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COMMONWEALTH PENNSYLVANIA v. ELROY BYRD (03/02/79)

decided: March 2, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
ELROY BYRD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Somerset County in case of Commonwealth of Pennsylvania v. Elroy Byrd, No. 4 Civil 1977.

COUNSEL

John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Alexander Ogle, with him Ogle, Metz & Policicchio, for appellee.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 41 Pa. Commw. Page 39]

Can the holder of a school bus driver's license, who had previously suffered a myocardial infarction, but

[ 41 Pa. Commw. Page 40]

    who has now been found to be "fully recovered" and physically competent upon medical examination, nevertheless have his school bus operator's certificate suspended by the Bureau of Traffic Safety of the Department of Transportation solely on the basis of a departmental regulation declaring that a history of myocardial infarction alone, absolutely and without exception, disqualifies any person from legally driving a school bus?

The applicable statutory provision is Section 609 of the former Vehicle Code, entitled "Additional Examinations for School Bus Operators."*fn1 That section required that a school bus operator periodically pass a special test re-establishing his "fitness and competency to operate a school bus with safety" and his knowledge of relevant school bus laws and regulations. Section 609 also provided that no person could legally operate a school bus unless he:

(3) has satisfactorily passed a physical examination to be given by the physician for the school district by which he is employed; and (4) carries a certificate issued by the examining physician at the time of examination indicating that he has passed the prescribed physical examination including an examination of the eyes. Such certificate issued by the examining physician

[ 41 Pa. Commw. Page 41]

    shall be valid for a period of one (1) year from the date of its issuance.

No express authorization exists under the 1959 Vehicle Code for the Department to promulgate regulations implementing Section 609 above.*fn2

Here, the Department had sent appellee Byrd notice of the impending October 31, 1976 expiration of his school bus operator's certificate. Following instructions in that notice, Byrd successfully completed a competency examination, administered by the state police, and also submitted to Dr. Tenusan, a board eligible physician with a specialty in cardiology and Byrd's treating physician, a physical examination report which Dr. Tenusan completed August 16, 1976. On that report, the physician noted the occurrence of Byrd's previous myocardial infarction and added that he was presently "fully recovered" and physically qualified. The Department ordered Byrd to be recertified September 24, 1976.

In December of 1976, the department then sent Byrd a "Cardiovascular Form" which requested extensive medical data and opinions of the treating physician as to whether the patient's condition prevented "reasonable control" of a vehicle and whether any prescribed medication would render him an "unsafe

[ 41 Pa. Commw. Page 42]

    driver." Dr. Tenusan supplied all the data and ...


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