Appeal from Common Pleas Court, Fayette County; Honorable William J. Franks, Judge.
Harold H. Cramer, Asst. Chief Counsel, with him, David R. White, Asst. Counsel, and John L. Heaton, Chief Counsel, Harrisburg, for appellant.
Maria Spina Altobelli, Davis and Davis, Uniontown, for appellee.
Craig and Doyle, JJ., and Narick, Senior Judge. Craig, Judge, dissenting.
[ 129 Pa. Commw. Page 431]
The Department of Transportation, Bureau of Driver Licensing (Department) has appealed from an order of the Court of Common Pleas of Fayette County which sustained the appeal of Alfred Ronald Chalfant (Chalfant), reinstating his school bus driver's license.
Pursuant to Section 1509 of the Vehicle Code (Code), 75 Pa.C.S. § 1509, school bus drivers are required to pass an annual physical examination in order to maintain their qualification for a Class 4 license. On July 28, 1988, Chalfant was examined by Dr. James A. Solan for this purpose and the results were reported to the Department. Although Dr. Solan indicated that he considered Chalfant physically qualified to operate a school bus, he noted that Chalfant had a prior history of seizures as a child, had been off all prescription medication for three years and had not had a seizure in over twenty years.
Upon receiving the completed form from Dr. Solan, the Department mailed a "Convulsive Disorder Form" to Chalfant
[ 129 Pa. Commw. Page 432]
and requested that he have his physician complete it. This form was completed by Dr. Richard A. Kasdan, who noted, inter alia : that Chalfant had been under his medical care since April of 1985, during which time he was not on seizure medication; that his diagnosis was that Chalfant suffered from a seizure disorder producing grand mal seizures that apparently only occur in stressful times, the last such seizure being approximately in 1966; that Chalfant had had an EEG done in April 1985, with normal results; and that he considered Chalfant to be physically and/or mentally competent to operate a motor vehicle.
Following receipt of this form, the Department recalled Chalfant's school bus driver's license. On Chalfant's appeal to common pleas court, the Department introduced copies of the forms completed by Drs. Solan and Kasdan, and they were admitted into evidence without objection. Chalfant offered no evidence. The trial court determined that the Department was required to prove that it was likely that Chalfant's disorder would cause loss or impairment of consciousness or loss of ability to drive a school bus safely and that the Department had failed to meet that burden.*fn1
On appeal, the Department argues that it is not required to prove that Chalfant's condition affects his safe operation of a school bus. Rather, it contends that proof of the seizure disorder itself is sufficient under its regulations to justify recall of Chalfant's Class 4 operating privilege.
Section 1519(c) of the Code, 75 Pa.C.S. § 1519(c), authorizes the Department to "recall the operating privilege of any person whose incompetency has been established . . . ." The regulations governing the physical requirements for school bus drivers are contained in 67 Pa.Code § 71.3.*fn2 As pertinent to this appeal, those regulations provide that a
[ 129 Pa. Commw. Page 433]
person is physically qualified to drive a school bus if that person "[h]as no established medical history or clinical diagnosis of seizure disorders or another condition likely to cause loss or impairment of consciousness or loss of ability to drive a school bus safely." 67 Pa.Code § 71.3(b)(10) (condition (b)(10)).
The Department contends that the regulations should be read to disqualify a person as a school bus driver if he has either (1) a seizure disorder, or (2) any other condition likely to affect his ability to drive safely. Chalfant counters that the phrase "likely to cause loss or impairment of consciousness or loss of ability to drive a school bus safely" modifies both "seizure disorders" and "another ...