The opinion of the court was delivered by: DITTER
In this civil rights class action, plaintiff, an individual with impaired hearing which necessitates he wear a hearing aid, alleges that the Pennsylvania Department of Transportation, the Pennsylvania Department of Education, and five named officials of those agencies, violated his rights, and those of the class he represents, by suspending their school bus driver's licenses.
Specifically, plaintiff alleges violations of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, the Civil Rights Act of 1871 (42 U.S.C. § 1983), the Rehabilitation Act of 1973 (29 U.S.C. § 794), the Pennsylvania Human Relations Act (43 P.S. § 951 et seq. (Purdon Pamphlet 1982)), and section 618(a) (i) of the Pennsylvania Vehicle Code (75 P.S. § 618(a) (i) (Purdon 1979) repealed and recodified, 75 Pa. C.S.A. §§ 1532, 1533 (Purdon 1982)). Plaintiff seeks a declaration that the policies, practices, and procedures of the defendants are unconstitutional and violate federal and state statutes; a permanent injunction prohibiting defendants from enforcing these policies, practices, and procedures; reinstatement of his school bus driver's license at a seniority status as if his license had never been suspended; compensatory damages including back pay; and attorneys' fees.
Plaintiff, James Strathie, began to wear a hearing aid in 1947 following ear damage suffered in World War II. In October, 1976, Strathie applied for employment as a school bus driver and was hired by Van Trans Inc., a private bus company. Soon thereafter, the Pennsylvania Department of Transportation issued him a temporary (90 day) Class 4 permit to drive a school bus. In January, 1977, Strathie applied for and was issued a permanent Class 4 license. After working for Van Trans as a bus driver for one day, Strathie was notified that effective February 9, 1977, his license would be suspended because he wore a hearing aid, in violation of Department of Transportation regulations.
Pursuant to statutory authority, the Medical Advisory Board (MAB) to the Department of Transportation had formulated a regulation prohibiting persons needing and wearing hearing aids from being licensed as school bus drivers. In delineating the reasons for its proposed regulation, the Board noted several foreseeable risks to the safety of school bus riders if buses were driven by a person with a hearing defect corrected by a hearing aid. Because of the considerations voiced by the Board and the Department of Transportation's concern for the safety of school bus riders, the regulation was adopted by the Department in 1970. Based on the videotape testimony, depositions, exhibits, and all matters of record, I make the following:
1. Plaintiff James Strathie is a 58-year old high school graduate. While serving in the armed forces during World War II, he suffered ear damage.
2. In 1947, Strathie had bilateral mastoid surgery and began to wear a hearing aid.
3. Since then, Strathie has worn several models of hearing aids; he currently wears a model which is built into the frame of his eyeglasses.
4. By use of the hearing aid, Strathie's hearing is corrected to within the decibel range considered to be normal hearing.
5. Strathie has held a valid Pennsylvania driver's license since he was 16 years old. This license authorizes him to drive automobiles, motorcycles, and all types of trucks, including tractor trailers.
6. For 15 years Strathie was self-employed driving trucks, including a thirty (30) foot tractor trailer; this employment included long-distance interstate trips, trips throughout Pennsylvania, and short trips within the area of the Council Rock School District.
7. Strathie also served as a volunteer ambulance driver in Bucks County, Pennsylvania, for 20 years.
8. Defendant Department of Transportation of the Commonwealth of Pennsylvania is the sole authority for the issuance of driver's licenses in Pennsylvania. The Department of Transportation is a recipient of federal funds.
9. Defendant Thomas Larsen is the Secretary of the Department of Transportation. As such, he has ultimate responsibility for the promulgation of regulations for the Department of Transportation.
10. The Bureau of Traffic Safety is a division within the Department of Transportation. Since at least 1975, the Bureau has received approximately 70 percent of its highway safety funds from the federal government.
11. Defendant Francis Gaffney was the Director of the Bureau of Traffic Safety at the time the complaint was filed. Robert Spena is the current director of the Bureau of Traffic Safety.
13. Defendant Department of Education of the Commonwealth of Pennsylvania has authority to approve all means of pupil transportation within the Commonwealth. 22 Pa. Code § 23.2 (1975). The Department of Education is a recipient of federal funds.
14. Defendant Robert G. Scanlon is the Secretary of Education of the Commonwealth of Pennsylvania.
15. The Department of Education has adopted as part of its own regulations the requirement that all school bus drivers meet the "regulations of the Bureau of Traffic Safety of the . . . . Department of Transportation in regard to application, . . . fitness, competence, . . . licensing, physical examination and continuing eligibility." 22 Pa. Code § 23.1 (1975).
16. The Pennsylvania Vehicle Code authorizes the Pennsylvania Department of Transportation to establish, by regulation, the qualifications necessary for obtaining operating privileges and the manner of examining applicants to determine their qualifications. Act of June 17, 1976, P.L. 162, No. 81, 75 Pa. C.S.A. §§ 1504(c), 1508(a) (1976).
17. Pursuant to Pennsylvania law, the Medical Advisory Board of the Department of Transportation formulates "rules and regulations for adoption by the Department, on physical and mental criteria . . . relating to the licensing of drivers. . . ." 75 Pa. C.S.A. § 1517(b) (Purdon 1977).
18. The Medical Advisory Board is composed of a representative from each of five named Commonwealth administrative agencies, a physician from each of seven named medical specialties, and an optometrist. There is no board member whose medical specialty or expertise is diseases of the ear, or the evaluation and rehabilitation of hearing loss. 75 Pa. C.S.A. § 1517(a) (Purdon 1977).
19. Pursuant to statutory authority, the Medical Advisory Board formulated Department of Transportation regulation 101 (now regulation 150), which prohibits hearing aid wearers from being licensed as school bus drivers. (Regulation 101 became effective July 1, 1970; it was later superseded but not changed by regulation 150 of the Department of Transportation, effective July 1, 1979.)
20. The regulation provides that a person is physically qualified to operate a school bus if, among other enumerated qualifications, he: "has hearing loss no greater than 25 decibels . . . in the better ear, without a hearing aid." (emphasis added). 67 Pa. Code § 71.3(b) (5) (1979).
21. In October, 1976, Strathie applied for employment as a school bus driver with Van Trans, Inc., Newtown, Bucks County, Pennsylvania. Van Trans, Inc., is a private bus company which provides transportation for students in public school districts, including Council Rock School District.
22. Strathie was hired and trained by Van Trans as a school bus driver. The Department of Transportation of the Commonwealth of Pennsylvania issued him a temporary Class 4 permit to drive a school bus for 90 days.
23. Van Trans told Strathie that he would be driving students of the Council Rock School District.
24. In January, 1977, Strathie applied for a permanent Class 4 driver's license to drive a school bus. He took the required tests and was issued the Class 4 license by the Department of Transportation of the Commonwealth of Pennsylvania.
26. At the time his school bus driver's license was suspended, Strathie was in every respect other than his hearing, qualified under Department of Transportation regulations to continue to be licensed to drive a school bus. With the use of a hearing aid, Strathie's hearing was corrected within the decibel requirements of the regulations of the Department of Transportation to be a school bus driver.
27. At the time the Department of Transportation suspended his school bus driver's license, Strathie's salary at Van Trans was $3.75 per hour as a part time driver. Had his license not been suspended, Strathie would have made the job as a school bus driver with Van Trans his primary employment. Strathie's rate of pay at Van Trans, if hired and employed full time, would have been $4.75 per hour in 1978, $5.10 per hour in 1979, and $5.35 per hour in 1980.
28. Following suspension of his school bus driver's license, Strathie was hired as a part-time clerk in a hardware store. Continuing his employment at the hardware store until 1979, Strathie worked approximately 29 hours a week, at a salary of $3.85 per hour. His total income from that employment during the years 1977-79 was $11,403.51.
29. In 1979, Strathie changed his residence from Pennsylvania to Florida, where he passed the tests required under Florida law to become a school bus driver. Though qualified to drive a school bus in Florida, Strathie has yet to attain permanent employment as a bus driver.
30. Strathie has never been refused or discharged from a job because of his hearing impairment, except for the school bus driver job with Van Trans. Other than driving a school bus, Strathie has never been prevented by his hearing impairment from taking part in the usual activities of life. His hearing impairment has not affected his learning or driving ability in any way.
31. The plaintiff class consists of all persons who have had their Pennsylvania Class 4 school bus driver's licenses suspended since February 9, 1973, pursuant to Pennsylvania Department of Transportation regulation 150.
32. According to Department of Transportation records, the Class 4 licenses of at least 46 persons were suspended between February 9, 1973, and October 29, 1979, because they wore hearing aids. The Department of Transportation has continued to enforce this regulation since October 1979, by suspending the Class 4 licenses of additional bus drivers.
33. The plaintiff was unable to meet the minimum hearing acuity standards without the use of a hearing aid. It was for this reason that on February 2, 1977, his school bus operating privileges were suspended.
34. The regulation which prohibits people from driving school buses who need hearing aids to meet the minimum hearing standards for licensing as school bus drivers was formulated by the MAB and adopted by the Department of Transportation effective July 1, 1970.
35. The prohibition of the use of hearing aids by school bus drivers was imposed, inter alia ...