Orloff v. Com.

• Decision Date: 18 December 2006
• Parties: Howard ORLOFF, Appellant v. COMMONWEALTH of Pennsylvania, Department of Transportation, Bureau of Driver Licensing.
• Court: Pennsylvania Commonwealth Court

912 A.2d 918

Howard ORLOFF, Appellant v. COMMONWEALTH of Pennsylvania, Department of Transportation, Bureau of Driver Licensing.

Commonwealth Court of Pennsylvania.

Argued November 15, 2006.

Decided December 18, 2006.

H. Allen Litt, Philadelphia, for appellant.

Timothy P. Wile, Asst. Counsel In-Charge, Harrisburg, for appellee.

BEFORE: SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and FRIEDMAN, Judge, and LEADBETTER, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge PELLEGRINI.

Howard Orloff (Licensee) appeals from an order of the Court of Common Pleas of Delaware County (trial court) denying his appeal and reinstating a one-year license suspension of his driving privilege because he failed to establish that he was prejudiced by a delay in the proceedings related to the suspension of his driving privilege that was chargeable to the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT).

On July 19, 1997, Licensee was arrested in New Jersey and charged with violating New Jersey's statute against driving under the influence.¹ Following a trial, he was convicted, and New Jersey sent Pennsylvania a notice of the conviction. PennDOT then sent Licensee an official notice dated October 3, 1997, informing him that his operating privilege was being suspended for one year pursuant to Section 3731 of the Vehicle Code, as amended, 75 Pa.C.S. § 3731,² and the Driver's License Compact (Compact), 75 Pa.C.S. § 1581,³ as a result of his New Jersey conviction.⁴ Licensee filed a timely appeal.

A hearing was held before the late Judge Joseph F. Battle, and on June 30, 1998, Judge Battle entered an order granting Licensee's appeal and reversing the suspension. PennDOT appealed to this Court and by order dated July 7, 1998, Judge Battle consolidated Licensee's case with 30 other suspension appeal cases upon which he had already rendered decisions and from which PennDOT had appealed to this Court. The issue on appeal in all of the cases was whether PennDOT had sustained its burden of establishing the basis for the suspension of the licensees' operating privileges by introducing into evidence copies of electronic transmissions from New Jersey which reported the convictions to that state. The licensees contended that the reports failed to comply with the requirements of Article III of the Compact⁵ because they did not contain all of the required information. In 27 of those cases, including Licensee's, we granted PennDOT's appeal, and by order dated September 15, 1999,⁶ we reversed in part, affirmed in part and remanded the cases to the trial court for consideration of the issue, where such issue was previously raised, of whether the reporting requirements of Article III of the Compact were met, as articulated in our decision in Sweet v. Department of Transportation, Bureau of Driver Licensing, 724 A.2d 1004 (Pa. Cmwlth.1999). (See PennDOT's Brief at 5).

Following remand to the trial court, Judge Battle died on March 10, 2001. No further action was taken by the trial court to comply with our remand order until PennDOT sent the trial court a letter dated September 7, 2004, requesting that the cases be listed for hearings. A hearing was held on February 15, 2005, on the issue raised in the remand order as well as on Licensee's contention that his appeal should be granted because he was prejudiced by the unreasonable delay in prosecuting the enforcement of the suspension of his operating privilege.

Before the trial court, Licensee testified that September 1999 was the last time he had heard that his appeal was still pending, that he thought Judge Battle had ruled in his favor, and that he neither checked his driving privilege status with PennDOT nor received notification that the case was over. He stated that he currently owned and operated a wire manufacturing company that he purchased in 1993 and paid off in 2001. Licensee stated that he ran the company office in 1999 and had other persons making sales calls and deliveries, but he now drove the company truck Mondays through Fridays to make sales calls, interspersed with deliveries. He stated that including himself, he employed five people — two who ran machines in the factory and did production, one who ran the office, and another who was the previous owner who resided in Florida but remained on the payroll. He testified that if his license was suspended, he would be required to hire a delivery driver and a less effective salesman which could lead to excess inventory and would increase his payroll. Licensee stated that had he known his driving privilege could be suspended, he would not have gone out on the road in 2001; would not have arranged for a $200,000 line of credit; would not have moved to a far more expensive residence in 2003; would not have entered a lease for an expensive car; and would not have paid a two-year membership to a gym that was not located near public transportation. He also testified that he provided transportation for his mother, and if his license had been promptly suspended, she would not have been adversely affected because she was healthier and able to drive at that time.

By order dated December 29, 2005, the trial court attributed the delay in prosecuting Licensee's appeal of his operating privilege to PennDOT. However, it found that Licensee failed to establish the requisite prejudice resulting from the delay and denied his appeal and reinstated the suspension of his operating privilege. Licensee then filed the present appeal⁷ contending that the trial court erred in concluding that he had not suffered prejudice as a result of PennDOT's unreasonable delay in prosecuting the appeal.

For a licensee to sustain an appeal of a license suspension based upon delay, he must prove: (1) an unreasonable delay chargeable to PennDOT led the licensee to believe that his operating privilege would not be impaired; and (2) prejudice would result by having his operating privilege suspended after such delay. Fisher v. Department of Transportation, Bureau of Driver Licensing, 682 A.2d 1353 (Pa.Cmwlth.1996). What constitutes an unreasonable delay will depend upon the circumstances of each individual case. Lancos v. Department of Transportation, Bureau of Driver Licensing, 689 A.2d 342, 344 (Pa.Cmwlth.1997). An administrative delay may be held against PennDOT for purposes of determining whether there was an unreasonable delay. Ciaccia v. Department of Transportation, Bureau of Driver Licensing, 782 A.2d 639 (Pa. Cmwlth.2001). Where there is an unreasonable delay, it is PennDOT's burden to prove that the delay was caused by some factor other than mere administrative inaction. Grover v. Department of Transportation, Bureau of Driver Licensing, 734 A.2d 941 (Pa.Cmwlth.1999).

Admitting that the five-year delay in this case was unreasonable, PennDOT counters by contending that Licensee did not meet either prong of his burden. It argues that the trial court was responsible for the delay by not reassigning the case to another judge,⁸ and judicial delay may not be attributable to it when determining whether there was an unreasonable delay. Because there is no need to address Licensee's argument if the delay is not properly chargeable to PennDOT, we will address that issue first.

To whom the delay is chargeable after a license suspension case has been remanded after appeal was addressed by our Supreme Court in Terraciano v. Department of Transportation, Bureau of Driver Licensing, 562 Pa. 60, 753 A.2d 233 (2000). In that case, following the trial court's sustaining of a licensee's appeal of a license suspension, PennDOT appealed to this Court. We reversed and remanded the matter to the trial court for a new hearing, and the matter then lay dormant for seven years before it was reactivated. The licensee contended that his appeal should be sustained because of the unreasonable delay in hearing the case after remand, causing him prejudice. Finding that the delay was not chargeable to PennDOT, the trial court reimposed a one-year license suspension. We affirmed but our Supreme Court, however, reversed, holding that the delay was chargeable to PennDOT, explaining:

The rule that judicial delay may not be attributable to PennDOT in license suspension matters, however, stems from the underlying principle that PennDOT is unable to suspend a driver's license until it receives a certified record from the court system that the licensee has been convicted of an offense for which a suspension may be imposed. Walsh v. Department of Transp., 137 Pa.Cmwlth. 549, 586 A.2d 1034, 1036-37 (1991). Such a situation differs markedly from an appeal from a suspension matter, because the conviction or event for which a suspension may be imposed has already been established. See id. at 1037. Thus, despite PennDOT's assertions to the contrary, the judicial delay rule is simply not applicable here. Rather, as discussed above, the delay in the instant case resulted from the laxity of PennDOT, an active party in the appeal proceedings, in allowing this case to languish for seven years.

Id. at 237 n. 9.

PennDOT contends that this case is much different than what occurred in Terraciano because that case was remanded for further evidentiary proceedings, while, in this case, it was only remanded for consideration of a legal issue. In effect, PennDOT is proposing that under Terraciano, where a case is remanded for a hearing, the delay is chargeable to PennDOT; however, if no hearing is required, then it is chargeable as a judicial delay and not chargeable to PennDOT. Following PennDOT's reasoning to its logical conclusion would expand Terraciano's holding to make PennDOT responsible for any delay where a hearing is required, including the original appeal, because PennDOT, as an active party to the case, is charged "with a duty to keep abreast of all developments in the appeal process." Terraciano, 753 A.2d at 236 (quo...