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Turk v. Commonwealth

October 21, 2009

MARY L. TURK, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



The opinion of the court was delivered by: Judge Simpson

Submitted: June 19, 2009

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

OPINION

Mary L. Turk (Licensee) seeks review of an order of the Court of Common Pleas of Butler County (trial court) directing the Department of Transportation, Bureau of Driver Licensing (DOT) to restore her driver's license following a recall under 75 Pa. C.S. §1519 (relating to determinations of incompetency) subject to the condition that Licensee pass an on-road driving test.

In particular, Licensee contends DOT and the trial court lacked either the statutory authority or a justifiable basis to require she pass a driving test as a condition of restoration after her medical and mental competency to drive were no longer at issue. Licensee also contends DOT and the trial court discriminated against her solely on account of her age.*fn1 In addition, Licensee claims DOT's recall notice violated her constitutional due process right to notice. For the reasons that follow, we affirm.

I. History

A. Letter from Relative

In June 2008, DOT received a letter from Licensee's niece stating that Licensee, 91 years old at the time, had vision problems that affected her ability to drive safely. See Reproduced Record (R.R.) at 56a-57a. Thereafter, DOT mailed Licensee a notice stating (with emphasis added):

Information submitted to [DOT] indicates that you may have a General Medical condition that could affect/limit your ability to drive. In order to determine if you meet [DOT's] medical standards for driving, it is necessary that you undergo a physical examination. Based on the results of this examination, you may be required to have an additional medical evaluation and/or take a driver's test.

Id. at 55a.

B. First General Medical Form, July 2008

In addition to the recall notice, DOT enclosed a general medical form, known as a DL-123, to be completed by Licensee's health care provider. In July 2008, Licensee's internist, Dr. Thomas G. Shetter (Physician) completed the form and returned it to DOT. See R.R. at 49a. Physician indicated he treated Licensee since 1989 for coronary artery disease, hypothyroidism, asthma, and osteoarthritis. Id. When asked to describe Licensee's signs and symptoms, Physician stated "[Licensee] is doing well -- but because of her age I would recommend that she be retested for a driver[']s license." Id.

However, Physician did not answer "yes" or "no" to whether Licensee had any condition that could interfere with her mental or physical ability to drive. Also, Physician did not answer "yes" or "no" to whether, from a medical standpoint, he considered Licensee physically and mentally competent to drive a motor vehicle. Id. Nonetheless, Physician indicated Licensee "needs to retest." Id.

C. Second General Medical Form, July, 2008

Shortly thereafter, Physician submitted a revised general medical form, dated the same day as the first form, with all boxes checked. Id. at 50a. As to whether Licensee had any disease or condition that could interfere with her mental or physical ability to operate a motor vehicle, Physician checked "yes." Id. As to whether, from a medical standpoint, he considered Licensee physically and mentally competent to operate a motor vehicle, Physician checked "no" and added "needs to retest." Id.

In August 2008, DOT notified Licensee that it received medical information indicating she had a general medical condition*fn2 that prevents her from safely operating a motor vehicle. Id. at 52a. Pursuant to 75 Pa. C.S. §1519,*fn3 DOT indefinitely recalled Licensee's driving privilege effective September 16, 2008. Id.

The notice advised Licensee (with emphasis added): "This action will remain in effect until we receive medical information that your condition has improved and you are able to safely operate a motor vehicle." Id.

Licensee appealed under 75 Pa. C.S. §1550 ("Judicial review") and requested a supersedeas. The trial court held an evidentiary hearing and denied Licensee's supersedeas request.*fn4

D. Optometrist Report

In October 2008, Licensee's optometrist, Dr. William R. Wigton (Optometrist) sent DOT an eye examination report indicating Licensee had adequate vision to drive. R.R. at 108a. Following the receipt of Optometrist's report and a letter from Licensee requesting restoration of her license, DOT asked Licensee to submit another general medical form.

E. Third General Medical Form, November, 2008

Shorty thereafter, Physician submitted a third general medical form, dated November 10, 2008. R.R. at 74a, 103a. Significantly, Physician again indicated Licensee had a condition or disease that could interfere with her mental or physical ability to operate a motor vehicle. Id. However, Physician considered Licensee physically and mentally competent to operate a motor vehicle. Id. Nevertheless, he again wrote (with emphasis added), that Licensee "is doing well but needs to retest to determine her driving ability." Id.

On November 19, DOT sent Licensee a revised notice stating she only needed to pass a driving test to restore her license. Id. at 99a.

F. Fourth General Medical Form, November, 2008

On November 20, ten days after his previous form, Physician submitted a fourth general medical form indicating Licensee could now drive safely; Physician no longer recommended that DOT retest Licensee. Id. at 98a. Neither this fourth form nor any of Physician's earlier three forms indicated when, if at all, Licensee was examined by Physician.

G. De Novo Hearing and Decision

In December 2008, the trial court held a hearing on the merits of Licensee's appeal. Although Licensee subpoenaed Physician, she did not call him as a witness on the theory that Licensee's medical competency was no longer at issue.

Ultimately, the trial court entered an order directing DOT to restore Licensee's driving privilege "if and only if" she "passes a driving examination consisting of an on-road driving test." Trial Ct. Order, 12/12/2008. In an opinion in support of its order, the trial court noted that under 75 Pa. C.S. §1519 (determination of incompetency) and 67 Pa. Code §83.5(c), DOT has the authority to recall Licensee's license and ...


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