Appeal from Common Pleas Court, Delaware County; Honorable Joseph F. Battle, Judge.
Donald H. Poorman, Asst. Counsel, Philadelphia, John L. Heaton, Chief Counsel, Harold H. Cramer, Asst. Chief Counsel, Harrisburg, for appellant.
Leonard Tenaglia, Media, for appellee.
Craig, Doyle and Palladino, JJ. Doyle, Judge, concurring and dissenting.
[ 128 Pa. Commw. Page 596]
The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Delaware County which reinstated the school bus driver license of Elizabeth C. Tinsley (Tinsley). We affirm in part and reverse in part.
Tinsley has been a school bus driver for Rose Tree Media School District (District) for eighteen years. In December 1985, Tinsley was diagnosed a diabetic. Tinsley currently takes hypoglycemic medication to control her blood sugar level.
By a letter dated September 11, 1987, DOT recalled Tinsley's school bus driving privileges pursuant to Section 1519(c) of the Vehicle Code, 75 Pa.C.S. § 1519(c), which requires DOT to recall the operating privileges of any person whose incompetency has been established. Tinsley was found to be incompetent under 67 Pa.Code § 71.3,*fn1 which prohibits a person having an established history or clinical diagnosis of diabetes which requires the use of insulin or any other hypoglycemic drug from being a school bus driver. Tinsley appealed this recall to the trial court.
After a de novo hearing, the trial court found that DOT's recall of Tinsley's school bus operating privileges violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Rehabilitation Act).*fn2 The trial court reinstated Tinsley's
[ 128 Pa. Commw. Page 597]
operating privileges upon the conditions that: (1) the District, or a physician selected or approved by the District, perform a blood prick test on Tinsley each day which she is to drive a school bus prior to operating such vehicle, (2) if the testing should reveal that her diabetic condition is not under control, the District is to suspend her immediately and she is to remain suspended until further order from the trial court, and (3) a copy of the blood test results is to be sent to DOT.
On appeal,*fn3 DOT argues that the trial court erred in permitting Tinsley to raise the Rehabilitation Act in an appeal of a license recall; that Tinsley is not an "otherwise qualified" individual under the Rehabilitation Act; and that the trial court did not have the authority to reinstate the motorist's license subject to certain conditions.
DOT first contends that because the Rehabilitation Act creates an independent cause of action, it can only be raised in a proceeding brought under this court's original jurisdiction. It is DOT's contention that to permit the raising of the Rehabilitation Act in an appeal of a license recall would place an undue burden on DOT because it has no forewarning that this issue will be ...