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COMMONWEALTH PENNSYLVANIA v. ELMER D. MILLER (05/13/85)

decided: May 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
ELMER D. MILLER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Elmer D. Miller, No. SA 537 of 1983.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

John R. DeAngelis, for appellee.

Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. did not participate in the decision in this case. Dissenting Opinion by Judge Barry.

Author: Macphail

[ 89 Pa. Commw. Page 233]

The Department of Transportation, Bureau of Traffic Safety (DOT) appeals here from an order of the Court of Common Pleas of Allegheny County which sustained Elmer D. Miller's appeal from the recall by DOT of his school bus operator's certificate.

This case was heard de novo before the trial court. Our scope of review is to determine whether the trial court's findings of fact are supported by competent evidence, whether there has been an error of law or whether the trial court has manifestly abused its discretion. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982).

Miller's school bus operator's certificate was suspended pursuant to 67 Pa. Code § 71.3, the DOT regulation which provides that school bus drivers must

[ 89 Pa. Commw. Page 234]

    have an annual physical examination and states at 67 Pa. Code § 71.3(b) that "the minimum requirements for passing a physical examination" include in pertinent part:

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

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


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