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Peachey v. Commonwealth of Pennsylvania

August 13, 2009

GARY L. PEACHEY
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



The opinion of the court was delivered by: Senior Judge Friedman

Submitted: June 5, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), appeals from the October 29, 2008, order of the Court of Common Pleas of Centre County (trial court), which sustained the statutory appeal of Gary L. Peachey (Licensee) from DOT's recall of his operating privileges pursuant to section 1519(c) of the Vehicle Code, 75 Pa. C.S. §1519(c) (relating to a determination of incompetency to drive for medical reasons). We affirm.

Following her medical examination of Licensee on September 9, 2008, Dr. Jessica Zingaretti submitted an Initial Reporting Form to DOT stating that Licensee suffers from a seizure disorder that affects his ability to operate a motor vehicle. (Initial Reporting Form, R.R. at 49a.) The form also indicated that Licensee experienced a temporal lobe seizure on September 8, 2008, that an electroencephalogram (EEG) on that date was abnormal and that Licensee had received a new prescription for anticonvulsant medication. (Id.)

By official notice dated October 14, 2008, DOT notified Licensee that, as mandated by section 1519(c) of the Vehicle Code, DOT was recalling Licensee's driving privilege indefinitely, effective November 4, 2008, based on information indicating that Licensee has a "Seizure Disorder condition which prevents [him] from safely operating a motor vehicle." (R.R. at 47a.) The notice also informed Licensee that, because he has a seizure disorder, his driving privilege could be restored only after he had remained seizure-free for a six-month period, with or without medication, following his reported September 8, 2008, seizure.*fn1 67 Pa. Code §83.4. (R.R. at 47a.)

In response to Licensee's request for information regarding the restoration of his driving privilege, DOT provided Licensee with a Convulsive Disorder Reporting Form to be completed by Licensee's health care provider and returned to DOT. (R.R. at 46a, 56a.) Dr. Kevin Parry, a neurologist treating Licensee, completed the form, which contained nine questions related to Licensee's condition. The first three questions, respectively, asked whether the patient has been diagnosed as having a seizure disorder, whether the patient had an EEG indicative of seizure pattern and whether the patient is being treated with medication; in each case, Dr. Parry responded "yes." The ninth question asked whether the patient has been diagnosed with episodes of loss of consciousness or awareness that would interfere with his safe operation of an automobile, to which Dr. Parry responded "no."*fn2

(Convulsive Disorder Reporting Form, R.R. at 56a.)

On October 27, 2008, Licensee filed a timely statutory appeal of his license recall, and the trial court held a de novo hearing on the matter on October 29, 2008. At the hearing, DOT introduced the Initial Reporting Form and the Convulsive Disorder Reporting Form into evidence, thereby establishing that Licensee has a seizure disorder and suffered a seizure on September 8, 2008. Counsel maintained that those documents established Licensee's incompetency to drive and that the applicable statute and regulation dictate the recall of Licensee's operating privilege until a licensed physician reports to DOT on or after March 8, 2009, that Licensee has not had another seizure.

Thereafter, Dr. Parry testified on Licensee's behalf. On direct examination, Dr. Parry stated that Licensee came under his care on September 8, 2008, at which time he restricted Licensee from driving for two months. (R.R. at 27a-28a.) When asked whether it now would be safe for Licensee to drive, Dr. Parry opined, "I think it would probably be safe, it's always a judgment call with these things, but I think he probably could drive at this point." (R.R. at 27a.) Dr. Parry did not dispute that Licensee had a seizure in September, and he noted that Licensee probably had suffered a seizure two years earlier, but Dr. Parry explained that "he looks fine, he's a responsible guy and I think he can probably drive safely." (R.R. at 28a.)

On cross-examination, counsel for DOT questioned Dr. Parry regarding the likelihood that a person who has suffered a seizure will have a subsequent seizure. Referencing studies done on that topic approximately twenty-five years earlier, Dr. Parry testified that the probability of having another seizure declined to around twenty or twenty-five percent after two months and dropped to around two percent after six months. (R.R. at 30a.) The trial court then requested that Dr. Parry address the regulation's mandatory six-month waiting period. Although Dr. Parry did not reject the rule entirely, he explained that, because of Licensee's particular history and medication, he would not apply it to Licensee.*fn3 (R.R. at 33a.)

Following Dr. Parry's testimony, counsel for Licensee cited Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996), for the proposition that the court was not bound by the six-month minimum recall period set forth in 67 Pa. Code §83.4. (R.R. at 37a-39a.) At the conclusion of the hearing, the trial court sustained Licensee's appeal based on Dr. Parry's medical testimony.

In its subsequent opinion, the trial court explained that it was "convinced by Dr. Parry's medical opinion that [Licensee's] condition was such that he did not pose a significant risk of suffering a future seizure and therefore was competent to drive." (Trial ct. op. at 2, R.R. at 68a.) The trial court acknowledged that the relevant regulation requires a person to remain seizure-free for a period of six months before becoming eligible for reinstatement of the driving privilege. Nevertheless, the trial court indicated that it was unwilling to treat Dr. Parry's first hand medical testimony as superfluous or allow Licensee's appeal to become a meaningless formality. DOT now appeals to this court.*fn4

DOT argues that the trial court exceeded its scope of review and impermissibly created its own policy regarding the restoration of driving privileges. DOT points out that, pursuant to the explicit statutory language, judicial review of a recall of driving privileges under section 1519(c) of the Vehicle Code is "limited to whether the person is competent to drive in accordance with the ...


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