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APPEAL WILLIE D. STOBER FROM DECISION COMMONWEALTH PENNSYLVANIA (08/24/88)

decided: August 24, 1988.

IN RE: THE APPEAL OF WILLIE D. STOBER FROM THE DECISION OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY OPERATIONS, RECALLING HIS SCHOOL BUS OPERATOR'S CERTIFICATE. WILLIE D. STOBER, APPELLANT


Appeal from the Order of the Court of Common Pleas of Lancaster County, in the case of In Re: The Appeal of Willie D. Stober from the decision of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety Operations, recalling his School Bus Operator's Certificate, Trust Book 48, Page 291.

COUNSEL

Robert W. Hallinger, Barley, Snyder, Cooper & Barber, for appellant.

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

Judges Craig, Doyle and Colins, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Doyle, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge Barry.

Author: Barry

[ 119 Pa. Commw. Page 157]

In In Re: Appeal of Stober, Pa. Commonwealth Ct. (slip opinion), 524 A.2d 535 (1987), a panel of this Court held that Section 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794, and Strathie v. Department of Transportation, 716 F.2d 227 (3rd Cir. 1983) could form the basis for invalidating a Department of Transportation (DOT) regulation requiring the recall of a school bus driver's license who had suffered a myocardial infarction. We remanded to the trial court for factual findings on whether (1) there was an appreciable risk that Mr. Stober could not secure the safety of his passengers and (2) an accommodation of heart attack victims by medical screening would unduly burden DOT. This remand was necessitated by the testimony of Mr. Stober's medical expert that successful open heart surgery and periodic stress tests which showed no problems made Mr. Stober less of a risk of suffering another heart attack than someone not so tested.

Following the filing of our decision, DOT filed a petition for reargument and reconsideration. In this petition, DOT for the first time presented two issues. It argued that the trial court had no jurisdiction to consider a violation of Section 504 of the Rehabilitation Act in the context of an appeal under Section 1550 of the Motor Vehicle Code, 75 Pa. C.S. § 1550. It also argued that

[ 119 Pa. Commw. Page 158]

    certain federal regulations rendered the Rehabilitation Act inapplicable to DOT's regulations concerning school bus drivers. The matter was heard by the Court en banc and is now ready for disposition.

Under 75 Pa. C.S. § 1550, an individual whose license has been recalled has a right of appeal to common pleas court. DOT, in its brief states, "The sole issue in a Section 1550 appeal from a Departmental administrative recall is whether the petitioner was competent to operate a particular class of motor vehicle on the date of the recall." (DOT's supplemental brief, p. 23). DOT takes the position that it sustains its burden by merely showing the past history of a myocardial infarction. Mr. Stober, on the other hand, has taken the position that he was competent to operate a school bus on the date in question and that DOT's use of its regulations violated the Rehabilitation Act. Our original decision in this case disposed of that dispute in favor of Mr. Stober and DOT has failed to convince us that the original decision is incorrect.

DOT relies upon a line of cases involving the automatic suspension of a driver's license following convictions of specifically enumerated sections of the Motor Vehicle Code. In Commonwealth v. Johnson, 68 Pa. Commonwealth Ct. 384, 387, 449 A.2d 121, 123 (1982), quoting Nyman Motor Vehicle Operator License Case, 218 Pa. Superior Ct. 221, 224, 275 A.2d 836, 838 (1971), we stated, "[T]he appropriate inquiry . . . 'is whether the operator was convicted, not whether he should have been convicted.'" (Emphasis in original.) We agree that a civil license suspension case cannot be used to collaterally attack a criminal conviction, but those cases are of no moment to the present analysis. In those cases, the operator had a decision of an independent tribunal that he had violated the Motor Vehicle Code. In the present case, however, DOT bore the burden

[ 119 Pa. Commw. Page 159]

    of proving that Mr. Stober was incompetent to drive a school bus. As it introduced only the past history of a myocardial infarction and since we held this was not sufficient, DOT simply failed to meet its required burden. ...


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