Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania v. Joseph Giampa, No. 81-21677.
A. Martin Herring, for appellant.
Robert C. Bell, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, and Spencer A. Manthorpe, Chief Counsel, for appellee.
Judges Craig and Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 89 Pa. Commw. Page 347]
In this schoolbus driver's license recall case, Joseph Giampa has appealed from an order of the Court of Common Pleas of Montgomery County affirming the recall of his license by the Pennsylvania Department of Transportation because measurement of his hearing reflected a hearing loss greater than that permissible for schoolbus drivers under 67 Pa. Code § 71.3(b)(5), which allows:
(5) No hearing loss greater than 25 decibels at frequencies of 500, 1000 and 2000 in the better ear without a hearing aid.
On appeal, Mr. Giampa contends that (1) his hearing, as a matter of fact, is nevertheless satisfactory for the safe operation of a schoolbus, and (2) the regulation is invalid.
On the first point, Mr. Giampa points to the opinion of the school physician, whose view was that the hearing deficiency did not prevent Mr. Giampa from operating a schoolbus safely, and to the similar opinion of a hearing specialist that Mr. Giampa's hearing levels were "within essentially normal range for his age" and that "he is not significantly impaired to the extent that he would be a risk driving a bus."
Judge Smillie, of the trial court, held that those specific medical opinions did not warrant reversing the recall action where the measured hearing loss exceeded the standard which the Medical Advisory Board of the Department of Transportation has adopted in the cited regulation.
Two recent decisions of this court confirm the correctness of Judge Smillie's conclusion. In Department of Transportation, Bureau of Traffic Safety v. Johnson, 88 Pa. Commonwealth Ct. 248, 489 A.2d 960 (No. 738 C.D. 1983, filed March 19, 1985), this court held that noncompliance with a similar standard in 67
[ 89 Pa. Commw. Page 348]
Pa. Code § 71.3(b)(3), which bars schoolbus operation by any driver with an established medical history of cardiovascular disease, justified a schoolbus driver's license recall despite specific medical opinion that the particular driver's physical condition did not constitute a threat to safety. Another recent decision of this court, Department of Transportation, Bureau ...