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decided: June 30, 1983.


Appeal from the Order of the Court of Common Pleas of Bradford County in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Glenn E. Slater, No. 80-7728.


Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Kenneth Levitzky, for appellee.

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

Author: Craig

[ 75 Pa. Commw. Page 312]

The Department of Transportation, Bureau of Traffic Safety, appeals an order of the Court of Common Pleas of Bradford County, which reversed the department's decision to revoke the school bus driver's license of Glenn E. Slater, a diabetic.

Slater has had a Class 4 license (school bus driver's license) since 1973. Responding to Slater's physician's report indicating that Slater had diabetes, the department, by letter of October 22, 1980, required Slater to have a doctor complete a general diabetic form issued by the department. On that form, the treating physician*fn1 indicated that Slater had diabetes for eight years and was taking 500 milligrams of the hypoglycemic drug Dymelor daily. Furthermore, the physician noted that Slater did not adhere to his diet, and that his blood sugar was not within the normal range.

As a result of that diagnosis, the department notified Slater that it was suspending his license, effective December 2, 1980, under sections 1504 and 1509 of The Vehicle Code,*fn2 requiring that school bus drivers be physically qualified to obtain a license.*fn3

[ 75 Pa. Commw. Page 313]

Specifically, the department suspended Slater under 67 Pa. Code § 71.3, a regulation promulgated under the statutory authority of section 1504(c) and 75 Pa. C.S. § 1517(b).*fn4 Section 71.3 provides, in relevant part:

(b) Requirements of Physical Examination. The following shall be the minimum requirements for passing a physical examination:

(3) No established medical history or clinical diagnosis of:

(i) Diabetes mellitus requiring use of insulin or any other hypoglycemic medication.

Slater appealed his suspension to the common pleas court, which found that Slater's diabetes was well controlled and, by order of July 17, 1981, ruled that the department must restore Slater's driving privileges.

However, after the department had appealed that order, the common pleas court issued an opinion in which it stated that it "should not have considered the evidence relating to the time period subsequent to the Department's recall of Slater's driving privileges," and,

[ 75 Pa. Commw. Page 314]

    because the only evidence focusing on Slater's condition at the time of the suspension indicated that Slater's diabetes was not well controlled, said that its order of July 17, 1981 should be reversed.

We note, however, that an appeal will lie only from a definitive order, decree or judgment which finally determines the action. See Stadler v. Borough of Mt. Oliver, 373 Pa. 316, 95 A.2d 776 (1953). Therefore, we must treat this matter as an appeal from the common pleas court's order dated July 17, 1981, which restored Slater's license.

In appealing that order, the department contends that it is entitled to issue regulations under an express grant of legislative authority, and that section 71.3, although requiring school bus drivers to meet much higher standards than ordinary drivers, is reasonable, considering the tragedy that could occur if the operator of a school bus lost consciousness.

In response, Slater asserts that section 71.3: (1) conflicts with the legislative intent expressed in 75 Pa. C.S. § 1509; and (2) violates the Fourteenth Amendment of the United States Constitution because it serves no rational legislative purpose, unduly oppresses a specific class of individuals, and establishes an irrebuttable presumption of physical unfitness.

Statutory Compliance

In resolving Slater's first contention, we must first review Bureau of Traffic Safety v. Byrd, 41 Pa. Commonwealth Ct. 38, 399 A.2d 425 (1979), where we considered a regulation which categorized certain physical conditions as automatic disqualifications for a Class 4 license.*fn5 The department had promulgated that regulation under section 609 of the former Vehicle

[ 75 Pa. Commw. Page 315]

Code*fn6 which, like present section 1509, generally provided that no person could legally operate a school bus unless he "has satisfactorily passed a physical examination. . . ."

Our holding in Byrd, that a department regulation which declared that a history of myocardial infarction alone, absolutely and without exception, disqualified any person from legally driving a school bus, exceeded the department's legislative authority to require that school bus drivers pass annual physical exams, rested on our crucial determination that:

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

Id. at 41, 399 A.2d at 426.

However, as we noted in Byrd,*fn7 the legislature repealed the 1959 Vehicle Code and reenacted the current Vehicle Code,*fn8 which became effective on July 1, 1977. Thus, we decided Byrd under the 1959 Code; here, however, we must consider the validity of section 71.3 under the current Code.

Section 1504 of the current Code*fn9 grants the department express authority to promulgate regulations to establish "the qualifications necessary for the safe operation of various types, sizes or combinations of vehicles and the manner of examining applicants to determine their qualifications for the type or general class of license applied for." Furthermore, 75 Pa. C.S. § 1517 in the current Code formally establishes a Medical Advisory Board and provides that "[t]he board shall formulate rules and regulations for adoption by

[ 75 Pa. Commw. Page 316]

    the department on physical and mental criteria . . . relating to the licensing of drivers under the provisions of this chapter." 75 Pa. C.S. § 1517(b). Thus, in contrast to Byrd, under the current code, the department has express authority to promulgate regulations implementing section 1509.

As in Byrd, we find instructive our Supreme Court's decision in Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 313 A.2d 156 (1973). There the court quoted Professor Davis, an administrative law expert, in discussing the difference between a regulation promulgated under an agency's interpretive rule-making powers (the Byrd situation) and one promulgated ...

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