Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Arthur Johnson, No. 6512 January Term, 1983.
Robert C. Bell, Assistant Counsel, with him, Howard H. Cramer, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Paul V. Tatlow, with him, Daniel J. McAleer, Thomas F. McDevitt, P.C., for appellee.
Judges Rogers and Craig and Senior Judge Barbieri, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Craig. Judge Colins dissents. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 249]
The Pennsylvania Department of Transportation appealed an order by Judge White of the Court of Common Pleas of Philadelphia County, which had reversed the department's decision recalling the school
[ 88 Pa. Commw. Page 250]
bus operating privileges of Arthur Johnson because he had a history of a myocardial infarction. Pursuant to an earlier argument of the appeal, a panel of this court, under date of July 17, 1984, affirmed the trial court's order.
After careful consideration, this court granted reargument of the case before the court en banc. We now vacate the panel opinion and order of July 17, 1984, and file this opinion of the court en banc, with an order reversing the decision appealed.
The Vehicle Code requires that school bus drivers be physically qualified. At 75 Pa. C.S. § 1504(c), the Code authorizes and requires the department to "establish by regulation the qualifications necessary for the safe operation of the various types . . . of vehicles and the manner of examining applicants to determine their qualifications. . . ." At 75 Pa. C.S. § 1509(a)(2), relating to school bus driver licenses, the Code requires "an annual physical examination to be given by the physician for the school district. . . ." Finally, at 75 Pa. C.S. § 1517(b), the Code establishes a medical board and requires that board to "formulate rules and regulations for adoption by the department on physical and mental criteria . . . relating to the licensing of drivers."
The current regulation, at 67 Pa. Code § 71.3(b), reiterates the annual physical examination requirement for school bus drivers and states "the minimum requirements for passing a physical examination" as including, not only compliance with specified vision standards and the absence of anatomical impairment, but also:
(3) No established medical history or clinical diagnosis of:
(i) diabetes mellitus requiring use of insulin or any other ...