MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: May 4, 2016

Licensee Mark Richard Needham appeals from an order of the Court of Common Pleas of Erie County denying his statutory appeal and reinstating the following operating-privilege suspensions imposed by the Department of Transportation, Bureau of Driving Licensing: (1) one-year suspension for conviction of Section 3802(b) of the Vehicle Code (Code), 75 Pa. C.S. § 3802(b) (driving under the influence/high rate of blood alcohol); and (2) fifteen-day add-on suspension for conviction of Section 3362 of the Code, 75 Pa. C.S. § 3362 took no action to advise the Department that the appeal process had ended, i.e., the criminal case had come to a conclusion and the February 2010 supersedeas order was no longer in effect. After the Department conducted an administrative review of its outstanding cases, Licensee’s license suspension notices came to its attention. Consequently, in December 2014, the Department once again issued two notices of civil license suspensions based on Licensee’s aforementioned convictions. This time, however, the notices of suspension did not contain appeal provisions.4 Accordingly, when Licensee filed an appeal of the suspensions with common pleas in January 2015, the court issued a rule to show cause on the Department to establish why the appeal should not be granted and issued a stay of the suspensions pending a hearing. In response, the Department restored Licensee’s operating privilege pending appeal.^[5] Following a hearing and submission of legal memoranda, common pleas upheld the suspensions. Specifically, it determined that Licensee, who was the party who requested supersedeas in the criminal division, was the moving party

4 At the April 2015 hearing before common pleas, the Department stated that a licensee normally does not have the right to appeal the reinstatement of a suspension. See Nagelberg v. Dep’t of Transp., 543 A.2d 634, 635 (Pa. Cmwlth. 1988) (holding that, where common pleas dismissed licensee’s appeal, thereby resulting in a final determination, it correctly quashed his attempted second appeal taken over a year later) and Rinck v. Commonwealth, 429 A.2d 1255, 1256 (Pa. Cmwlth. 1981) (holding that a licensee who withdraws the appeal of his license suspension cannot later appeal the reinstatement of that suspension). Here, however, the licensee alleged undue delay in reinstating the suspensions and, therefore, Rinck is inapplicable. See Davis v. Dep’t of Transp., 552 A.2d 338, 340 (Pa. Cmwlth. 1988) (holding that, “where one who withdrew the appeal from his suspension seeks review, not of the merits of the suspension, but to the delay in reinstating it, Rinck is inapplicable”).

for purposes of any civil license suspension proceedings and, therefore, he was responsible for moving any appeals of his civil license suspensions forward. In so ruling, the court rejected Licensee’s argument that the delay in imposing the suspensions should be attributed to the Department both by virtue of its decision to honor the supersedeas and its subsequent administrative review of outstanding license suspension cases. The court further observed that the Department was not a party to the underlying criminal case and thus would not have received notice that the Supreme Court had denied Licensee’s petition for allowance of appeal. Licensee’s timely appeal to this Court followed. In order to sustain an appeal of a license suspension based on delay, a licensee must establish that: (1) an unreasonable delay chargeable 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. Terraciano v. Dep’t of Transp., Bureau of Driver Licensing, 753 A.2d 233, 236 (Pa. 2000). Once a licensee raises the delay defense, the Department 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). If 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. Further, in determining attribution of delay, our Supreme Court has previously identified the moving party and accorded it the burden of moving a case forward. In Terraciano, the Court attributed the delay to the Department due to its failure to pursue the licensee’s license suspension for seven years following the Department’s appeal to Commonwealth Court and our subsequent reversal and remand to common pleas. In so concluding, the Supreme Court determined as follows: “When PennDOT fails to take responsibility for moving a case forward under circumstances where it is reasonable for it to be expected to do so, the delay is attributable to PennDOT.” Terraciano, 753 A.2d at 236 (emphasis added). On the other hand, in Department of Transportation, Bureau of Driver Licensing v. Gombocz, 909 A.2d 798, 802 (Pa. 2006), the Court ultimately attributed the delay to the licensee, who filed the initial appeal. There, the question of attribution arose only when the Department moved to have the case transferred to another county as required by statute. In attributing the delay to the licensee, the Court reasoned that, despite the Department’s motion to transfer being granted, the licensee had not only acknowledged the transfer but also made an effort to obtain a de novo hearing. The Court concluded, therefore, that the licensee “acknowledged his position as moving party by attempting to schedule a hearing, and although his efforts failed, it was by no fault of PennDOT.” Id. at 802. Mindful of its conclusion in Terraciano that the delay in that case was attributable to the Department’s inaction, the Court in Gombocz observed the “inverse” conclusion, “for where the other party is reasonably expected to move things forward, attribution will follow as well[,]” 909 A.2d at 801 (emphasis added). Accordingly, the Court attributed the delay in Gombocz to the licensee, who had the burden to move the case forward and failed to do so. Here, we conclude that the inverse situation envisioned by the Court in Gombocz is once again present and that Licensee failed to establish that the delay following the Court’s denial of his petition for allowance of appeal should be chargeable to the Department. As common pleas determined, Licensee both sought and procured a supersedeas of the civil license suspensions in the criminal case rather than following the statutory procedure to appeal the suspension; thereafter, Licensee also failed to advise the Department that there was no longer an impediment to moving forward with the civil license suspension action. The mere fact that the Department kept track of “Old Open Statutory Appeal Cases” and issued a memo to its staff regarding those outstanding cases was insufficient to cause delay to be attributed to the Department. As that portion of the Department’s memo regarding Licensee indicated: “[T]his case was never treated as a license suspension appeal by the civil trial court. The case should be closed out . . . .”6 Further, the fact that the Department abided by common pleas’ supersedeas order in the underlying criminal case is insufficient ground to charge the Department with the ensuing delay. It was Licensee’s former attorney who filed a motion in the underlying criminal case requesting a supersedeas of the civil license suspensions, thereby assuming the burden to advance the civil case at the conclusion of the criminal matter.^[7] Accordingly, the situation in the present case is analogous to that in Gombocz, where the Supreme Court determined that the licensee was the moving party and that the delay was thus not attributable to the Department.

Accordingly, we affirm.^[8]

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Richard Needham, : Appellant : : v. : No. 1110 C.D. 2015 : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

ORDER

AND NOW, this 4th day of May, 2016, the order of the Court of Common Pleas of Erie County is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge