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Home My WebLink About00-08814 . .. ~ . ~ i",," ~ '. :\lj~.~Jt ~ ; IN THE COMMONWEALTH COURT OF PENNSYL VANIA Elaine Montchal v. No. 1272 C.D. 2001 Submitted: December 28,2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE JAMES GARDNER COLINS, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION BY SENIOR JUDGE MIRARCHI FILED: March 25, 2002 The Department of Transportation, "Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) which sustained th~ appeal of Elaine Montchal (Licensee) from a recall of her operating privilege that was imposed by the Department on grounds of incompetency pursuant to Section l5l9(c) of the Vehicle Code (Code), as amended. 75 Pa. C.S. S15l9(c).! We reverse. 1 Section l5l9(c) provides: The department shall recall the operating privilege of any person whose incompetency has been established under the provisions of this chapter. , The recall shall be for an indefinite period until satisfactory evidence is presented to the department in accordance with regulations to establish that such person is competent to drive a motor vehicle. The department shall suspend the operating privilege of any person who refuses or fails to comply with the requirements of this section until that person does comply and that person's competency to drive is established. Any person aggrieved ," (Footnote continued on next page...) "'&.~-tl';ii!l;",YJ"J~1~J1&;~'~~~~@;;ii"'"d,"!i~",~,i;c%i",',!i'i~"""(~~~~""""""" <.,....., , '-'--"~i:\!'liit;IiM.l'I!Mi~gjj[_J<-"<"'''ilNSilIlf!;l i.Ui , " On September 5, 2000, Licensee was involved in a single car accident. The Lower Allen Township Police Department sent a notice to the Department recommending that Licensee be given a special medical/driver examination. The form listed Licensee's physical or mental limitations as "glasses/80 years old." Reproduced Record (R.R.), p. 68a. The form also listed the reason for requesting the examination as: "Crashed into tree, single vehicle accident. Also received call from neighbor, about her driving." Id. By notice dated September 29, 2000, the Department informed Licensee that it had received information indicating that she may have a general medical condition that could affect her ability to drive. The Department informed Licensee that it was necessary for her to take a driving examination.2 The Department advised Licensee that if she failed to comply with the request within 30 days, her operating privileges would be suspended. On October 25, 2000, Licensee took a driver's test but failed the driving, traffic signs and laws sections of the examination. By notice dated December 13, 2000, the Department informed Licensee that her operating privileges were being suspended indefmitely effective January 17, 2001 as a result of her failure to comply with the Department's (continued... ) by recall or suspension of the operating privilege may appeal in the manner provided in section 1550. The judicial review shall be limited to whether the person is competent to drive in accordance with the provisions of the regulations promulgated under section 1517 (relating to Medical Advisory Board). 2 The notice advised Licensee that she had three opportunities to take the test. 2 ~,~'"". " ,.ikj I I,,"""", ~ ."iL_._" "..'. -""~; , previous request for a driver's examination.3 Licensee then appealed to the trial court4 After a hearing, the trial court sustained Licensee's appeal. The trial court concluded that the Department could not recall the operating privileges of any person based on a recommendation from a local police department where there is no medical report or medical testimony suggesting that the motorist is not competent to drive. The Department now appeals to this COurt"5 On appeal,' the Department argues that the trial court erred in concluding that the Department had no authority to require Licensee to undergo a driving examination. The general rule regarding the determination of incompetency IS found in Section 1519(a) of the Vehicle Code. That Section provides: The department, having cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, may require the applicant or driver to undergo one or more of the examinations authorized under this subchapter in order to determine the competency of the person to drive. The department may require the person to be examined by a physician or 3 As explained by the Department before the trial court, the Department requires that the driver take and pass the driver's examination. 4 Licensee also requested a supersedeas. At the supersedeas hearing, Licensee introduced into evidence a letter from her physician stating that he had examined her on December 22, 2000 to determine her physical and mental capability to operate a motor vehicle. Licensee's physician stated that it was his opinion, to a reasonable degree of medical certainty, that Licensee was able to operate a motor vehicle safely. 5 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed, or whether the trial court's determination demonstrates a manifest abuse of discretion. Mazza v. Department of Transportation. Bureau of Driver Licensing. 692 A.2d 251 (pa. Cmwlth. 1997), petition for allowance of appeal denied, 551 Pa. 172,709 A.2d 887(1998). 3 BlI~f:#!"lill.'%'.MfiJii&'~-;;!"iiO'!~~~~~"""j?i-,j';'f~'i!!;W.!'oI#-~"bll,M'<l~~jIJir&!~"'.i!:~~ffi!l'.1lI;j~~~~k~if.wi...bd!.t &dl~i " a licensed psychologist designated by the department or may require the person to undergo an examination by a physician or a licensed psychologist of the person's choice. If the department designates the physician or licensed psychologist, the licensed driver or applicant may, in addition, cause a written report to be forwarded to the department by a physician or a licensed psychologist of the driver's or applicant's choice. Vision qualifications may be determined by an optometrist or ophthalmologist. The department shall appoint one or more qualified persons who shall consider all medical reports and testimony in order to determine the competency of the driver or the applicant to drive. (Emphasis added.) The Department contends that it has authority under Section l5l9(a) to require a licensee to undergo a driver's examination. The Department relies on the first sentence of Section l5l9(a) which provides that it may require the licensee "to undergo one or more of the examinations authorized under this subchapter in order to determine the competency of the person to drive." (Emphasis added.) An applicant for a driver's license is required by Section 1508 of the Vehicle Code, as amended, 75 Pa. C.S. 111508, to be examined for the type or class of vehicles that the applicant desires to drive. The examination includes "an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle." Pursuant to Section l5l4(b) of the Vehicle Code, 75 Pa. C.S. 11l5l4(b), the Department may require persons applying for renewal of a driver's license "to take and successfully pass such additional tests as the department. may find reasonably necessary to determine the applicant's qualifications." The Department contends that because Sections 1508 and l514(b) are included within the same subchapter as Section 1519, it has authority under Section 1519 to require a licensee to submit to the tests authorized by those Sections. 4 ~- . ....- ,'-" '""- iIIIIWIrIl~'Ui!ii~",-,,-_, <' Pursuant to Section 1921 of the Statutory Construction Act of 1972, "[ e ]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S.A. 9 1921. Furthermore, a statute should be interpreted as a whole, giving effect to all its provisions. Commonwealth v. Barfield, 768 A.2d 343 (Pa. Super. 2001). . Keeping these principles in mind, we conclude that Section 1519 grants authority to the Department to require a licensee to submit the tests set forth in Sections 1508 and 1514(b). We further conclude that Section 1519 grants the Department discretion to request the licensee to undergo an examination by a physician, a licensed psychologist or by an optometrist or ophthalmologist. If the Department requires the licensee to undergo a medical examination, Section 1519 then requires the determination of competency to be made based on all medical reports and testimony. In the case before us, the Department received a police report stating the Licensee had been involved in a single car accident and had crashed into a tree. Based on this information, the Department requested Licensee to take a driver's examination. The Department recalled Licensee's operating privileges because she failed the driver's examination. The Department did not request Licensee to undergo a medical examination; therefore, it was not necessary for the Department to have medical reports and testimony in order to recall her operating privileges. The order of the trial court is reversed, and the recall of Licensee's operating privileges is reinstated. c:Q CHARLES P. MIRARCHI, JR., Seni 5 ~,""""J&', I "-'-'.~' [m~Mj~m~,~i;lM&6'10'dli""';\~j"m~.",,,;M,*,,'i,0.'ir<&<j,~.-g~~~~,,~~Jll!bl:_li:r~~~ ~_. " Elaine Montchal IN THE COMMONWEALTH COURT OF PENNSYL VANIA .# 66-~~/4-~ v. No. 1272 C.D. 2001 ORDER , , '." -.,.. -r; rn ~~ '':,1 .,". I f'\,) c/) l)"', I c--= '-.- , ~-.. :':;':-. J" (-' "-- )> C:': - " ~ ',.'1 -( ,""' Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant AND NOW, this 25th day of March, 2002, the order of the Court of Common Pleas of Cumberland COlillty in the above-captioned matter is hereby reversed, and the recall of the operating privilege of Elaine Montchal is reinstated. CHARLES P. MIRARCHI, JR., Serno Certified from the Record MAR 2 5 2002 ttlld Order Exit ~-- "'''',",'''"~ ,. ""=,,~. .~ " ~ ~ " . ."~ -",,1 '"'.'M....__1;i.,,;,,:.~,; ,. CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COUR1'.OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ELAINE MONTCHAL v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 2000-8814 CIVIL TERM 1272 CD 2001 The documents comprising the record have been numbered from No.1 to 51 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 7-9-01. y An additional COpy of this certificate is enclosed. Please sien and date COpy, thereby acknowledeine receipt of this record. Dllte Signature & Title ,-, - .--"." - .:..:~c:...~.;.:__~__ -_ - ~ -. ---. - - --- . ., : - ~- ;;. ;;::..."__;.;;.it , . - - - -.- , -, -... 4" '::;;;C' i ... !' :-'" .--;'" ~ .' ~ -,'~ i. __1.1 ~ , . ;,;~"...I''!'''''''~;;:l' , , ~ , Among the Records and Proceedings enrolled in the court of Common Pleas in and for the to No. CUMBERLAND 1272 CD 2001 2000-8814 CIVIL in the Commonwealth of Pennsylvania county of Term. 19 is contained the following: COPY OF DOCKET ENTRY ELAINE MONTCHAL v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING SEE ATTACHED CERTIFIED DOCKET ENTRIES. ..,.- . "~ ' I" ..; litl~~.~ ~-"""'~l.i;-~ ( Commonwealth of Pennsylvania County of Cumberland } SS: I Curtis R. Long P th t . . fa ono ary of the Court of Common Pleas in and for said County. do hereby certify that the foregoing is a full, true and correct copy of the whole record ofthe case therein stated. wherein Elaine Montchal Plaintiff. and Comm. of PA., Dept. of Transportation, Bureau of Driver Licensinq Defendant _, as the same remains of record before the said Court at No, 00- 8 814 of Civil Term. A.D. 19_. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 9th day of Jul A. D.. ~1 . Prothonotary I, George E. Hoffer President Judge of the Ninth Judicial District. comr}O~ed of the County of Cumberland, do certify that Curtls R. Long , by whom the annexed record. certificate and attestation were made and given, and who. in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County. was, at the time of so doing. and now is Prothonotary in and for said County of Pennsylvania in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record. certificate and attestation are in due form of law and made by the op 0 ic . Commonwealth of Pennsylvania County of Cumberland } ss: esidenl Judge I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable George E. Hoffer, P. J . by whom the foregoing attestation was made. and who has thereunto subscribed his name. was, at the time of making thereof. and still is PresidentJudge oft he Court of Common Pleas. Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified: to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set nw hand and affixed the seal of said Court this ytfi ay of J y A.D. I?OOl . Prothonotary ,'"" J: PAGE 00. 2 - 14 1 15 16 17 18 - 24 25 - 28 29 - 31 32 - 50 51 , ...IJ 1,_ >-" ="" !i1IV PYSS10 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-08814 MONTCHAL ELAINE (vs) COMMONWEALTH OF PA DEPARTMENT Page Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 J~dge Assigned: HESS KEVIN A Dlsposed Desc.: ------------ Case Comments ------------- Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Hlgher Crt 1.: Higher Crt 2.: 12/28/2000 9:30 0/00/0000 0/00/0000 1272 CD 200 *******************************************************************************" General Index Attorney Info MONTCHAL ELAINE lS0S LETCHWORTH ROAD CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 1101 SOUTH FRONT STREET HARRISBURG PA 17104 APPELLANT HERSHEY DAVID E APPELLEE *******************************************************************************> * Date Entries *******************************************************************************7 12/28/2000 12/28/2000 1/18/2001 1/18/2001 3/27/2001 4/30/2001 S/2S/2001 S/31/2001 6/13/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - . - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER OF COURT 12/28/00 IN RE HEARING 1/18/01 AT 9:30 A M IN COURTROOM NO 4 (HEARING ON SUPERSEDEAS) HEARING ON MERIS 3/01/01 AT 9:30 AM IN COURTROOM NO 4 KEVIN A HESS JUDGE COPIES MAILED 12/28/00 ------------------------------------------------------------------- ORDER - DATED -1-18-01 - IN RE LICENSE SUSPENSION APPEAL - HEARING SET FOR 03-26-01 AT 9:00AM IN CR 4 - BY THE COURT KEVIN A HESS J COPIES MAILED 01-18-01 ORDER OF COURT - DATED 01-18-01 - IN RE REQUEST FOR SUPERSEDEAS - SUPERSEDEAS IS GRANTED - OPERATING PRIVILEGES IS REINSTATED UNTIL COURT DECIDES THE MERITS OF APPEAL - BY THE COURT KEVIN A HESS J - COPIES MAILED 01-18-01 ------------------------------------------------------------------- ORDER OF COURT - DATED 3/26/01 - THIS MATTER HAVING BEEN CALLED FOR HEARING THE COURT TAKES THE MATTER UNDER ADVISEMENT THE APPELLANT IS GIVEN TEN DAYS WITHIN WHICH TO FILE A MEMORANDUM OF LAW THE DEFT SHALL OF COURSE BE GIVEN THE OPPORTUNITY TO RESPOND PENDING SAM THE SUPERSEDEAS HERETOFORE ENTERED IN THIS MAT~ER IS CONTINUED - BY THE COURT KEVIN A HESS J COPIES MAILED 3/27/01 ------------------------------------------------------------------- OPINION AND ORDER - DATED 4/30/01 - IN RE LICENSE SUSPENSION APPEAL - APPEAL OF THE DRIVER'S LICENSE IS SUSTAINED AND THE SUSPENSION PREVIOUSLY SET TO COMMENCE ON 1/17/01 IS VACATED - BY KEVIN A HESS J - COPIES MAILED 4/30/01 ------------------------------------------------------------------- NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM ORDER DATED 4/30/01 - BY TIMOTHY P WILE ASST COUNSEL IN-CHARGE ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1272 CD 2001 TRANSCRIPT FILED BY KEVIN A HESS J - - - - - - - - - - - - - - LAST ENTRY MISCEI.LANEUJS PAPERS ******************************************************************************** * Escrow Information * * Fees & Debits BeG Bal Pvmts/Adl End Bal * ********************************~*********************************************** 35.00 .50 5.00 5.00 30.00 .00 .00 .00 .00 .00 APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 S.OO 30.00 --..,---------- -- ~-7'} -~.".. '''-'~' -,' <-,,~.,. -, ~~~ ~ ~~-,> ,~ '-.[1 . ~ -""" PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry , . 2000-08814 MONTCHAL ELAINE (vs) COMMONWEALTH OF PA DEPARTMENT Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment. . . . . . .00 Judge Assigned: HESS KEVIN A Disposed Desc. : ------------ Case Comments ------------- Filed........: Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: .00 75.50 75.50 " ,-- ~' ~- .',-, O~ i'iilI:~ .~'"""~, Page 2 12/28/2000 9:30 0/00/0000 0/00/0000 1272 CD 2001 ******************************************************************************** * End of Case Information * ******************************************************************************** ,.~' .' ELAINE MONTCHAL, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00 -1/6 /Lf DUt I COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent LICENSE RECALL APPEAL OLN 10934382 'ORDER OF COURT AND NOW, this ;?~~ day of December, 2000, upon consideration of petitioner'S request for a supersedeas pursuant to ~1550 of the Vehicle Code, and noting that the Department's alleged action is based upon ~1519 of the Vehicle ode, a hearin~ on the supersA'deas only is to be jOcheduled for I7IAi/! r' r: ,?1m / at '1:3D o'clock -.tL.m., in Courtroom N . After a hearing relative to the supersedeas in this the Court finds that the supersedeas is hereby Department shall reinstate petitioner'S operating pursuant to ~1550 of the Vehicle Code until this Court the merits of this appeal. matter, The privileges has decided fA A hearing on the merits of th~s.~peal is hereby sch~duled for flo,rc..h, .,2001, at 'I. () o'clock ~.m., in Courtroom No. ~. Petitioner's counsel is hereby ordered to notify the Department of Transportation's counsel at least sixty '(60) days prior to the scheduled hearing date regarding the hearing on the merits. By The Court: Is-; ~'-(M a ~ J. Distribution: TRUE COpy FROM REOORO 10 T l:J3thllOflY wnereof. I ~ unto 8llt Il'ihlM1o ~~.~~.~ ~. ~tu~~4~' ProthOnotalY i_ , -"il ~ ~~, "l''''''W, ' George Kabusk, Esq., Office of Chief Counsel, PA Department of Transportation, 1101 S. Front St., Harrisburg, PA 17104 David E. Hershey, Esq., 2233 N. Front St., Harrisburg, PA 17110 '" ~ 'Ii_ 1-, - --' -~ ' ~ --""~.- ELAINE MONTCHAL, petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. , COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent LICENSE RECALL OLN 10934382 (") c APPEAi;; r ~~~ ~.- /. ' (..,-,.-- r:~ ~'._ ~,:::: C::1 ~ d) ~-,,) ',"-' LICENSE RECALL APPEAL .- ~2, . ~ by and threugh-he:r< NOW COMES Petitioner, Elaine Montchal, attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this license recall appeal. 1. Elaine Montchal, an adult individual and a Pennsylvania licensed driver, resides at 1505 Letchworth Road, Camp Hill, Cumberland County, PA, 17011. 2. The Department of Transportation maintains a residence address at Riverfront Office Center, 1101 South Front Street, Harrisburg, PA 17104. 3. petitioner received a notice from the Department dated December 13, 2000, indicating that she was being suspended indefinitely asa result of her failure to comply with a driver's exam in accordance with ~1519(c) of the Vehicle Code. (See Exhibit A attached hereto and incorporated herein by reference.) 4. The proposed suspension is illegal, improper, and invalid for some or all of the following reasons: a. ~1519(c) of the Vehicle Code does not authorize the "=~ir' Department to recall the driving privilege of an individual who is medically qualified to safely operate a motor vehicle. b. Petitioner's family physician has deemed her medically qualified to safely operate a motor vehicle. c. Department of Transportation regulations pertaining to recall of operating privileges at 67 Pa.Code 83.1 through 83.5 do not empower the Department to require a special driver's exam. d. A driver's exam cannot be required under 67 Pa.Code !l83.5 without an adverse opinion from a medical doctor. e. Any policies of the Department of Transportation governing special driver's exams are not regulations and therefore do not have the force of law. f. The Department has not published regulations allowing for the Department to require a special driver's exam of a motorist. g. None of the criteria published under the recall provisions of the Department of Transportation Regulations at 67 Pa.Code !l83.1 et seq. can justify the Department's proposed action. ~~~ ~~. - l~," 1.1 h. Judicial review of the proposed recall herein shall be limited to whether Petitioner is competent to drive in accordance with the provisions of the regulations promulgated under ~1517 (relating to medical advisory board). See 75 Pa. C. S. ~1519 (emphasis added) . i. The Department has no information that would substantiate that petitioner has or may have a general medical condition that could affect her ability to drive. (This was the original basis alleged by the Department by mail date September 29, 2000, justifying the Department's request for her to submit to a driver's exam.) See Exhibit B attached hereto and incorporated herein by reference. j. Any request by the Department for a special driver's exam based in whole or in part by reference to Petitioner's age is illegal discrimination of a suspect class in violation of Petitioner's equal protection rights under the 14th Amendment to the federal constitution, related provisions of the Pennsylvania Constitution, and state and federal statutes prohibiting government institutions from discriminating against " ~~; . ii-I L" ..:.. individuals based upon age. k. The Department does not have cause to believe that Petitioner is not physically or mentally qualified to be licensed. WHEREFORE, petitioner prays that This Honorable Court schedule an immediate hearing on the issue of whether or not a supersedeas should be entered pursuant to ~1550 of the Vehicle Code. petitioner prays that a hearing on the merits be scheduled for a later date. Respectfully Submitted, MANCKE, WAGNER, HERSHEY & TULLY Date: /1-.- /-7'---C';C -/ ~ / . #/7' ~/ f: /} ,!/j--.' David~~ Hershey; Esq. 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 I.D. #43092 "' ~""- ~~, ~-~ =- ELAINE MONTCHAL, Petitioner v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent : ~; : . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. LICENSE RECALL APPEAL OLN 10934382 CERTIFICATE OF SERVICE I, David E. Hershey, hereby certify that on this date, a true and correct copy of the foregoing document was served upon all interested parties, by certified mail, addressed as follows: George Kabusk, Esq. Office of Chief Counsel Pennsylvania Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104 Date: I Z:- 0-c"~<? c/ ////]1- David--E. Hershey, Esq. .~ ~"'" -~ - "",-..<<Ic,' VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. 9,1 /7)/14 ----tZ--fJ (] C.JLC1..J./ld'/ '-",I' If ~~-' DATE: 12- /.2 / /2(!N:'YO """"'~-ili.; SuspmedDE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: December 13, 2000 ELAINE MONTCHAL 1505 LETCHWORTH RD CAMP HILL PA 17011 Dear Ms. ELAINE MONTCHAL: You were notified a month ago that you must comply with the Department's request for a driver's test. As a result of your failure to comply with our request, your driving privilege is being suspended indefinitely on 01/17/2001, as mandated by Section 1519(c) of the Vehicle Code. This suspension will remain in effect until you comply with this requirement. If you do not comply with our request before 01/171200 I, you will be required to pay a restoration fee of $25.00 if you possess a Non-Commercial Driver's License or $50.00 if you possess a Commercial Driver's License. A self-addressed envelope is enclosed for your convenience. In order to COmply with this action, you must return all CUlTent Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession, on or before the effective date listed above. If you cannot comply with the requirements stated above, a sworn affidavit stating that you are aware ofthe sanction against your driving privilege must be submitted. When the Department receives your license or affidavit, we will send you a receipt. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of $9.00, payable by check or money order only. You must present two (2) forms of proper identification (e.g., bilth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. When the department receives your license or affidavit, we will send you a receipt. If you do not receive this receipt within IS days, contact the department immediately. Otherwise, you may not be given credit toward serving tIllS sanction. Effective Date of Suspension: 01/1712001, 12:01 a.m. ~ ,:' ~: ':'" ~ I;. .'.,' . , .~, ~.~ <: " . ..' ~ '; . " " ." '.:, " , ~.-: ;.' '.:: " '". , " ,,' ,', ,. ", ",: ; , .'" ,\;' .".' ...., :; ................r.~~ OCT 30 '00 09'44Ai"~mTH BARNEY .' ll1mJ6 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRA.i'./SPORTATION Bureau of Driver LiCensing MililDate: September 29, 2000 , , ' ELAINE MQNTCHAL 'i505 LET~ORTH RD ~HfLL. PAljOl1 Dear'Ms. ELAlli:E MONTCH.-\L: Cnfomtacion submi~ted to the Department indicates that you may have a General Medical . condjtion that could,aEfect/limit your ability to drive. In order to determine if you meet the DeJ?m:tment's llle~ical staml>lrds for driving, it is necessary that you take a driving examination, ThiS' examination must be conducted by a Driver License Examiner at any Driver License Center, You may obtain: a copy of the Pennsylvania Driver's Manual at any Driver License Center, Pl'ease b,e' ,awa,'e ,of the following: , i" You mu~t s~hedule an appointment to take the test. If you want to take the test at any of the Driver License'Centers located in the greater Philadelphia area, you .hould call 1-800-932-4600, If you want to take it at any other ce~ter, you should contact that center for an appointment. Oteck the blue pages of your telephone directory under Transportation for the telepbo~e number. 2, v;Tben y~u tal<e the'test, please bring this notice and a valid insurance eltrd and registration card for the CIlI you will be using for the test. 3, Your exam will include a vision screening, a test of your knowledge of rules of the road.lll1d , ' on-road driving,: . ' , , , 4, Titis letter will aI!ow you three'opportunities to take the test. If you take the test and fail, you , will not be retested on the same day. 5. If,your dJ:ivi9'g p11vilege is 5\1Spended, recalled, or expired, this letter authorizes you to drive only during the'course of the test, When reporting for the exam, you must be accompanied by a Hce~sed dl'i\'el'.' . i ~ /: ,t., . i ". " " " :"'i " , " '. ~;: ,. " .. " ": II , '.J (.,' ", ,.. , , , .. , " '," .' ~ ,', ~ i .ACT 30 :1, I:'" " W'o'l';';''''' '00 09: 44AI" SMITH BARNE'( \ P.3 If YOLl, fail to comply with this request within 30 days fl'om the date of this letter, your driving privilege will b~ suspended. Jfyoti hav.e ,any qu~sdons, please contact the Medical Unit at (717) 787"9664 between the hours of 8:00 a.m. and A:30 p,m, " , Driver License ,it:, Sincerely, ~~,~ Rebecca L. Bickley, Director Bu,eau of Dxive, Licensing 10934382 File Copy Commonwealth Court of Pennsylvania Charles R.. Hostutler Deputy Prothonotary/Chief de,k July 5, 2002 Room 624, Sixth Floor Hurisbw-<. PA 17120 717-255-1650 TO: RE: Montchal v. DOT NO.1272 CD 2001 Trial Court/Agency Dk!. Number: No. 00-8814 Civil Trial Court/Agency Name.~1:l"€!rlalm\;ounty \;ourt ot Comm'6n Plea~: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Original Record Date of Remand of Record: Filed Date July 10, 2001 Description 1 Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed cop:.,~ to t 'Jj:;;r~n Office or t.~e Chief Clerk's office. G-rCJ ~~ . ~ . Commonwealth Court Filing Office O'/"'~ a 'n., ii,"" A OJ/,"~ SiQnature Jl><fc,,- (J. in; I k...- Printed Name '7/rllo "':l.. r . Date ~ ~l. . ~ "' I I _ ~ _, ~ =,...' "~",,,' - '''<<,i ~' . ...,.'",~,,..;,,;'" " ,~;"",.~-; ',-",'0,',,':, " , {f/d CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary ofthe Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ELAINE MONTCHAL v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 2000-8814 CIVIL TERM 1272 CD 2001 The documents comprising the record have been numbered from No.1 to 51 , and attached hereto as Exhibit A is' a list of the documents correspondingly numbered and identified with reasonable definiteness, inclftding with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 7-9-01. . Curti R. g, Prothono Jane H. Sparling, Dpty. An additional COpy of this certificate is enclosed. Please sil!n and date COpy. thereby acknowledl!inl! receipt of this record. cn ',. 1 0," "^ ".., 0 iDOl Date '. //,"1/ Signature & Title . ~JI PlIGE 00. 2 - 14 1 15 16 17 18 - 24 25 - 28 29 -31 32 - 50 51 ~-- I ~.' ",J i L..;..,.. ~,..... 01 PYS510 Cumberland County Prot~onotary's Office Civil Case Inqulry 2000-08814 MONTCHAL ELAINE (vs) COMMONWEALTH OF PA DEPARTMENT c Reference No.. : Case Type.. . . .: APPEAL - LICENSE SUSP Judgment...... .00 JVdge Assigned: HESS KEVIN A Dlsposed Desc. : --------..-- Case Comments -.----..-.... Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: . ',",,"- ar~,,-; Page 12/28/2000 9:30 0/00/0000 0/00/0000 1272 CD 200 *******************************************************************************. General Index Attorney Info MONTCHAL ELAINE 1505 LETCHWORTH ROAD CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 1101 SOUTH FRONT STREET HARRISBURG PA 17104 APPELLANT APPELLEE HERSHEY DAVID E *******************************************************************************. * Date Entries *******************************************************************************~ 12/28/2000 12/28/2000 1/18/2001 1/18/2001 3/27/2001 4/30/2001 5/25/2001 5/31/2001 6/13/2001 - - - . - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER OF COURT 12/28/00 IN RE HEARING 1/18/01 AT 9:30 A M IN COURTROOM NO 4 (HEARING ON SUPERSEDEAS) HEARING ON MERIS 3/01/01 AT 9:30 AM IN COURTROOM NO 4 KEVIN A HESS JUDGE COPIES MAILED 12/28/00 ------------------------------------------------------------------- ORDER - DATED -1-18-01 - IN RE LICENSE SUSPENSION APPEAL - HEARING SET FOR 03-26-01 AT 9:00AM IN CR 4 - BY THE COURT KEVIN A HESS J COPIES MAILED 01-18-01 ------------------------------------------------------------------- ORDER OF COURT - DATED 01-18-01 - IN RE REQUEST FOR SUPERSEDEAS - SUPERSEDEAS IS GRANTED - OPERATING PRIVILEGES IS REINSTATED UNTIL COURT DECIDES THE MERITS OF APPEAL - BY THE COURT KEVIN A HESS J - COPIES MAILED 01-18-01 ------------------------------------------------------------------- ORDER OF COURT - DATED 3/26/01 - THIS MATTER HAVING BEEN CALLED FOR HEARING THE COURT TAKES THE MATTER UNDER ADVISEMENT THE APPELLANT IS GIVEN TEN DAYS WITHIN WHICH TO FILE A MEMORANDUM OF LAW THE DEFT SHALL OF COURSE BE GIVEN THE OPPORTUNITY TO RESPOND PENDING SAM THE SUPERSEDEAS HERETOFORE ENTERED IN THIS MATTER IS CONTINUED - BY THE COURT KEVIN A HESS J COPIES MAILED 3/27/01 ------------------------------------------------------------------- OPINION AND ORDER - DATED 4/30/01 - IN RE LICENSE SUSPENSION APPEAL - APPEAL OF THE DRIVER'S LICENSE IS SUSTAINED AND THE SUSPENSION PREVIOUSLY SET TO COMMENCE ON 1/17/01 IS VACATED - BY KEVIN A HESS J - COPIES MAILED 4/30/01 ------------------------------------------------------------------- NOTICE OF APPEAL TO COMMONWEALTH COURT OF PA FROM ORDER DATED 4/30/01 - BY TIMOTHY P WILE ASST COUNSEL IN-CHARGE ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1272 CD 2001 ------------------------------------------------------------------- TRANSCRIPT FILED BY KEVIN A HESS J mSCELLANEXXlS--PlWERS" - - - - LAST ENTRY *******************************************************************************~ * Escrow Information * * Fees & Debits BeG Bal Pvmts/Adl End Bal * ******************************************************************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 5.00 30.00 35.00 .50 5.00 5.00 30.00 .00 .00 .00 .00 .00 -'-.'f";;---."--.- ~~... ~. ~~~~~ "_ l ~i i __ l~ , ~ .. PYS510 cumber~, d,County Prot~onotary's O~,,': ice 'IW.Iv:Ll Case Inqu:Lry \)J MONTCHAL ELAINE (vs) COMMONWEALTH OF PA DEPARTMENT 2000-08814 Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: HESS KEVIN A Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2,: .00 75.50 75.50 ~-""""''''',.,'''''''' Page 2 12/28/2000 9:30 0/00/0000 0/00/0000 1272 CD 2001 ******************************************************************************** * End of Case Information * ******************************************************************************** TRUE t"Opy FROM R~CORO In Testimony whoreof, I h8t8 unto set my hand ~ the soal 01 said ~t CarIiSI8. S';) 0 t Fhl ' '" otarv _ [-ld J . Ii J ~- tj Iii l~L jj I' , " ,-~-,- ',0".-,";-- -,;-:.Ii~" .> . "J.lI!:r-~ - -!i>' CD o Among the Records and Proceedings enrolled In the court of Common Pleas in and for the to No. CUMBERLAND 1272 CD 2001 2000-8814 CIVIL in the Commonwealth of Pennsylvania county of Term. 19 is contained the following: COPY OF DOCKET ENTRY ELAINE MONTCHAL v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING SEE ATTACHED CERTIFIED DOCKET ENTRIES. II ti1' :il ~~ Iit'~-IJ "1. ,jl-~ fir" ,/" c o Commonwealth of Pennsylvania County of Cumberland } SS: I. Curt is R. Long , Prothonotary of the Court of Common Pleas in and for said County. do hereby certify that the foregoing is a full, true and correct copy of the whole record ofthe case therein stated, wherein Elaine Montchal Plaintiff. and Comm. of PA., Dept. of Transportation, Bureau of Driver Licensinq Defendant _. as the same remains of record before the said Court at No. 00-8814 of Civil Term, A.D. 19_. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 9th day of Jul A. D.. OOQl . Prothonotary I, George E. Hoffer President Judge of the Ninth Judicial District. comllo~ed of the County of Cumberland, do certify that CurtJ.s R. Long , by whom the annexed record. certificate and attestation were made and given, and who. in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing. and now is Prothonotary in and for said County of Pennsylvania in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record. certificate and attestation are in due form of law and made by the op 0 IC . Commonwealth of Pennsylvania County of Cumberland } ss: sident Judge I. Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County. do certify that the Honorable George E. Hoffer, P. J . by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas. Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 9th ay of J y A.D. I~OOl . Prothonotary .j'0,"-i:l,: 'rfj'.WMfi:~~~~-ijj~,~.~.t!i~~:-,(,~-~i--'jjjlt:r-j:i+iltJl~ri:t'ItJ.JI;JU;':- 'lii&Jll1Lljn;o;..,,;:;11;' "~ll'llitU(lCl" lo...cl.llu!~~ 'it ':1,"[1 (\,,;]nlit~~:~"j1l. (01111'. _I W~ . '" (') '" 0 'T1 Z Z " 0 0 " ~ p p ;; ~ 3 ?: 0 ~ 3 ~ ~ " Q. t"l "' ~ " t"l Q. :: :!1 -= " : Q. < "'l "" - " t"l ~ ~ " " ~ :l:I t"l -0 (') ..., ..., " 0 0 " " ;. :l:I ~ ~ 0 " 3 3 0 "" (') 0 !i I 0 "" "" " I I '" " " ~ ,.. '< "~~... ..1 o Cc ~~.."... ~-." ELAINE MONTCHAL, Petitioner : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. O()- ~81Lf C{'()~ I COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent LICENSE RECALL APPEAL OLN 10934382 ORDER OF COURT AND NOW, this 0(8'~ day of December, 2000, upon consideration of petitioner's request for a supersedeas pursuant to ~1550 of the Vehicle Code, and noting that the Department's alleged action is based upon ~1519 of the Vehicle Code, a hearing on the supersedeas only is to be scheduled for ~/l1f- I~ 0< 07) I , at <:;;.30 o'clock -3.....m., in Courtr om No. ~__' After a hearing relative to the supersedeas in this matter, the Court finds that the supersedeas is hereby The Department shall reinstate petitioner's operating privileges pursuant to ~1550 of the Vehicle Code until this Court has decided the merits of this appeal. ,;7 on the merits of this appeal is hereby scheduled for , 2001, at q: 6() o'clock ~.m., in Petitioner's counsel is hereby ordered to of Transportation's counsel at least sixty scheduled hearing date regarding the hearing Courtroom No. notify the Department (60) days prior to the on the merits. By The COU;) (Jf/es /Ila/Jut /J - ;(g--oO Distribution: 1i'loill'i!i!lli:'< J. /. T'~;Ol~ffi!'l~Jli0~!iill~!;;::.~ (:J '.'-,:)!/t':\/ r, ,nl 1'1' D~~ J..J !,~.(.;? EJ t~n J[J: ? ') .~, .... CU'N'c t"ltJt;i--:Li'~ :'1"-' "'''''''1 P'eN 'oJ I I iU"'f\' C, (f"Y,'11 ,oV U; ( 'oJ ,-V/'v\J14 ' JHlr"'-lJiijC .!ill .SE:),.-'t~~~,"~ll'F';!!;,--~Ii"':k ,c';!:,cj!..'-i:)'jjii~~.1iJf'"'~il'#?f;:-;:q;:"'c.,"F,"~"'.!iiY;T';' ,~;-;:"'~ ).-"'''~~0!>I.E-rtil'i''[w'"l'!?lw;1}.F -'~.=~~ ." ~-,-- \.J.J George Kabusk, Esq., Office Transportation, 1101 S. David E. Hershey, Esq., 2233 dLI "" -, ""',: ~ 8 of Chief Counsel, PA Department of Front St., Harrisburg, PA 17104 N. Front St., Harrisburg, PA 17110 ,,', ltTh--~ ). - , , 'JI - ~, '---s ;;'.~,_; 8 ']' '( , ~oo-, . <' ELAINE MONTCHAL, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. f>tJ. '38 /'( COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent : LICENSE RECALL APPEAL OLN 10934382 LICENSE RECALL APPEAL NOW COMES Petitioner, Elaine Montchal, by and through her attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this license recall appeal. 1. Elaine Montchal, an adult individual and a Pennsylvania licensed driver, resides at 1505 Letchworth Road, Camp Hill, Cumberland County, PA, 17011. 2. The Department of Transportation maintains a residence address at Riverfront Office Center, 1101 South Front Street, Harrisburg, PA 17104. 3. Petitioner received a notice from the Department dated December 13, 2000, indicating that she was being suspended indefinitely as a result of her failure to comply with a driver's ex~m in accordance with ~1519(c) of the Vehicle Code. (See Exhibit A ~ttached hereto and incorporated herein by reference.) 4. The proposed suspension is illegal, improper, and invalid for some or all of the following reasons: a. ~1519(c) of the Vehicle Code does not authorize the 3, "'~,"",;,,~~" ~ -~~" ." II ,~. _c,' ~-=-"~-" ,. ~ """"""'~;" <' .,;.>1' \9 o Department to recall the driving privilege of an individual who is medically qualified to safely operate a motor vehicle. b. Petitioner's family physician has deemed her medically qualified to safely operate a motor vehicle. c. Department of Transportation regulations pertaining to recall of operating privileges at 67 Pa. Code 83.1 through 83.5 do not empower the Department to require a special driver's exam. d. A driver's exam cannot be required under 67 Pa.Code ~83. 5 without an adverse opinion from a medical doctor. e. Any policies of the Department of Transportation governing special driver's exams are not regulations and therefore do not have the force of law. f. The Department has not published regulations allowing for the Department to require a special driver'S exam of a motorist. g. None of the criteria published under the recall provisions of the Department of Transportation Regulations at 67 Pa.Code ~83.1 et seq. can justify the Department's proposed action. 4-- -~ ... ~ I " ~' >, ~ o "~- "' .""'''>'''''''''''''''''''~-Jij~*", " h. Judicial review of the proposed recall herein shall be limited to whether Petitioner is competent to drive in accordance with the provisions of the regulations promulgated under ~1517 (relating to medical advisory board). See 75 Pa.C.S. Sil519 (emphasis added). i. The Department has no information that would substantiate that Petitioner has or may have a general medical condition that could affect her ability to drive. (This was the original basis alleged by the Department by mail date September 29, 2000, justifying the Department's request for her to submit to a driver's exam.) See Exhibit B attached hereto and incorporated herein by reference. j. Any request by the Department for a special driver'S exam based in whole or in part by reference to Petitioner's age is illegal discrimination of a suspect class in violation of Petitioner's equal protection rights under the 14th Amendment to the federal constitution, related provisions of the Pennsylvania Constitution, and state and federal statutes prohibiting government institutions from discriminating against 6. ""'l'~<" .1..;-- , _II I'l 1: '--'-< ~ J::J'\W.IIIIMi'!hP- (0 individuals based upon age. k. The Department does not have cause to believe that Petitioner is not physically or mentally qualified to be licensed. WHEREFORE, Petitioner prays that This Honorable Court schedule an immediate hearing on the issue of whether or not a supersedeas should be entered pursuant to ~1550 of the Vehicle Code. Petitioner prays that a hearing on the merits be scheduled for a later date. Respectfully Submitted, Date: /1-.- ,)-7-c:?7 MANCKE, WAGNER, HERSHEY & TULLY L/f:1?-/ David E. Hershey, Esq. 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 I.D. #43092 Co- ,- ~~j.~=~ .~J I , I 4 - -A- "tlillllJ'" '<' 0 ': ~, '-~U " u o ELAINE MONTCHAL, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent : LICENSE RECALL APPEAL OLN 10934382 CERTIFICATE OF SERVICE I, David E. Hershey, hereby certify that on this date, a true and correct copy of the foregoing document was served upon all interested parties, by certified mail, addressed as follows: George Kabusk, Esq. Office of Chief Counsel Pennsylvania Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104 Date: fZ:-'J--/~C? c{ }If/)2- David E. Hershey, Esq. 7 .__'~1 ~ ~ - _.~, - " ,,11, Jr. ~~, - o VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. section 4904, relating to unsworn falsification to authorities. ~UM~ DATE: 12../:2 / /20(j0 ~~ ~iilil ........~~ y , ~ , - ~ ,--j' ~" 8 ~,.~, &~-"""'~i_ " SuspmedDE COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: December 13, 2000 ELAINE MONTCHAL 1505 LETCHWORTH RD CAMPHILL PA 17011 Dear Ms. ELAINE MONTCHAL: You were notified a month ago that you must comply with the Department's request for a driver's test. As a result of your failure to comply with our request, your driving privilege is being suspended indefinitely on 01/1712001, as mandated by Section 1519(c) of the Vehicle Code. This suspension will remain in effect until you comply with this requirement. If you do not comply with our request before 01/1712001, you will be required to pay a restoration fee of $25.00 if you possess a Non-Commercial Driver's License or $50.00 if you possess a Commercial Driver's License. A self-addressed envelope is enclosed for your convenience. In order to cOll;lply with this action, you must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession, on or before the effective date listed above. If you cannot comply with the requirements stated above, a sworn affidavit stating that you are aware of the sanction against your driving privilege must be submitted. When the Department receives your license or affidavit, we will send you a receipt. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of $9.00, payable by check or money order only. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. When the department receives your license or affidavit, we will send you a receipt. If you do not receive this receipt within 15 days, contact the department immediately. Otherwise, you may not be given credit toward serving tins sanction. Effective Date of Suspension: 01/17/2001, 12:01 a.m. /0 ~--~" ~ ~ Ii. , .;, .- " ',:' " , - . ~.~: l" ;,:: " ", : ,,' .', " ." : ' ,'" :.,; .\:' ,. , . ~', - ~ II .Ie. ~ o ~-, " OCT 30' '00 0,9:MRt>1"~ORNEY " '.' . . mm16 ~~:, "~ , C'c COMMONWEALTH OF PENNSYLVAmA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail'Date: September 29, 2000 ':, :.'( , ',' ELAlNEMONTCHAL 1505 LETQWORTH RD CAMP~, PA17011 Oear'Ms. ELAINE MONTCHAL: [nfoonation submHted to the Department indicates that you may have a General Medical , cond~tion that c1;>uld ,at"fect/limit your ability to drive. In order to detennlne if you meet the Departnwnt'~ l\t~ical S(llmlar'ds for driving, it is necessary that you take a driving examination. ThiS' e~ination must be conducted by a Driver License Examiner at any Driver License Cente!', You -may obtain: a copy of the Pennsylvania Driver's Manual at any Driver License Center, Please b~,aWII).'e,ofthe following; , .i , You nwSt sqliednle an appointment to take the test. If you want to take the test at any of the Driver License'Centers located in the greater Philadelphia area, you should call1-SOO-932-4600. ff you want to take it at any other center, you should contact that center for an appointment. Check th~ blue pages of your telephone directory under Transportation for the telepbone number. 2, When yqu tal<e thee test, please bring this notice and a valid insurance card and registration card for the CI)r YOl~ will be using for the test. 3. Your exam, will include a vision screening, a test of your knowledge of rules of the road, and ,on-mad driving:: ' ' . 4, This letter will allow you three opportunities to take the test. If you take the test and fail. you , will not be retested on the same day. ." 5. If your dfivil1'g privilege is suspended, recalled, or expired, this letter authorizes you to drive only during 'the- course of the test. When reporting for the exam, you must be accompanied by a Hce~s~d dii~eJ'.' . ~'~""",""""" /1. ,,:or )r 30' :00 /. " / l ~ ;~ .~ , , ';'J L' ., .f:; ". '.. , , 'c. , , ", ,'. ." ,.', , , :( 'J. " , " ,- : '. " ': " ',' " . ,', , ',- !" : c. " , " , , ,,- .. >; " , ,:,.11 ,.... P.3 09:44A0 ~M~RNEY . I,~ If you, fail to comply with this ,<:quest within 30 days from the date of this letter, your driving privlle ge will b~ suspended. , ., If yoti hav.e ,any. qu(\sdons. please contact the Medical Unit at (717) 787 -9664 between tM hours of 8;00 a',m. and -4:30 p.rn, Driver License,#:c Sincerely, ~~.~ Rebe~a L. Bici;!ey. Director B\l1"eau of Driver Licensing 10934382 .' , ,'. ~'" Hi" /3 , -"-",,, .~ , - "" - "- ~'-' ~'" "" ;'-","; - r ~i'h,;I, o o ELAINE MONTCHAL, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 00-8814 CIVIL COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee CIVIL ACTION - LAW IN RE: LICENSE SUSPENSION APPEAL BEFORE HESS. J. OPINION AND ORDER Pending before the court is the appeal of petitioner, Elaine Montchal, from the recall of her driver's license. The recall resulted from the failure of Ms. Montchal to comply with the request of the Department of Transportation that she undergo a driver's test. An earlier notice from the Department indicated that information had been provided suggesting that she had a "General Medical Condition that could effect/limit" her ability to drive. This notice was a reference to a report from the Lower Allen Police Department indicating in pertinent part: Reason for stopping driver - reportable crash. Physical or a mental limitations - glasses/80 years old. Reason for requesting examination - crashed into tree, single vehicle accident. Also received call from neighbor about her driving. This information was based upon an alleged incident on September 5, 2000, and was received by the Department of Transportation on September 18, 2000. The recall notice in this case was issued on December 13, 2000, and by its terms is based upon Section 1519( c) of the Vehicle Code. A timely appeal was filed in this case. In addition, a supersedeas hearing was held at which time a stay of the suspension was granted. At the /1 -, d - --,j' ,L _~ " _-_~_" - c- .' -_ ~" - -'-'-_~-_"",;.~'h_~o;,;"",,_,,",,~, ~, ~:*' 00-8814 CIVIL o o supersedeas hearing, the petitioner offered a letter from Dr. 1. Stephen Snoke which indicated in pertinent part: I examined Elaine Montchal on December 22 , 2000 to determine her physical and mental capability to operate a motor vehicle. Her physical exam revealed no physical impairments. Her score on the standard mini mental state exam was 26 which indicates no dementia or significant mental impairment. It is my medical opinion based on this exam and with a reasonable degree of medical certainty that Elaine Montchal is able to operate a motor vehicle safely. This case presents an issue which appears to be of first impression; namely, whether the Department of Transportation may recall the operating privilege of any person based on a recommendation from a local police department where there is no medical report or medical testimony suggesting that the motorist is not competent to drive. Put into the context of this case, the question is whether or not the Department may compel the motorist to undergo re- examination for her license solely because she was involved in a single-vehicle accident and where the police department "received call from neighbor about her driving." We are satisfied that it cannot. As authority for its power to require re-examination in this case, PennDOT points to a Statement of Policy appearing at 67 Pa. Code 82.1 et seq. It is true that Section 82.8 of this Statement of Policy makes reference to the fact that, in addition to physician reports, hundreds of reports are received annually from police departments and concerned family members regarding individuals who may have a medical condition that affects the individual's ability to drive. This section goes on to discuss the responsibilities of the medical unit of the Department of 2 ,~D ,,'.1-1 -" , ' ~;", 0 ,_ , ".'"""" 00-8814 CIVIL o A.. W Transportation in evaluating these reports. Language particularly appropriate to this case appears at 67 Pa. Code 82.8(b )(2): . . . When the report is from a friend or neighbor, additional precautions are taken. The Medical Unit recognizes that while some reports that come from these individuals are made out oflegitimate concern, others may be the result of malice. Neighbors occasionally have disagreements that result in animosity and hostility. On the other hand, for those individuals with no family, neighbors are often the primary caregiver. The Medical Unit takes every possible safeguard to ensure that these reports are legitimate. Nowhere in the record of this suspension appeal is there an indication that the Medical Unit made even a cursory inquiry let alone took "every possible safeguard" to insure that the call from Ms. Montchal's neighbor about her driving was legitimate. The need for such an investigation should appear apparent as, without it, the Department of Transportation could order any citizen of the Commonwealth to undergo a driver's re-examination upon the unverified report of anyone. It is a principle, so well established as to not require citation, that driving is a privilege and not a right. Nonetheless, it is difficult to conceive that the privilege is so tenuous as to be at the mercy of the kind of report that was submitted in this case. In any event, we agree with the petitioner that the Statement of Policy set out in Chapter 82 of Title 67 of the Pennsylvania Code is merely interpretive and it is not binding on this court. The difference between a regulation and a statement of policy is that a regulation is the exercise of delegated power to make law and is binding on a reviewing court like a statute, whereas a statement of policy is, as we have said before, interpretive and not binding. Pa.. Dept. of Health v. North Hills Passavant Hosp., 674 A.2d 1141 (pa.Cmmwlth. 1996). 3 ,JI ,'. , "-- .I~I ' ", "~'--*,,~.~~.--' - ",',. ,,-,.,'- ""-':" 00-8814 CIVIL o o The attempted recall of Ms. Montchal' s driving privileges, in this case, is based, according to the Department, on 75 Pa.C.S.A. 1519. That section reads, in pertinent part, as follows: (a) General rule. - The department, having cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, may require the applicant or driver to undergo one or more of the examinations authorized under this subchapter in order to determine the competency of the person to drive. The department may require the person to be examined by a physician or a licensed psychologist designated by the department or may require the person to undergo an examination by a physician or a licensed psychologist of the person's choice. If the department designates the physician or licensed psychologist, the licensed driver or applicant may, in addition, cause a written report to be forwarded to the department by a physician or a licensed psychologist of the driver's or applicant's choice. Vision qualifications may be determined by an optometrist or ophthalmologist. The department shall appoint one or more qualified persons who shall consider all medical reports and testimony in order to determine the competency of the driver or the applicant to drive. ( c) Recall or suspension of operating privilege. - The department shall recall the operating privilege of any person whose incompetency has been established under the provisions ofthis chapter. The recall shall be for an indefinite period until satisfactory evidence is presented to the department in accordance with regulations to establish that such person is competent to drive a motor vehicle. The department shall suspend the 4 ~). II I ,---",' " . c-_ ~",- "~.,,, ,C>' --~ 00-8814 CIVIL o o operating privilege of any person who refuses or fails to comply with the requirements of this section until that person does comply and that person's competency to drive is established.... (Emphasis added). As its authority to require a driver's examination in this case, the department points to the first sentence of subsection (a) above which purports to allow the department to require one or more "of the examinations authorized under this subchapter." Since the driver's test appears in the "subchapter," PennDOT argues that its authority to require that test is obvious. The department fails, we believe, to put this testing language in context. Subsection (a) above goes on to , specifically outline the physical and mental examinations which may be required. It then goes on to provide for the appointment of one or more qualified persons to make a determination concerning the competency of the driver. That determination is expressly based upon medical reports and testimony. Provisions for the creation ofaMedical Advisory Board appear at 75 Pa.C.S.A. 1517. That Board is vested with the express authority to review regulations concerning physical and mental criteria relating to the licensing of drivers. 75 Pa.C.S.A. 1517(b). Regulations promulgated by the Medical Advisory Board are reproduced in the Pennsylvania Code at 67 Pa. Code 83.1 et seq. The Department of Transportation's authority to request a special driver's exam can be found at section 83.5. This section contains an extensive list of medical and mental conditions as well as alcoholism and drug addiction. None of the first eight subsections appear to have application to this case. The ninth and fmal category would authorize a special driver's exam where there was "another condition which, in the opinion of the examining licensed physician, could interfere with the ability to control and safely operate a motor vehicle." 67 Pa. 5 J. 3, ,,",-- ;/ ' -, ~'-?-""'.;"';".;c, -_~ 00-8814 CIVIL o . Code 83.5(a)(9). There is no evidence in the record of this case indicating that the department received any information from a licensed physician that Ms. Montchal had a condition which interferes with her ability to operate a motor vehicle. We are, therefore, constrained to agree with the petitioner that the recall of her driver's license in this case is improper. ORDER AND NOW, this :Joo<( day of April, 2001, the appeal of Elaine Montchal from the suspension of her driver's license is SUSTAINED and the suspension previously set to commence on January 17,2001, is VACATED. BY THE COURT, David Hershey, Esquire For the Appellant ~~~~ rt. ",./ George Kabusk, Esquire For PennDOT :rlm 6 '~"~"""wi-': J..4- ~ 'II I , ,-, ~ ='~-'~:a' '.'=-" , c ""-.'. 'W COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHYP. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 ELAINE MONTCHAL, Appellee vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant NO. 00-8814 Civil Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on April 30, 2001. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. ~-f M& TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 do- , "" "~ ~~~ pYS510 2000-08814 I~, "".--1- I . , ~ " 111;'11......,...,.""",1:4""",,,,,,,,,, MONTCHAL CUmber~. .~d,county Prot~onotary's VV1l Case Inqulry ELAINE (vs) COMMONWEALTH OF PA 1 Office o DEPARTMENT Page Reference No..: Case Type.....: APPEAL - LICENSE SUSP Judgment......: 00 Judge Assigned: HESS KEVIN A Disposed Desc. : ------------ Case Comments ------------- 12/28/2000 9:30 0/00/0000 0/00/0000 Filed........: Time......... : Execution Date Jury Trial. . . . D~sposed Date. Hlgher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info MONTCHAL ELAINE 1505 LETCHWORTH ROAD CAMP HILL PA 17011 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 1101 SOUTH FRONT STREET HARRISBURG PA 17104 APPELLANT HERSHEY DAVID E APPELLEE ******************************************************************************** * Date Entries * ******************************************************************************** 12/28/2000 12/28/2000 1/18/2001 1/18/2001 3/27/2001 4/30/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER OF COURT 12/28/00 IN RE HEARING 1/18/01 AT 9:30 A M IN COURTROOM NO 4 (HEARING ON SUPERSEDEAS) HEARING ON MERIS 3/01/01 AT 9:30 AM IN COURTROOM NO 4 KEVIN A HESS JUDGE COPIES MAILED 12/28/00 ------------------------------------------------------------------- ORDER - DATED -1-18-01 - IN RE LICENSE SUSPENSION APPEAL - HEARING SET FOR 03-26-01 AT 9:00AM IN CR 4 - BY THE COURT KEVIN A HESS J COPIES MAILED 01-18-01 ------------------------------------------------------------------- ORDER OF.COURT - DATED 01-18-01 - IN RE REQUEST FOR SUPERSEDEAS - SUPERSEDEAS IS GRANTED - OPERATING PRIVILEGES IS REINSTATED UNTIL COURT DECIDES THE MERITS OF APPEAL - BY THE COURT KEVIN A HESS J - COPIES MAILED 01-18-01 ------------------------------------------------------------------- ORDER OF COURT - DATED 3/26/01 - THIS MATTER HAVING BEEN CALLED FOR HEARING THE COURT TAKES THE MATTER UNDER ADVISEMENT THE APPELLANT IS GIVEN TEN DAYS WITHIN WHICH TO FILE A MEMORANDUM OF LAW THE DEFT SHALL OF COURSE BE GIVEN THE OPPORTUNITY TO RESPOND PENDING SAM THE SUPERSEDEAS HERETOFORE ENTERED IN THIS ,MATTER IS CONTINUED - BY THE COURT KEVIN A HESS J COPIES MAILED ~J.27/01 -----------------------------------------------------~~------------ OPINION AND ORDER - DATED 4/30/01 - IN RE LICENSE SUSPENSION APPEAL - APPEAL OF THE DRIVER'S LICENSE IS SUSTAINED AND THE SUSPENSION PREVIOUSLY SET TO COMMENCE ON 1/17/01 IS VACATED - BY KEVIN A HESS J - COPIES MAILED 4/30/01 . . - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits BeG Bal Pvmts/Adi End Bal * ******************************************************************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 45.50 45.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** 1 ( '^-,If ~" -~ ~,I, " .~ o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 ELAINE MONTCHAL, Appellee vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant '-II. 1_ '-~",,'- ,-~-'- 4 " } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A NO. 00-8814 Civil Request for Transcript A notice of appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the transcript. . t.4 f. ~ TIMOTHY P. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 A7 _U I, ~ ,"- '';',",,~~,,". #'-- o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 ELAINE MONTCHAL, Appellee vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant NO. 00-8814 Civil Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements ofPa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 David E. Hershey, Esquire Att. for Appellee Montchal 2233 North Front Street Harrisburg, P A 17013 ~f.)4 TIMOTHY P. WILE Attorney for Department of Transportation Date: May 23, 2001 )J ii!r'dj"""'.dJ-#'M~I"gl!.!M'iI~~~A-!-'~""","~'iIG~lllMlJl>\ii'L,,;,$iWb~~~_'<'''''''-~M;t:~~:aj:~ilii1"~'M'n~'-"-~ ,,',,"'" ^~,_ _,,">'" e,,' ,*_~"~, ^ '-' ~ ~" '~,,~- .,~ 'ii!i:.# ~" '" ",' " "'" '- \ ,:~ ~. ,t ""l"-'~, ~T'" ., '. ~lI. 1\.~ \ ", ~"<__o" _^~ ,~, "_,,_~ ""_,,^, ~"~_..'" r\ I~ @J~fD iJ - ~ '<>,......- - &' ...I'\ f'. c.....'.! Do 6 . I ~.~'" - ,-' ", . -fjJ!lilrL-Il!:'IIOO';Hl' 0 Co. .-- C :--) ;."'" n l)r',~: - ,.,-,. [1Jtf ..: ,'~ ..:; ,', -: -?~ f"'-J 03" -' c;, r;::c: )::--:: --~ .2: :'0..:;1 ):;S.~: Cd ~.. 2: -, .~ -< .," ~ (::J ..,. ,.-__c_" ~= ..ei' ~ ~,~ l~J"c c (JDu-e 7- 4 - o( Commonwealth Court of Pennsylvania May 30, 2001 RE: Montchal v. DOT No.: 1272 CD 2001 Agency Docket Number: No. 00-8814 Civil Filed Date: May 25, 2001 Notice of Docketing Appeal A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. RAP. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Harold Cramer, Esq. David E. Hershey, Esq. Timothy Peter Wile, Esq. Party Name Bureau of Driver Licensing Elaine Montchal Bureau of Driver Licensing Party Type Appellant Appellee Appellant f} " (J\.tJ, j"l>f"'" ~ 1 _. ~",.....LJ I _-~w",' Ad(l)ss all written communications to: CD Office of the Chief Clerk Commonwealth Court of Pennsylvania P.Oc Box 11730 Harrisburg, PA 17108 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor South Office Building Harrisburg, PA 17120 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Comonwealth Court shall exit only from the Harrisburg Office. 30. /.-- o -"'" "- ~ ~ - .".- COMMONWEALTH OF PENNSYLVANIA ,.' DEPARTMENT 0 F TRANSPORTATION' OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHYP. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 I d 1~ t:..:0 ,;}-CJo I vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA ELAINE MONTCHAL, Appellee NO. 00-8814 Civil S2 co ~ z _~"" i~ ~f~ "ca" fllll! =< 'Z:l' ...... ,,,,,C- I....... ~~?: <.Ii ~o --:J ~r-, .;/=-":t: .. ,~ (')".~. ,rPc :.,~ Z ':f1 :<: 0 C -n .~ ;', ,- COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRNER LICENSING, Appellant ., '-~, -, ",~ ; ~...::C) '1-"';'", -',,:;:--'-n (Sr~ --1 > ~J :< Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on Apri130, 2001. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. .VJ I) ~ '\.L'/J JI~'~i:- ~KI TAUE l,Opy FRONt R€CO~O !ll T~On.y~~.1 ~~=m~~\anl1 ,:I1i. lift said Coo .., . .... d.. froj. t,~. " ~-:-\->' '^,,' . TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section' Riverside Office Center - Third Floor , 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) . "4\-- - - .,.-. .. -,-.,"".- 3l. ~~":H'm,*ii!;~~~_;&'Hl "'~;c!\'Jil,inf&f'~_"'d~c;;'",,:i'>;~f"';;JIW~~jik.,~lif;ti,;;'.'i --,,' ,'e '..."'''''' ~ .~~ '1rrliiwiI_dIiJllljlflllft'I['~~~~-""'. J_~_,_,,, ""'.......~ 'W ~, ~~~~ C) 5:; ~,--e ,:f[' " : -;,~ c.) JT(~-, -, ~.:~ (.,~ ~._'-~~ --j '"<; -'" J:':) :''1 t,) a '-. ;;-,.. '--0'- "I I" l I l H o "1 ~ " ' '. ~"' . . o ELAINE MONTCHAL, Appellant V. ,,_~o !1l:1Iii4Oi;)~'~, (I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee 00-8814 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS APPEARANCES: DAVID HERSHEY, Esquire For the Appellant GEORGE KABUSK, Esquire For PennDOT Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, March 26, 2001, in Courtroom Number 4. 3"L &J " ~, ~ """ _i=~fFiCE "-"",Unj"'RV ." \;~) f\ I 0/ 111\1 I" ..J,:I, ,J nl_l ill'l 8: ':in ')y CUi'Vj13~dLk~O COUNTV PeNNSYLVANIA I I, o o 1~ n~, & _ _~" _"""^ _fl<'tr;li'flf~~~~"\W!>1IiIFf'm;Ij;<ijl1";lf'mt'1"i"-,,"I'i~jl!i\"~!}ii~*n.!~.I~'~+-i"'f'~I-l1WjJ;1'i'] '7}~~ . ~[ '"'--"-'---"--"'~-'~' illli:""_I' . o .. VfriI . 1 THE COURT: Good morning. 2 MR. KABUSK: Good morning, Your Honor. May 3 it please the Court, this is case number 2000-8814, 4 Elaine Montchal versus Commonwealth of Pennsylvania, 5 Department of Transportation, Bureau of Driver Licensing. 6 What has been marked as Commonwealth's 7 Exhibit No. 1 is under seal and certification. It consists 8 of five sub-exhibits. This is an appeal from a letter -- a 9 notice dated December 13, 2000, to the motorist, informing 10 her that she was notified a month ago that she must comply 11 with the Department's request for a driver'S test. As a 12 result of her failure to comply with that request, her 13 driving privilege was being suspended indefinitely on 1/17 14 of 2001, as mandated by Section 1519(c) of the Vehicle 15 Code. This suspension will remain in effect until she 16 complies with this requirement. 17 And if I may turn Your Honor's attention to 18 the Department's documents, I will start with sub-Exhibit 19 No.5 -- excuse me, sub-Exhibit No.4, which started this 20 matter. 21 Sub-Exhibit No. 4 is a local police 22 recommendation for a special medical driver exam, date of 23 incident 9/5/00. You would note that that's a local police 24 form submitted by the Lower Allen Township Police 25 Department regarding a driver, Elaine C. Montchal. And the 2 ~) "= ~. - >--,-,< - ~ :....'~I"". c o > 1 reason for requesting an examination is noted as crashed 2 into tree, single vehicle accident. Also received call 3 from neighbor about her driving. And the reason for 4 stopping driver was reportable crash, physical or mental 5 limitations were noted as glassy/eighty year old. 6 I would then turn your attention to 7 sub-Exhibit No.3, a letter dated 9/29/00 to the defendant 8 requiring a driver exam. Sub-Exhibit 3 was dated September 9 29th, 2000, which informed the motorist, information 10 submitted to the Department indicates that she may have a 11 general medical condition that could affect/limit her 12 ability to drive. In order to determine if she meets the 13 Department's medical standards for driving, it is necessary 14 that she take a driving examination. The examination must 15 be conducted by a Driver License Examiner at any Driver 16 License Center. And then it gives her directions what she 17 must do in order to comply with the Department's request 18 for a driving exam. 19 Then sub-Exhibit No.2 is Report of Driver's 20 Exam dated 10/25 of 2000. You will note that on there the 21 exam results are as follows. She passed the vision. 22 However, under traffic signs it is marked as failed. Under 23 laws it is marked as failed. And under driving it is 24 marked as failed. Under the points faults, you would note 25 that the examiner circled striking, markers. 3 64--' ~.~ . _Ii I. L,-iil"~~'- , o 41 > 1 The examiner wrote some comments there. 2 Some of those read back no look. Backs without ever using 3 mirror. Squealed tires starting. And the examiner wrote, 4 quote, I didn't know I hit anything. And she had failed 5 that exam. 6 And then I would turn your attention to 7 sub-Exhibit No. 1 is Official Notice of Suspension 8 noncompliance, dated and mailed 12/13 of 2000, effective 9 1/17 of 2001, which notifies her that she failed to comply 10 with the Department's request that she take a driving exam. 11 And as a result she is suspended indefinitely. 12 I move for the admission of what's been 13 marked Commonwealth's Exhibit NO.1. 14 THE COURT: I assume there is no objection? 15 MR. HERSHEY: Judge, I have reviewed that. 16 I have no objections. I would like to argue one 17 clarification on the DOT's exhibit. 18 I note that there is a medical restriction 19 on the license, number one, which is on page four of DOT's 20 exhibit. And I would submit that the physical or mental 21 limitation -- 22 23 24 25 THE COURT: Where are you talking about? I am not following you. MR. HERSHEY: THE COURT: Page four. Page four. 4 ~<;; " _"I 1 I~~ - . . 'U o o 1 MR. HERSHEY: The pages have been numbered 2 at the bottom. 3 THE COURT: I have a number four, which is 4 the local police recommendation. 5 6 MR. HERSHEY: Yes, Your Honor. THE COURT: Is that what we are talking 7 about? 8 MR. HERSHEY: Yes. Under physical or mental 9 limitations, I don't know if that's glassy or glasses. Ms. 10 Montchal does wear glasses. She does have a restriction on 11 her license. 12 THE COURT: Glasses would make more sense. 13 Do you know what that is? 14 MR. KABUSK: I would stand corrected. That 15 is probably glasses. That is probably what that refers to. 16 MR. HERSHEY: But I have no objections to 17 the exhibit, Your Honor. 18 THE COURT: All right. It is admitted. 19 MR. KABUSK: Additionally, Your Honor, in 20 these matters, under 1519, there is no automatic 21 supersedeas. There was a supersedeas hearing held. And 22 the Court did grant a supersedeas. 23 THE COURT: I remember that. 24 MR. KABUSK: This case is simply a matter of 25 she can have her driving privilege reinstated if she 5 3~ "' ~ . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ .,1 1 .', c G complies with the Department's request that she take a driving exam. THE COURT: And she did take one exam? MR. KABUSK: She did, Your Honor. THE COURT: So implicit in that requirement of taking the exam I assume is that she pass it, or am I wrong about that? MR. KABUSK: No. She must pass the exam. THE COURT: So take and pass would be the requirement. MR. KABUSK: Take and pass, yes. And in order for that to happen, the Department would issue a letter which would allow her three chances to take and pass the exam. THE COURT: So in the meantime, she would have her license restored pending the taking of the exam? MR. KABUSK: Well, I would ask that this matter just be disposed of today THE COURT: Well, of course, there is a supersedeas in effect. MR. KABUSK: Yes. THE COURT: I don't know how that would relate to any order that I would make today. You are asking that I, what, dismiss the appeal and direct that she -- well, that's a good question. What would be the 6 ., ,-""" - -"""'''''-'--''-L' '67 I ,), l.c.J! o o 1 order that you would be seeking? 2 MR. KABUSK: Well, I would ask that you 3 dismiss the appeal. In the alternative -- 4 THE COURT: And do I have to say anything 5 else from your standpoint as to where we go from here? 6 MR. KABUSK: Well, dismiss the appeal, which 7 would end the supersedeas. Then she could call the 8 Department. And the Department would issue a letter for 9 her to take the driver's exam. In the alternative, Your 10 Honor, I would ask that pursuant to Section 1514 that you 11 would order that she take a driver's exam. And you have 12 that authority pursuant to 1514(c). 13 THE COURT: That would have the effect then 14 of maintaining the supersedeas, whereas the other would 15 not? 16 MR. KABUSK: If you so order the 17 supersedeas. And I would ask that, obviously, the 18 supersedeas be limited to a certain amount of time. So 19 that if she cannot pass the exam, she is not a danger to 20 others driving out there with the supersedeas. 21 THE COURT: Okay. I think I understand what 22 the Department is requesting. 23 Mr. Hershey. 24 MR. HERSHEY: Judge, if you have had a 25 chance to walk through the averments in support of our 7 - . ~ ~ 3Y ;: 0 , ~,t,i i ~OI!Iliililill-]i, o " 'W 1 petition. There is a fairly narrow, and to this point, 2 issue that's not been decided by either the Courts of 3 Common Pleas or the Commonwealth Court. Under 1519(c), 4 which was the basis of the Department's recall, and as 5 indicated by Mr. Kabusk, the scope of review by this Court 6 by statute is limited to whether the person is competent to 7 drive in accordance with the provisions of the regulations 8 promulgated under Section 1517 relating to the Medical 9 Advisory Board. 10 The factual basis for the Department's 11 action is failure to comply with the Department's request 12 for a driver's test. A factual basis for the request to 13 take the driver's test, according to the notice, was that 14 Ms. Montchal may have a general medical condition that 15 could affect her ability to drive. And that's in the 16 Department's packet. 17 Because this Court's review is limited to 18 whether or not her incompetency has been established via 19 regulation, one has to look at the regulations. And I will 20 be happy to brief this for Your Honor. I have the 21 regulations with me. 22 There is only three subsections in the 23 regulations that can justify a driver's exam. Under 83.5 24 67 Pennsylvania Code. The first category is for a person 25 who has loss or has the impairment of the use of a foot, 8 1;1 1- ,", .1" -;;-L ___'_ ,,1 ",". of""i: o ., 1 leg, finger, thumb, hand or arm as a functional defect or 2 limitation. There is no evidence that that's -- 3 4 THE COURT: Give me the Pa.Code section again. 5 MR. HERSHEY: 83.5(a), Your Honor. 6 THE COURT: Okay. 7 MR. HERSHEY: The second category of medical 8 condition that can justify a driver's exam is rheumatic, 9 arthritic, orthopaedic, muscular, or neuromuscular disease. 10 And that is Subsection (a) (5) under 83.5. And there is no 11 evidence that that's applicable here. 12 A third category is another condition, which 13 in the opinion of the examining licensed physician, could 14 interfere with the ability to control and safely operate a 15 motor vehicle. And that is Subsection (9). Conceivably 16 that section could apply, depending upon the evidence 17 presented by the Department. 18 While in this particular case, there is no 19 evidence that Ms. Montchal was deemed by a physician to 20 have a medical condition that would have justified an exam, 21 quite the contrary, the Department's evidence and exhibit 22 indicates that the request was specifically generated by a 23 local police department. 24 Now, DOT did publish a policy statement, 25 which precedes the regulations, and can be found at 67 9 /f-e; _i ;-, :.;2rJ_ ~~o) o o 1 Pa.Code 82.1 through 82.8. Here is where the legal issue 2 raises itself. Our Commonwealth Court has consistently 3 held that a statement of policy is not a regulation. And 4 to guide us through the distinction, there are two cases 5 that give a pretty good detailed explanation of the 6 difference. 7 The first case is pennsylvania Department of 8 Health versus North Hills Passavant Hospital. And it is 9 674 A.2d 1141. It is a 1996 Commonwealth Court opinion. 10 The second case is R.M. versus Pennsylvania Housing Finance 11 Agency, 740 A.2d 302. It is a 1999 case. 12 THE COURT: Can you give me the cite again, 13 please? 14 MR. HERSHEY: 740 A.2d 302. 15 THE COURT: Okay. 16 MR. HERSHEY: It is a 1999 Commonwealth 17 Court decision. Those two cases essentially say this. The 18 statement of policy is interpretive, not binding on a 19 reviewing court. However, it is persuasive if it tracks 20 the meaning of the statute. 21 The difference between a regulation and a 22 statement of policy is that the regulation is an exercise 23 of delegated power to make a law and is binding on a 24 reviewing court like a statute. 25 Three things that one would look at to 10 Lll ~: ,l I ,I~,,",-_ ~",- ~ '"'.'""~, A., .., o 1 determine whether in fact the provisions justify a driver's 2 exam from a third party would be what is the title of those 3 provisions itself. Well, the title of those provisions is 4 captioned Guidelines for Determining Cause to Initiate 5 Examination-Statement of Policy. And that appears in the 6 preamble of 67 Pa.Code 82.1. 7 The second consideration is the manner in 8 which those statement of policy or regulations are 9 implemented by the agency. These guidelines were not 10 subject to the Regulatory Review Act because they were 11 published as a statement of policy. Which means they don't 12 go through the rigors of review by the Attorney General and 13 other bodies of state government as a regulation would in 14 order to be promulgated as a regulation. 15 Then the third issue is does the published 16 material restrict the agency's discretion. Under the 17 statement of policy there is virtually no limitation on the 18 Department's discretion. And the particular provision 19 would be under 82.8 -- Title 67, Pa.Code 82.8 entitled 20 Other Reports. That provision simply says in addition to 21 physician reports, the medical unit annually receives 22 approximately 2,000 police reports, 500 accident reports, 23 500 reports from concerned family members regarding whether 24 individuals may have a medical condition that affects the 25 ability to drive. 11 Jr~. '^ L " ILL -,~-' '-'" ,,~, ..._"~.-., o o 1 Under Subsection (b), Evaluation, the 2 statement of policy indicates, these reports are evaluated 3 on a case-by-case basis. The Medical Unit carefully 4 scrutinizes these reports for validity. And then under 5 Subsection (2), the same provision, to investigate the 6 validity of the report, the Medical Unit frequently 7 contacts the source of the report by telephone, especially 8 in the case of reports from family members to ask for more 9 information or to discuss the case to determine the 10 validity. 11 And then it goes on -- I won't read the 12 whole thing into the record, but there are no limitations 13 under what circumstances the Medical Unit can act. So they 14 have very broad discretion under that provision. 15 The Department has published no regulations 16 which would justify the request for a driver'S exam under 17 this scenario. There are no regulations under this 18 scenario. Also, Judge, I would add that in the 19 Department's exhibit I think it is the -- well, it would be 20 page five, it would be number five, the Court would note 21 that there is a reproduction of Elaine Montchal's driving 22 record, dated January 8th, 2001. So it is a driver record 23 that was published subsequent to the initiation by the 24 police department for a request for an exam. That exam 25 request was received by the Department via time stamp 12 /B ,- .-- -,'_J 1.1 ^,'L,_i -;--' ,,"~", "10 o $ 1 September 18th, 2000. 2 The driver record for Ms. Montchal shows no 3 violations of any kind. It simply indicates that she was 4 involved in a reportable accident. And the DOT's own 5 legend on page two of the driver record, which would be 6 page five of the Department's exhibit, says motor vehicle 7 accident records listed on this operating report do not 8 indicate fault for the accident. The record only indicates 9 that this individual or the individual's vehicle was 10 involved in an accident on the date listed. 11 Even the notice from the Lower Allen 12 Township Police requesting the exam do not give any 13 indication as to whether or not this motorist was at fault, 14 nor that the motorist was cited. Nor is there any 15 indication given as to what information was received from a 16 neighbor about her driving. There is no detail. So this 17 kind of a report under the statement of policy gives DOT 18 unfettered discretion to essentially do what they want to 19 do. But the statement of policy is not a regulation. And 20 this Court's inquiry under Section 1519(c), again, is 21 limited to whether the person is competent to drive in 22 accordance with the provisions of the regulations 23 promulgated under Section 1517. 24 Judge, at the last hearing, because the 25 Department wasn't present, there was no indication from the 13 ~ ,'.~ . ~ il ----,"- < ~ ,,- ",,, ....:'~, - *,' . c ~.. W 1 Department as to their position on the supersedeas. Be 2 that as it may, the report received into evidence by Ms. 3 Montchal's treating physician indicated that in his 4 professional opinion, and I think he gave her a dementia 5 exam and some other exams, she was capable to a reasonable 6 degree of medical certainty to operate a motor vehicle. 7 So I am asking the Court to do two things. 8 One, because this is an issue of first impression, take the 9 case under advisement and review the two cases that I have 10 cited, along with the regulations, to determine whether or 11 not the Department's actions are appropriate. 12 And in the meantime, number two, because 13 there is no evidence of record to indicate that Ms. 14 Montchal is unsafe behind the wheel, other than the 15 allegations about some things she did on the driver'S exam, 16 we would ask that the supersedeas remain in effect until 17 this Court renders a decision. 18 THE COURT: Okay. Any response you want to 19 make to any of these legal arguments that have been made? 20 MR. KABUSK: Your Honor, I just would like 21 to point you to 1519(a), determination of incompetency, 22 general rule. The Department having cause to believe that 23 a licensed driver or applicant may not be physically or 24 mentally qualified to be licensed may require the 25 Department or driver to undergo one or more examinations 14 ~s L.;::~ ,II . . u 1 authorized under this sub-chapter in order to determine the 2 competency of the person to drive. 3 And pursuant to 1508, the Department 4 may -- that's the requirement, whereas every applicant for 5 a driver's license shall be examined for the type or class 6 of vehicles that the applicant desires to drive. The 7 examination shall include a physical examination, a 8 screening test of the applicant's eyesight, and a test of 9 the applicant's ability to read and understand official 10 traffic control devices, knowledge of safe driving 11 practices, and traffic laws of this Commonwealth. And 12 shall include an actual demonstration of ability to 13 exercise ordinary and reasonable control in the operation 14 of a motor vehicle, the type or class of vehicles for which 15 the applicant desires a license to drive. 16 The Department is simply requesting that she 17 take a driver's exam. And then she failed to comply with 18 that. Therefore, under 1519(c) it says the Department 19 shall suspend the operating privilege of any person who 20 refuses or fails to comply with the requirements of this 21 section until that person does comply and that person's 22 competency to drive is established. 23 That 1519 is put in there for this very 24 scenario. Otherwise, the Department's hands would be tied 25 until her license expired. That was the case years ago, 15 ; "..',--~ - ~',' ~ '....::; ~ "" I _ ~ j~",,,,{ "~ .' i.",J ,j , . ' o o 1 where the Department could not act upon this sort of 2 report. It had to wait -- 3 THE COURT: And I am the first one to deal 4 with this? 5 MR. KABUSK: Not to my knowledge, Your 6 Honor -- 7 8 issue THE COURT: This is a significant I mean, I understand the Department's view. On 9 the flip side of the coin is that if indeed this 10 legislation can be interpreted as broadly as you suggest, 11 that means anytime anybody makes a complaint to the police 12 department about an elderly person they have a driver's 13 exam. And you say, well, all we are requesting is a 14 physical exam. We could start testing everybody on the 15 street who had a single car accident whose relative was 16 concerned about them. And you are saying you have the 17 authority to do that. If you do, you do, but that's a 18 very, very broad authority which could affect a lot of 19 people. 20 And I am surprised that you are telling me 21 that you don't have any appellate cases that just say a 22 police officer can just file this type of form, and you 23 have the right to request an exam. 24 MR. KABUSK: To my knowledge, no, Your 25 Honor. This is not necessarily what I would call a medical 16 " .- ~ .~;fIE 47 ':,,,1 ,--Ie , . o o 1 recall case. This is a failure to comply with the 2 Department's requested -- 3 THE COURT: I understand that. But that 4 ignores the much broader issue. Why are you requiring an 5 exam, that's the point. She is a licensed driver. To 6 require an examination of a person who is already licensed 7 and authorized to drive is a considerable thing to do. 8 I certainly would be quite indisposed if I 9 got a letter in the mail saying, Hess, you have got to be 10 retested. But why, I have a license. 11 12 13 MR. KABUSK: I understand your -- THE COURT: That's a serious thing. MR. KABUSK: But that's not the case here. 14 There is a report of an accident. 15 THE COURT: An accident. 16 MR. KABUSK: And then there is the failure 17 for her to pass the exam. The Department's suspicion was 18 confirmed. 19 THE COURT: I understand what you are 20 saying, but I think the issue is of such a moment and 21 apparently not the law entirely so. I am going to do what 22 you are asking me to do, Mr. Hershey, but I am going to put 23 this on something of a fast track. I would like to resolve 24 this within days as opposed to weeks. So if you need a 25 couple days to get some sort of memorandum together, that's 17 ..',;; '""= 1~~_~ L;t - ' ',I ,k~l_i, l-~ ~ - '-" " '" IT.,.,.__""""- '" " . . .. o .. '" 1 fine, I will let you do that. In the meantime, if not, I 2 will take a look at the cases. I will certainly entertain 3 any letter or an opinion in the usual form and take a look 4 at it in an expedited basis. 5 MR. HERSHEY: Judge, I am just thinking of 6 my briefing schedule overall for this week. Would ten days 7 be too much to ask? 8 THE COURT: No. Ten days is okay. 9 And Now, this date, this matter having been 10 called for hearing, the court takes the matter under 11 advisement. The appellant is given ten days within which 12 to mile a memorandum of law. The Department shall, of 13 course, be given the opportunity to respond. Pending same, 14 the supersedeas heretofore entered in this matter is 15 continued. 16 (End of proceedings) 17 18 19 20 21 22 23 24 25 18 ~'_.liCt L;q L_ 'Ii .. .. o $ . CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the abovecause and that this is a correct transcript of same. ~;; Ji~ Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Datt~ IL "24'1 A. Hess, J. Judicial District 19 ,- " ,..~",' 'r h\ 50 " ;,-~"- ,:JI ~ - ~~~';! (JO - '8'8'1'1 ~B IN THE COMMONWEALTH COURT OF PENNSYL VANIA Elaine Montchal v. No. 1272 C.D. 2001 Submitted: December 28, 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE JAMES GARDNER COLINS, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION BY SENIOR ruDGE MIRARCHI FILED: March 25,2002 The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) which sustained the appeal of Elaine Montchal (Licensee) from a recall of her operating privilege that was imposed by the Department on grounds of incompetency pursuant to Section l5l9(c) of the Vehicle Code (Code), as amended, 75 Pa. C.S. S15l9(c).! We reverse. 1 Section l5l9(c) provides: The department shall recall the operating privilege of any person whose incompetency has been established under the provisions of this chapter. The recall shall be for an indefInite period until satisfactory evidence is presented to the department in accordance with regulations to establish that such person is competent to drive a motor vehicle. The department shall suspend the operating privilege of any person who refuses or fails to comply with the requirements of this section until that person does comply and that person's competency to drive is established. Any person aggrieved (Footnote continued on next page...) "',-- ~ ,e,=, ~ ".~ .d.1 .........~~,-- . On September 5, 2000, Licensee was involved in a single car accident. The Lower Allen Township Police Department sent a notice to the Department recommending that Licensee be given a special medical/driver examination. The form listed Licensee's physical or mental limitations as "glasses/80 years old." Reproduced Record (R.R.), p. 68a. The form also listed the reason for requesting the examination as: "Crashed into tree, single vehicle accident. Also received call from neighbor, about her driving." Id. By notice dated September 29, 2000, the Department informed Licensee that it had received information indicating that she may have a general medical condition that could affect her ability to drive. The Department informed Licensee that it was necessary for her to take a driving examination.2 The Department advised Licensee that if she failed to comply with the request within 30 days, her operating privileges would be suspended. On October 25, 2000, Licensee took a driver's test but failed the driving, traffic signs and laws sections of the examination. By notice dated December 13, 2000, the Department informed Licensee that her operating privileges were being suspended indefmitely effective January 17, 2001 as a result of her failure to comply with the Department's (continued... ) by recall or suspension of the operating privilege may appeal in the manner provided in section 1550. The judicial review shall be limited to whether the person is competent to drive in accordance with the provisions of the regulatioru: promulgated under section 1517 (relating to Medical Advisory Board). 2 The notice advised Licensee that she had three opportunities to take the test. 2 ,~. '".--,",,~~. . " " ;i ,I'" _,I' : , '~ "'.."O~ - ~ t'~~u~,:gt,_ . previous request for a driver's examination.3 Licensee then appealed to the trial court.4 After a hearing, the trial court sustained Licensee's appeal. The trial court concluded that the Department could not recall the operating privileges of any person based on a recommendation from a local police department where there is no medical report or medical testimony suggesting that the motorist is not competent to drive. The Department now appeals to this Court.5 On appeal, the Department argues that the trial court erred in concluding that the Department had no authority to require Licensee to undergo a driving examination. The general rule regarding the determination of incompetency IS found in Section 1519(a) of the Vehicle Code. That Section provides: The department, having cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, may require the applicant or driver to undergo one or more of the examinations authorized under this subchapter in order to determine the competency of the person to drive. The department may require the person to be examined by a physician or 3 As explained by the Department before the trial court, the Department requires that the driver take and pass the driver's examination. 4 Licensee also requested a supersedeas. At the supersedeas hearing, Licensee introduced into evidence a letter from her physician stating that he had examined her on December 22, 2000 to determine her physical and mental capability to operate a motor vehicle. Licensee's physician stated that it was his opinion, to a reasonable degree of medical certainty, that Licensee was able to operate a motor vehicle safely. 5 Our scope of review is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed, or whether the trial court's detennination demonstrates a manifest abuse of discretion. Mazza v. Department of Transportation, Bureau of Driver Licensing. 692 A.2d 251 (Pa. Cmw1th. 1997), petition for allowance of appeal denied, 551 Pa. 172,709 A.2d 887 (1998). 3 !'ct~_. . .. - ~-, , .._Il " -"d -- j , -..ii&: ~\j,,- a licensed psychologist designated by the department or may require the person to undergo an exalllination by a physician or a licensed psychologist of the person's choice. If the department designates the physician or licensed psychologist, the licensed driver or applicant may, in addition, cause a written report to be forwarded to the department by a physician or a licensed psychologist of the driver's or applicant's choice. Vision qualifications may be determined by an optometrist or ophthalmologist. The department shall appoint one or more qualified persons who shall consider all medical reports and testimony in order to determine the competency of the driver or the applicant to drive. (Emphasis added.) The Department contends that it has authority under Section l5l9(a) to require a licensee to undergo a driver's exalllination. The Department relies on the first sentence of Section l5l9(a) which provides that it may require the licensee "to undergo one or more of the exalllinations authorized lmder tbis subchapter in order to determine the competency ofthe person to drive." (Emphasis added.) An applicant for a driver's license is required by Section 1508 of the Vehicle Code, as amended, 75 Pa. C.S. S1508, to be examined for the type or class of vehicles that the applicant desires to drive. The exalllination includes "an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle." Pursuant to Section l5l4(b) of the Vehicle Code, 75 Pa. C.S. S15l4(b), the Department may require persons applying for renewal of a driver's license "to take and successfully pass such additional tests as the department may find reasonably necessary to determine the applicant's qualifications." The Department contends that because Sections 1508 and l5l4(b) are included within the same subchapter as Section 1519, it has authority under Section 1519 to require a licensee to sublllit to the tests authorized by those Sections. 4 -,-",,..~,,,,,,,....~~ ~..........u;.~ " - " -, ,-I, 1 I;" ' '~_, " " ~,'- ",. -"-~~,r,., . Pursuant to Section 1921 of the Statutory Construction Act of 1972, "[ e ]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S.A. S 1921. Furthermore, a statute should be interpreted as a whole, giving effect to all its provisions. Commonwealth v. Barfield, 768 A.2d 343 (Pa. Super. 2001). Keeping these principles in mind, we conclude that Section 1519 grants authority to the Department to require a licensee to submit the tests set forth in Sections 1508 and 1514(b). We further conclude that Section 1519 grants the Department discretion to request the licensee to undergo an examination by a physician, a licensed psychologist or by an optometrist or ophthalmologist. If the Department requires the licensee to undergo a medical examination, Section 1519 then requires the determination of competency to be made based on all medical reports and testimony. In the case before us, the Department received a police report stating the Licensee had been involved in a single car accident and had crashed into a tree. Based on this information, the Department requested Licensee to take a driver's examination. The Department recalled Licensee's operating privileges because she failed the driver's examination. The Department did not request Licensee to undergo a medical examination; therefore, it was not necessary for the Department to have medical reports and testimony in order to recall her operating privileges. The order of the trial court is reversed, and the recall of Licensee's operating privileges is reinstated. CHARLES P. MIRARCHI, JR., Seni 5 ,,1"""'""~~'~ - ,,-',I , 1, "''':!i ~~ '" ~~ ~"'~-~tt<F . . IN THE COMMONWEALTH COURT OF PENNSYL VANIA Elaine Montchal v. : No. 1272 C.D. 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 25th day of March, 2002, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby reversed, and the recall of the operating privilege of Elaine Montchal is reinstated. CHARLES P. MIRARCm, JR., Serno ~Ij;t~~~~~,*@,h~,al:t~~,~~~";ii,",,c;"'~~"'--''':'''-'' ,"".;,:v,;'~~;m~~' ,--L;,_,J!~tJI~",_".~ ,=.]1 I ~~, .,,,,,'f:1',_,,,"' ,~ __" ";-,, .__,^ _,,_ ~--r:"''''"o_~, . '" .~ [~Ii~m~'-'~"""'8L,,"!IfiJMJ~' ,-- 1'1 (") c: >- J?f7} 7fT; 7.-J:- <-"r ~~2: ~~:,' ~\'-) :J;.C c: 2: ::;! - >," '==> '''; -" . a t'v '- c:: ,-- o "'T"j ,7~ 1"1"112 -~?tg ;~S~ 70 0'1'1 -" 3J -< ...... " :2;:' l" ,',,~ ~" ,._~ , ~ 1__ ".1- " ~ . - ~ . .1' :.. ~ ~,~ J-A15003-02 LORI D. LEGGE, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. SHAWN K. LEGGE, Appellant No. 1425 MDA 2001 Appeal from the Order dated August 23, 2001, In the Court of Common Pleas of Cumberland County, Civil at No. 01-1591 BEFORE: JOYCE, BECK and POPOVICH, JJ. MEMORANDUM: F I LEO JUN - 7 2002 Shawn K. Legge, Appellant, appeals from the August 23, 2001 order of the trial court granting primary custody of the parties' children to Lori D. Legge, Appellee. For the reasons set forth below, we affirm the order of the trial court. The relevant facts and procedural history are as follows. Appellant and Appellee are the parents of twin boys born on February 23, 1995. On March 19, 2001, Appellee relocated the children from the family home in Camp Hill, Pennsylvania to Duncannon, Pennsylvania. Appellee also enrolled the children in a new school district. Appellee filed for divorce the following day. Also on March 20, 2001, Appellant filed a petition for emergency relief wherein Appellant sought to maintain the children's status quo in Camp Hill pending a custody hearing. Although the trial court did not enter an order with respect to Appellant's petition for emergency relief, Appellee agreed to return the children to their original school district in Camp Hill through the J'-"-"~ , ,~ ~ l: " ,;;"'1 J _ - , --' 0: ,~ , , "'~' -J~'~'" .~,' J-A15003-02 end of the school year. However, following unsuccessful custody negotiations between the parties, Appellee again withdrew the children from the Camp Hill school district in April of 2001. On April 18, 2001, Appellant filed a second petition for emergency relief seeking shared custody of the children and the return of the children to the Camp Hill school district. On April 19, 2001, the trial court granted Appellant's second petition for emergency relief. On June 1, 2001, a temporary custody order was entered granting the parties shared custody of the children. On August 3, 2001, a custody hearing was held wherein both Appellant and Appellee testified. On August 23, 2001, the trial judge awarded primary custody of the children to Appellee during the school year, and primary custody of the children to Appellant during the summer. Appellant thereafter filed this timely appeal. Appellant raises the following issues for our review. 1. Was the trial court's decision in awarding Appellee primary custody unduly biased on its finding that he found "credible" her allegations of spousal abuse against the Appellant? A. Did the trial court abuse its discretion and disregard substantial evidence by its finding that the Appellee was credible in her allegations of spousal abuse? 2. Did the trial court err by disregarding special evidence concerning the children's best interests including the preference of the children? - 2 - ~.~-"--~. ~ - -- ,: . , ,;..; -I I, _, _~' ' - - ,-, 'Tmi!1&m~ ]-A15003-02 3. Was the trial court's decision that Appellee would act to foster a relationship with the Appellant supported by evidence? 4. Should the trial court's decision be overruled and primary custody granted to Appellant?l Appellant's Brief, at 4. Our paramount concern in child custody matters is that the disposition reflects the best interests of the child, based on a consideration of all factors that legitimately affect a child's physical, intellectual, moral and spiritual well-being. Bovard v. Baker, 775 A.2d 835 (pa. Super. 2001) (citation omitted). Our scope of review in child custody matters is as follows: The scope of review applied by an appellate court to a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that is not supported by competent evidence. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845, 847 (1992). However, this broad scope of review does not vest an appellate court with the duty or privilege of making its own independent determination. An appellate court may not interfere with the trial court's factual conclusions unless they are unreasonable in view of the trial court's factual findings and thus represent an abuse of discretion. Id. T.B. v. L.R.M., 567 Pa. 222, 225, 786 A.2d 913, 916 (2000). 1 Although Appellant listed a fourth issue in his Statement of Questions Involved, Appellant failed to address this issue in his brief. Failure to develop an argument in a brief constitutes waiver of the issue. B & L Asphalt Industries, Inc. v. Fusco, 753 A.2d 264 (Pa. Super. 2000). Accordingly, Appellant's fourth issue is waived. - 3 - ;!l!1~..-: ' -"-..."" '~~''''-- ,~ L _ '''1~~",,/;o ]-A15003-02 A finding of an abuse of discretion "requires proof of more than a mere error in judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice or partiality." Gephart v. Gephart, 764 A.2d 613, 614 (pa. Super. 2000) (citation and quotation marks omitted). Initially, Appellant asserts that the trial court abused its discretion in finding that Appellees' testimony of spousal abuse was credible. Appellant's Brief, at 4. We disagree. It is well settled that the fact-finder is entitled to weigh the evidence presented and assess its credibility. Green v. Green, 783 A.2d 788 (Pa. Super. 2001). The assessment of the credibility of witnesses is within the sole province of the trial court. Brotzman-Smith v. Smith, 650 A.2d 471 (Pa. Super. 1994) (citation omitted). Moreover, we note that the trial judge's conclusions should be given the fullest consideration because the trial judge heard the testimony and observed the demeanor of the witnesses. See Rothrock v. Rothrock, 765 A.2d 400 (pa. Super. 2000). During the custody hearing, Appellee testified that she obtained a protection from abuse order against Appellant after she left the marital home. N.T., 8/3/01, at 34. Appellee testified that the marital relationship was not a loving relationship. Id. at 38. Appellee testified that the marital relationship was violent. Id. at 39. Appellee further testified that "... almost every night ... if I went to bed and didn't give into his wishes, he would grab - 4 - ~'-.-.~ , j - ,':O;JI , K_O_ _~__ , ,- L' " J-A15003-02 me. He shoved me and kicked me out of my bed. He lifted my mattress with me on it and rolled me off the mattress. He threw things in our bedroom, knocking down pictures and breaking glass, punching holes in the walls." Id. Appellee further testified that Appellant's behavior would continue until she complied with his sexual requests.2 Id. Appellee 'also testified that she sought counseling in order to " ... find the safest way out of the marriage." Id. at 40. Finally, Appellee testified that she was "fearful [of] being hurt by [Appellant]." Id. at 76. In contrast, Appellant testified that he did not abuse Appellee in any manner. Id. at 213. Following the testimony of the parties, the trial court stated that "we are satisfied that [Appellee] has been credible in her testimony regarding the treatment she received at the hands of her husband." Trial Court Opinion, 10/31/01, at 5. The trial court further discussed that "[t]he Legislature3 requires us to consider the abusive conduct of one of the parents in precisely the kind of situation which presents itself in this case." Id. at 6. Finally, the trial court stated that "[Appellant] denied any abuse of [Appellee] and defined their sexual relationship as loving if not torrid. In the end, his testimony struck us as so incredible in certain material aspects as to suggest 2 Appellee also testified that during the six months preceding the separation, Appellant's behavior occurred three or four nights per week. Id. at 40. 3 23 Pa.C.S.A. 9 5303. - 5 - ......... a "'" -~~,- ""~ .~-~~~_..:.'" , 1- .dl "I ."'_."-'~-lLi '.'~...f, J-A15003-02 the application of the doctrine of falsus in uno, falsus in omnibus. It is, in other words, difficult to ascertain what of his testimony is worthy of credit and belief." Id. at 4. We find that the trial court did not err in determining that Appellee's testimony of spousal abuse was credible as the spousal abuse is adequately supported in the record. We further find that the record is absent of any evidence of bias, prejudice or unfairness on the part of the court in granting primary custody of the children, during the school year, to Appellee. Therefore, we find Appellant's first issue to be without merit. Appellant next asserts that the trial court disregarded evidence concerning the best interests of the children, including the preference of the children. Appellant's Brief, at 4. A child's preference in a custody case, although not controlling, is one factor to be considered provided the preference is based on good reasons. Swopev. Swope, 689 A.2d 264 (pa. Super. 1997). "The child's maturity and intelligence must be considered, and the weight to be given the child's preference can best be determined by the judge before whom the child appears." Id. at 266 (citation omitted). The trial court acknowledged that the children expressed a preference to remain in Camp Hill with their father. Trial Court Opinion, 10/31/01, at - 6 - ""r'---~ , ~" .', " , , ,,,.1. _I - ~'" I ",,-,<.iC'," '- - -..... ~ - '4,l>1~ J-A15003-02 4.4 However, the trial court found that this preference was the result of familiarity with the Camp Hill Community. Id. at 5. The trial court stated that "[w]e are completely satisfied that the children will have no difficulty becoming equally comfortable with [Appellee's] community." Id. The trial court further stated that "we are satisfied that [the] needs [of the children] will be best met if they reside, during the school year, with [Appellee]. Of the two parents, [Appellee] will provide more stability and be better able to inculcate self-discipline." Id. at 6. The trial court also discussed the general rules for an award of custody listed in 23 Pa.C.S.A. ~ 5303. The general rules in Section 5303 include the preference of the child, the likelihood of the custodial parent to encourage contact with the non-custodial parent, a parent's past abusive conduct, and any other factor that legitimately impacts a child's physical, intellectual and emotional well-being. The trial court further discussed Appellee's role as primary caregiver of the children during their early years. Id. at 2. Although the trial court acknowledged that Appellant recently became more involved with the children, the court determined that "his involvement has centered, for the most part, around play." Id. The trial court also noted testimony that verified Appellant's "volatile temper and even his ability to use the children 4 At the time of the custody hearing, the children were six years old. N.T. at 246. - 7 - -"~,~ ~.- ~ -Xl,1 '!i:!#; ]-A15003-02 as an expression of his anger." Id. at 3. Finally, the trial court found that Appellee would assure regular contact with Appellant, an essential element in child custody matters. It is clear from the trial court opinion that the trial court considered the evidence regarding the best interests of the children, including the preference of the children. The trial court determined that granting primary custody of the children to Appellee, during the school year, would be in the children's best interest. We find that the record supports the conclusions of the trial court and we see no abuse of discretion that warrants a reversal. Finally, Appellant asserts that the evidence does not support the trial court's conclusion that Appellee would continue to foster a relationship with him. Appellant's Brief, at 4. However, Appellant testified that the children telephone him when they are in Appellee's custody. N.T. at 217. Appellant also admitted that the children do not telephone Appellee while they are in his custody unless the children specifically request to do so. Id. Appellant further testified that he does not believe it is necessary to initiate or encourage the children to telephone Appellee while they are in his custody. Id. The trial court concluded that" ... the mother is the most likely to encourage and allow frequent and continuing contact with the non-custodial parent. The fact that, even as this custody dispute was unfolding, [Appellee] permitted the children to finish the school year in Camp Hill and to have - 8 - ""~~~. "" _.,~ -~." " ~ ~ -:11 I" .-- ~ I &l ~'O'" '~""'~i1'P'~ J-A15003-02 regular and ongoing contact with their father is proof positive." Trial Court Opinion, 10/31/01, at 6. The trial court also expressed concerns that if Appellant was granted primary custody, "the more volatile aspects of his nature may cause him to use the children in a negative way in his dealings with his estranged wife." Id. We find that the trial court's conclusion that Appellee would continue to foster a relationship with Appellant is also amply supported by the record. Since we find no evidence that the trial court abused its discretion, we reject Appellant's third issue. Accordingly, we affirm the order of the trial court granting primary custody of the children to Appellee, during the school year, and primary custody of the children, during the summer, to Appellant. Order affirmed. Jurisdiction relinquished. Date:JUN -7 20 - 9 - ~~~i!!I~!l:1;,s!l'tlMi~~'-'i!~~lli1ilit&Aitm'-",jjH,,,,<-~;,,",,,,,,,,,-.,,J,.h1"~j;,l!;;-;i%~i,"*-f;'W_4j1Ui~ii~IJ:t!~.. 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