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HomeMy WebLinkAbout00-8814 civilELAINE MONTCHAL, Appellant VS. COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8814 CIVIL CIVIL ACTION- LAW IN RE: LICENSE SUSPENSION APPEAL BEFORE HESS, J. ORDER AND NO W, this 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. B Y THE COURT, David Hershey, Esquire For the Appellant K~A. Hess, J. George Kabusk, Esquire For PennDOT 'rlm ELAINE MONTCHAL, Appellant VS. COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 0O-8814 CIVIL 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 OO-8814 CIVIL supersedeas hearing, the petitioner offered a letter from Dr. J. 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 00-8814 CIVIL 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 of legitimate 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). 00-8814 CIVIL 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 role. - 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 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 00-8814 CIVIL 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 of a Medical 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 final 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. 00-8814 'CIVIL 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 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 Kevin,~. Hess, J. /, George Kabusk, Esquire For PennDOT :rlm