, the court’s

reasoning implicated a rational-basis inquiry. The Middaugh decision made the due

process rationale express. See Middaugh, 196 A.3d at 1087 (indicating that the

standard developed in Gingrich and applied in the present case sought to balance the

legislative goal of removing unsafe drivers from the roads with the constitutional

mandate to afford due process in the context of an extraordinary delay). Accord Brief

for Appellee at 2 (arguing that “due process considerations are applicable in driver

license suspension cases”).

The United States Supreme Court endorsed this type of means-ends

assessment for purposes of the Fourteenth Amendment’s Due Process Clause in

Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505 (1934).7 The Court explained that

state laws may not be “unreasonable, arbitrary, or capricious,” and that “the means

selected [to achieve a valid governmental objective] shall have a real and substantial

relation to the object sought to be attained.” Id. at 525, 54 S. Ct. at 511. In more recent

years, this Court has viewed such concepts as also pertaining within the Pennsylvania

(…continued) have filed statutory appeals. See id. at 394. Hence, in that matter the court did not reach the merits of the drivers’ due process contention.

7That provision indicates that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, §1.

[J-7-2020] - 12 Constitution’s due process guarantee, which in turn has been identified as stemming

from Article I, Section 1.8 See, e.g., Nixon v. Commonwealth, 576 Pa. 385, 404, 839

A.2d 277, 290 (2003); Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634,

637 (1954). This is, in essence, the rational-basis standard prevailing under the rubric

of substantive due process. See Shoul v. PennDOT, 643 Pa. 302, 320, 173 A.3d 669,

679-80 (2017); see also id. at 314-17, 173 A.3d at 676-78 (reviewing substantive due

process precepts as applied by this Court). But see id. at 333-43, 173 A.3d at 688-94

(Wecht, J., concurring) (offering a developed critique of the continued use of substantive

due process to invalidate legislative provisions).9

In outlier situations – that is, situations that depart substantially from the ordinary

and expected application of a law – due process norms can be invoked to restrain

enforcement of a law under the circumstances where it appears that the targeting of the

particular person or entity in question will do little to achieve the evident legislative

objective. In Ladd, for example, this Court preliminarily enjoined the application of a law

regulating real-estate brokerage businesses to a person whose activities were limited to

managing several short-term vacation rental properties. The Ladd Court noted that the

individual’s claim sounded in substantive due process. As explained, under that

standard the right infringed by the law is weighed against the interest sought to be

8 See PA. CONST. art. I, §1 (“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”).

9 The rational-basis inquiry under the state Constitution is implicated for rights which are not considered fundamental, and it is more exacting than the rational-basis test under the federal Constitution. See Ladd, ___ Pa. at ___ & n.14, 230 A.3d at 1108 & n.14. Where fundamental rights are impacted, courts apply strict scrutiny. See D.P. v. G.J.P., 636 Pa. 574, 585, 146 A.3d 204, 210 (2016).

[J-7-2020] - 13 achieved by its application. See Ladd, ___ Pa. at ___, 230 A.3d at 1108; see also

Bucks Cty. Servs., Inc. v. Phila. Parking Auth., 649 Pa. 96, 116-17, 195 A.3d 218, 231

(2018) (stating that, in addition to asking whether a challenged statute seeks to achieve

a valid state objective by means rationally related to it, “a substantive due process

analysis requires courts to balance the rights of the individuals subject to the regulation

against the public interest” (citation omitted)). This Court ultimately concluded that Ms.

Ladd’s claim raised a colorable argument that the law’s requirements were

unconstitutional as applied to her because, in her specific context, its application would

be “unreasonable, unduly oppressive, and patently beyond the necessities of the case,

thus outweighing the government’s legitimate policy objective.” Ladd, ___ Pa. at ___,

230 A.3d at 1111 (citing Gambone, 375 Pa. at 551, 101 A.2d at 637).10

Relatedly, due process incorporates the concept that the government must treat

individuals with basic fairness. See, e.g., N.C. Dep’t of Revenue v. The Kimberley Rice

Kaestner 1992 Family Trust, ___ U.S. ___, ___, 139 S. Ct. 2213, 2219 (2019)

(explaining the Fourteenth Amendment’s Due Process Clause is centrally concerned

with the fundamental fairness of governmental activity); Pennsylvania v. Finley, 481

U.S. 551, 557, 107 S. Ct. 1990, 1994 (1987) (referring to “the fundamental fairness

mandated by the Due Process Clause”); Rogers v. Tennessee, 532 U.S. 451, 462, 121

10 This Court has referred to substantive due process in other situations where the government’s delay in the particular case, rather than the facial validity of a statute, was alleged to have violated individual rights. See State Dental Council v. Pollock, 457 Pa. 264, 274, 318 A.2d 910, 916 (1974) (recognizing that an unreasonable delay in the suspension of a dental license, combined with demonstrable harm from the delay, can deny the practitioner due process); Commonwealth v. West, 595 Pa. 483, 492, 938 A.2d 1034, 1040 (2007) (observing that Pennsylvania courts have applied a test derived from Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), when determining whether lengthy delays in criminal cases, such as pre-trial delays or sentencing delays, amount to due process violations).

[J-7-2020] - 14 S. Ct. 1693, 1700 (2001). Like the requirement of a means-end correspondence, this

fairness mandate is a facet of “substantive” due process. See Perry v. New Hampshire,

565 U.S. 228, 249, 132 S. Ct. 716, 730 (2012) (Thomas, J., concurring) (citing cases).

See generally Timothy Sandefur, In Defense of Substantive Due Process, or the

Promise of Lawful Rule, 35 HARV. J. LAW & PUB. POL’Y 283, 307 (arguing that the “of

law” portion of the phrase “due process of law” was historically understood to

encompass a requirement that laws and their implementation must “accord basic

fairness and equality” to all individuals).

We find that appeals of license suspensions based on the staleness of the

underlying conviction bear some parallels to litigation in which other recognized, but

non-fundamental, rights are at stake – such as the right to engage in lawful employment

at issue in Ladd: as in Ladd, such appeals involve as-applied challenges to

presumptively valid statutory provisions; the regulation under review affects the

continued possession of an important, constitutionally-protected interest;11 and where

the suspension is delayed for an extraordinary period of time, the staleness of the

predicate conviction tends to diminish the connection between the suspension and the

statute’s objectives, particularly where there have been no Vehicle Code violations in

the interim. See generally Sec’y of Revenue v. John’s Vending Corp., 453 Pa. 488,

493, 309 A.2d 358, 361-62 (1973) (observing that remote convictions have little value in

assessing a person’s present character or likely future conduct). Separately, it would be

11 See Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589 (1971) (noting that the ability to drive an automobile constitutes a protected interest whether the state refers to it as a right or a privilege); see also id. (recognizing that the continued possession of driving privileges may be essential to the pursuit of one’s livelihood); accord Bragg v. Dir., Div. of Motor Vehicles, 690 A.2d 571, 573 (N.H. 1997); People v. Fisher, 705 N.E.2d 67, 77 (Ill. 1998) (observing that “drivers have a strong interest in the continued possession of their drivers’ licenses”).

[J-7-2020] - 15 difficult to contend that fundamental-fairness concerns can never be implicated

regardless of how long the government waits to suspend a licensee’s privileges in a

particular case.12

In light of the foregoing, we ultimately agree with the Gingrich/Middaugh line of

Commonwealth Court decisions to the extent it suggests that a license suspension

which is unreasonably delayed through no fault of the driver’s can potentially result in a

denial of due process.

B. Government entity at fault

We now turn to second question mentioned above: whether the availability of

relief can be made to depend on which governmental entity – PennDOT or the clerk of

the common pleas court – is at fault for the delay. With regard to the Commonwealth

Court’s decisions in which that distinction was made, such as Green and Pokoy, see

supra note 4, Appellee argues those cases

can be considered somewhat counter-intuitive in that, from the perspective of the motorist who has been prejudiced by a delay, it makes little difference which government entity . . . is responsible for it. Indeed, in suffering through an untimely suspension following a change in personal

12 Other states have also found that due process may be violated where a licensee’s driving privileges are suspended after an unreasonable delay. See, e.g., Hipp v. Dep’t of Motor Vehicles, 673 S.E.2d 416 (S.C. 2009); Miller v. Moredock, 726 S.E.2d 34 (W. Va. 2011). In Hipp, the South Carolina court determined that allowing a suspension twelve years after the predicate conviction would violate due process by denying the driver fundamental fairness. See Hipp, 673 S.E.2d at 417. And in Miller, the West Virginia court held that a 17-month delay could give rise to a due process violation if prejudice were to be demonstrated on remand. See Miller, 726 S.E.2d at 41. In both matters, like here, the delay was not the fault of either the driver or the state department of motor vehicles. But cf. Alvarez v. Div. of Motor Vehicles, 249 P.3d 286 (Alaska 2011) (finding that a two-and-a-half year delay did not violate procedural due process as required by Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976)).

[J-7-2020] - 16 circumstances, a motorist such as [Appellee] is not likely to even know or care about the actual source of his or her predicament. Brief for Appellee at 3-4. Thus, Appellee maintains that the intermediate court’s

decisions in Gingrich and the present controversy appropriately recognized that, where

a delay is so long as to result in prejudice, the driver is entitled to relief although

PennDOT is not at fault. See id. at 5.

For its part, PennDOT criticizes the Gingrich court for having departed from the

Commonwealth Court’s previous rule that a suspension may only be invalidated where

PennDOT is at fault for the delay. Somewhat inconsistently, PennDOT also notes it

elected not to challenge the decision at the time because the delay involved was “too

lengthy, regardless of who was at fault[.]” Brief for PennDOT at 14. In all events,

PennDOT seeks to distinguish Gingrich on the basis that the delay involved in the

present dispute was shorter than the amount of time Ms. Gingrich waited to receive her

suspension notice. In making this distinction, PennDOT additionally takes issue with

the Middaugh court’s bright-line rule that any delay less than or equal to the sum of the

suspension period plus the ten-day reporting period is reasonable as a matter of law.

See id. at 15.13

To the extent a delayed notice of suspension is alleged to violate the driver’s due

process rights, nothing in the above analysis, or in the parties’ advocacy, suggests that

such allegation may only have merit where the delay is chargeable to PennDOT rather

13 PennDOT appears to misapprehend the rule as stating that a delay greater than that period of time is per se unreasonable. See id. at 16 (“[N]owhere in its Middaugh decision does the Commonwealth Court explain why a delay of one year and ten days is permissible, but a delay of one year and eleven days is not.”).

As for PennDOT’s efforts to distinguish Gingrich, we note that they are unnecessary. Neither PennDOT nor this Court has previously endorsed the holding in Gingrich, and PennDOT was not under any obligation to seek further review in that matter on pain of waiving its subsequent ability to argue that Gingrich was wrongly decided.

[J-7-2020] - 17 than some other facet of the government. The focus here is on whether relief is due

based on an alleged violation of the driver’s rights; and as Appellee correctly observes,

as far as the driver is concerned the mechanism by which inter-agency communication

takes place – ultimately resulting in a notice of suspension – is internal to the

government and of little relevance to those rights, so long as the driver is not at fault for

the delay. It follows that the locus of a breakdown in that mechanism is also immaterial

to an evaluation of whether the driver’s rights have been impacted.

Accordingly, we conclude that a claim that a license suspension imposed after an

unreasonable delay violates the driver’s due process rights stands on the same footing

regardless of whether the delay is chargeable to PennDOT or the clerk of the common

pleas court.

C. Interim driving record

With that said, in view of the important governmental interests advanced by the

statutory license-suspension provisions, in assessing whether relief is due courts should

take into account the driver’s violations (if any) during the course of the delay. If it

appears the driver remains a danger to the public, it will be difficult to argue that the

suspension fails to satisfy the means-end requirement – i.e., that due process is

offended on the basis that there is little connection between a suspension of privileges

and the legislative goal of protecting the public. For present purposes, we need not set

forth a per se rule that any moving violation is fatal to a due process claim regardless of

its nature, age, or severity – as here it is undisputed that Appellee had no further

violations, and hence, this factor does not detract from his entitlement to relief under a

due process theory. We note, however, that the severity of the predicate offense, and

the severity and age any further violations, are relevant to the inquiry.

[J-7-2020] - 18 D. Prejudice

We also agree with Commonwealth Court and extra-jurisdictional decisions

which have imposed a requirement that the driver demonstrate he or she suffered

prejudice from the delay. See Rea v. PennDOT, 132 Pa. Cmwlth. 145, 150-51, 572

A.2d 236, 238 (1990); Miller, 726 S.E.2d at 39, 40 (stating that actual prejudice from the

delay must be demonstrated and then balanced against the reasons for the delay); In re

Garber, 357 A.2d 297, 299 (N.J. Super. Ct. App. Div. 1976) (holding that prejudice must

be proved as a prerequisite to relief from a delayed suspension); cf. Dubbelde v. Dep’t

of Transp., 324 P.3d 820, 826 (Wyo. 2014) (indicating that a driver could not establish a

violation of procedural due process without demonstrating prejudice from a one-year

administrative delay, as there was no reason to believe a different outcome would have

been reached absent the delay). Of particular salience is the Iowa Supreme Court’s

explanation that the “mere passage of time in and of itself” does not violate the driver’s

substantive rights. McFee v. Dep’t of Transp., 400 N.W.2d 578, 581 (Iowa 1987). The

court continued that, to hold that a long delay alone is grounds for relief “would promote

the dangerous driver’s rights over those of the general public and would frustrate the

legislature’s strongly established goal of removing dangerous drivers from the

highways.” Id.

This precept, however, is subject to a limiting principle whereby an extreme delay

such as ten or twelve years may be viewed as per se prejudicial. Thus, the South

Carolina Supreme Court in Hipp determined that allowing a suspension twelve years

after the underlying conviction would in itself violate due process by denying the driver

fundamental fairness. See Hipp, 673 S.E.2d at 417. Finally, the prejudice must be

occasioned by the delay and not by the suspension alone – which, while perhaps

prejudicial in itself, is an ordinary part of the governing statutory framework. See

[J-7-2020] - 19 generally Reitz v. Mealey, 314 U.S. 33, 36, 62 S. Ct. 24, 26-27 (1941) (recognizing that

states are permitted to enforce licensing regulations aimed at promoting public safety),

overruled on other grounds by Perez v. Campbell, 402 U.S. 637, 651-52, 91 S. Ct.

1704, 1712 (1971).14

IV.

Applying the above precepts, we believe that upon a showing of prejudice, the

approximately 28-month delay in this case can appropriately be viewed as denying

Appellee his due process rights. Although this is not as long as the delays that have

occurred in some of the other matters discussed above, it seems to us objectively

unreasonable for a driver to have to wait nearly two and a half years for administrative

action that is expected to occur within approximately two months – and would occur

during that timeframe where the governmental entities involved are functioning

competently, as citizens have a right to expect them to do.

The question becomes, then, whether Appellee demonstrated prejudice in the

common pleas court. As detailed above, his credited testimony established that he was

expecting his license to be suspended within the ordinary timeframe and, as such, he

postponed purchasing a vehicle to replace the one which had been “totaled” in an

accident. Further, had his privileges been suspended in a timely manner, his wife could

have helped him travel to and from doctor’s appointments. By the time his suspension

notice arrived, however, he was divorced, his income was insufficient to pay for rides,

14We recognize that Terraciano spoke in terms of affording “equitable relief” where an unreasonable delay caused a licensee to believe that her operating privileges would not be suspended. Terraciano, 562 Pa at 66, 753 A.2d at 237. However, we find the Commonwealth Court’s present invocation of due process and fundamental fairness to be more apt for the reasons given.

[J-7-2020] - 20 and no friend or relative was available to provide transportation. Further, his medical

condition had worsened and he was now treating with multiple doctors.

Under these facts, we conclude that the trial court’s finding – that Appellee would

suffer prejudice if the suspension were to be imposed at this juncture – is supported by

competent evidence of record, and moreover, it demonstrates that prejudice would

follow from the fact of the delay itself. Additionally, there is no dispute that Appellee did

not accrue any additional Vehicle Code violations after his predicate DUI conviction.

We therefore agree with the Commonwealth Court majority that a suspension at this

late date will have lost much of its effectiveness with regard to its underlying legislative

purposes, result in prejudice which can be attributed to the delay, and ultimately deny

fundamental fairness.

V.

Accordingly, the order of the Commonwealth Court is affirmed.

Justices Baer, Donohue and Dougherty join the opinion.

Justice Wecht files a concurring and dissenting opinion in which Justice Todd joins.

Justice Mundy files a dissenting opinion.

[J-7-2020] - 21