The opinion of the court was delivered by: P. Kevin Brobson, Judge
AND NOW, this 11th day of March, 2011, upon consideration of the Appellant's Application to Report Unreported Opinion said Application is granted. It is hereby ordered that the opinion filed January 12, 2011 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Cesare : v. Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : Appellant :
Submitted: August 20, 2010
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
Appellant Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department), appeals from the March 16, 2010, order of the Court of Common Pleas of Westmoreland County (trial court), sustaining the statutory appeal of Appellee Anthony Cesare (Licensee) and reinstating Licensee's vehicle operating privilege. We reverse.
The pertinent facts in this case center around Licensee's violation of Section 1543(b) of the Vehicle Code,*fn1 (relating to driving while operating privilege is suspended or revoked) that occurred on September 2, 1998, and his subsequent conviction on November 24, 1998. (Reproduced Record (R.R.) at 136a.) On September 2, 1998, Licensee was arrested for a violation of Section 1543(b) of the Vehicle Code for driving while his operating privileges were suspended. The following day, on September 3, 1998, Licensee was again arrested for violating Section 1543(b). On November 24, 1998, Licensee was convicted of both violations. By official notices with "mail dates" of December 16, 1998, and January 14, 1999, the Department imposed two separate two-year "add-on" revocations of Licensee's operating privilege, one for the September 2, 1998 violation and one for the September 3, 1998 violation, in accordance with Section 1543(c)(2) of the Vehicle Code.*fn2 (Id.) Licensee filed a timely statutory appeal of the revocation imposed as a result of his conviction for the September 2, 1998 violation.*fn3 (Id. at 117a.)
During this same time period, Licensee appealed the underlying conviction for the September 2, 1998 violation to the Superior Court, which ultimately affirmed the trial court's conviction. Thereafter, in June 2002, Licensee withdrew his appeal of the Department's license revocation relating to the September 2, 1998 violation, and the Department reimposed the revocation, effective October 3, 2002. (Id. at 138a.) Without consulting his attorney, Licensee filed an untimely statutory appeal of the reimposed revocation. (Id.) After consulting with his attorney, Licensee withdrew his appeal, and the trial court issued an order, dated February 14, 2003, and mailed February 24, 2003, indicating that the appeal was withdrawn. (Id. at 177a).
The Department received notification from the trial court on February 28, 2003, by way of the order, that the appeal was withdrawn. (Id.).
The Department took no further action relating to the September 2, 1998 violation until August 10, 2006, almost forty-two months later, when it reimposed the two-year revocation, effective July 7, 2008.*fn4 (Id. at 139a.) Licensee again appealed to the trial court, which conducted a de novo hearing. (Id. at 169a.)
At the hearing, Licensee argued that the Department's almost forty-two-month delay in reimposing the revocation constituted unreasonable delay on the part of the Department, and that Licensee, a self-employed businessman, was prejudiced by the delay. As to the issue of prejudice, Licensee took the position that following his withdrawal of the appeal in February 2003, he expected the Department to reimpose the two-year revocation related to the September 2, 1998 violation. In anticipation of an additional two-year revocation, Licensee took steps to sell his water treatment systems business because he believed that it would be difficult to continue to work for this business if he were unable to drive for that length of time. As time passed, he began to believe that the Department may not reimpose the revocation. During that same time period, the Department unexpectedly reinstated Licensee's operating privileges for a short period of time. Due to his belief that his license may not be revoked as a result of the September 2, 1998 violation, Licensee abandoned his plans to sell his business. When ...