MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: September 28, 2016

Cole M. Viani appeals an order of the Court of Common Pleas of York County (trial court) dismissing his appeal and reinstating a two-year suspension of his operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing (PennDOT) pursuant to Section 1532(c) of the Vehicle Code, 75 Pa. C.S. §1532(c). Because additional factual findings are needed to determine whether Viani qualifies for relief under this Court’s recent decision in Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528 (Pa. Cmwlth. 2016), we vacate and remand for further proceedings. On August 6, 2008, Viani was convicted in York County for violating Section 13(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), 35 P.S. §780-113(a)(16) (relating to possession of a controlled or

counterfeit substance).1 Six years later, on August 15, 2014, PennDOT notified Viani that his operating privilege was being suspended for two years effective September 26, 2014, in accordance with Section 1532(c) of the Vehicle Code, 75 Pa. C.S. §1532(c),2 as a consequence of his 2008 drug conviction. Viani appealed the suspension to the trial court. On appeal to the trial court, Viani’s case and twenty-two others with similar delays were consolidated for disposition. At a hearing on March 25, 2015, counsel for the licensees offered to introduce testimony from each licensee regarding the prejudice they experienced due to the delayed suspension notices. Instead of hearing individual testimony from each licensee, the court asked PennDOT’s counsel to “accept … that if all these people were called to testify, they would indeed offer their opinion that they have been prejudiced by the delay ….” R.R. 46. PennDOT’s counsel did not so stipulate. Nevertheless, the trial court accepted the statement of licensees’ counsel and assumed prejudice existed as to each licensee. R.R. 49. At the conclusion of the hearing, the trial court deferred its decision on the licensees’ appeals pending this Court’s decision in Smires v. O’Shell, 126 A.3d 383 (Pa. Cmwlth. 2016). On October 23, 2015, this Court rendered its decision in Smires,3 and as a result, the trial court dismissed the licensees’ appeals and reinstated the suspensions. Viani now appeals.4 On appeal,5 Viani argues that the delay in reporting of his conviction to PennDOT violated his right to due process. While the general rule remains that the delay must be attributable to PennDOT to warrant setting aside a license suspension, this Court recently recognized a limited exception to that rule in Gingrich v. Department of Transportation, Bureau of Driver Licensing, 134 A.3d 528, 534 (Pa. Cmwlth. 2016). Under the exception, relief to a licensee may be appropriate upon a showing of the following: (1) a conviction not reported for an extraordinarily extended period of time, (2) a lack of further violations for a significant number of years before the report is finally sent, and (3) prejudice. Id. In Gingrich, the licensee’s conviction was not reported to PennDOT for nearly ten years. Id. at 529.6 She had no further violations for eight years prior to the report being sent to PennDOT. Id. at 529-30. Following her conviction, the licensee obtained a bachelor’s degree, secured employment, and had a child. Id. at 530. She testified that imposing the suspension now would impact her ability to drive her child to school, and would likely result in the loss of her job, which requires her to drive. Id. Because she satisfied the requirements for the narrow exception, we vacated her suspension. The record in the case sub judice is insufficient for this Court to determine whether Viani qualifies for the Gingrich exception. The application of this exception, especially the determination of prejudice to the licensee, is exceedingly factual in nature. The trial court’s acceptance of counsel’s representation that every licensee, including Viani, would testify that he or she was prejudiced is not enough. Accordingly, we vacate and remand for further proceedings to determine whether Viani can demonstrate that he is entitled to relief from the imposition of the two-year license suspension under Gingrich.7

_____________________________________ MARY HANNAH LEAVITT, President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole M. Viani, : Appellant : : v. : No. 2538 C.D. 2015 : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

ORDER

AND NOW, this 28th day of September, 2016, the order of the Court of Common Pleas of York County dated November 10, 2015, in the above- captioned matter is hereby VACATED and the case is REMANDED for further proceedings in accordance with the attached opinion. Jurisdiction relinquished.

_____________________________________ MARY HANNAH LEAVITT, President Judge