Com., Dept. of Transp., Bureau of Traffic Safety v. Slater

• Decision Date: 30 June 1983
• Citation: 462 A.2d 870,75 Pa.Cmwlth. 310
• Parties: , 12 Ed. Law Rep. 816 COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, Appellant, v. Glenn E. SLATER, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 870

462 A.2d 870

75 Pa.Cmwlth. 310, 12 Ed. Law Rep. 816

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION BUREAU OF TRAFFIC SAFETY, Appellant, v. Glenn E. SLATER, Appellee.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 11, 1983.

Decided June 30, 1983.

[75 Pa.Cmwlth. 312] Harold H. Cramer, Asst. Counsel, Harrisburg, for appellant.

Catherine Guido, Northern Pa. Legal Services, Inc., Kenneth Levitzky, Towanda, for appellee.

Before ROGERS, BLATT and CRAIG, JJ.

CRAIG, Judge.

The Department of Transportation, Bureau of Traffic Safety, appeals an order of the Court of Common Pleas of Bradford County, which reversed the department's decision to revoke the school bus driver's license of Glenn E. Slater, a diabetic.

Slater has had a Class 4 license (school bus driver's license) since 1973. Responding to Slater's physician's report indicating that Slater had diabetes, the department, by letter of October 22, 1980, required Slater to have a doctor complete a general diabetic form issued by the department. On that form, the treating physician ¹ indicated that Slater had diabetes for eight years and was taking 500 milligrams of the hypoglycemic drug Dymelor daily. Furthermore, the physician noted that Slater did not adhere to his diet, and that his blood sugar was not within the normal range.

As a result of that diagnosis, the department notified Slater that it was suspending his license, effective December 2, 1980, under sections 1504 and 1509 of The Vehicle Code, ² requiring that school bus drivers be physically qualified to obtain a license. ³

Specifically, the department suspended Slater under 67 Pa.Code § 71.3, a regulation promulgated under the statutory authority of section 1504(c) and 75 Pa.C.S. § 1517(b). ⁴ Section 71.3 provides, in relevant part:

(b) Requirements of Physical Examination. The following shall be the minimum requirements for passing a physical examination:

....

(3) No established medical history or clinical diagnosis of:

(i) Diabetes mellitus requiring use of insulin or any other hypoglycemic medication.

Slater appealed his suspension to the common pleas court, which found that Slater's diabetes was well controlled and, by order of July 17, 1981, ruled that the department must restore Slater's driving privileges.

However, after the department had appealed that order, the common pleas court issued an opinion in which it stated that it "should not have considered the evidence relating to the time period subsequent to the Department's recall of Slater's driving privileges," and, because the only evidence focusing on Slater's condition at the time of the suspension indicated that Slater's diabetes was not well controlled, said that its order of July 17, 1981 should be reversed.

We note, however, that an appeal will lie only from a definitive order, decree or judgment which finally determines the action. See Stadler v. Borough of Mt. Oliver In appealing that order, the department contends that it is entitled to issue regulations under an express grant of legislative authority, and that section 71.3, although requiring school bus drivers to meet much higher standards than ordinary drivers, is reasonable, considering the tragedy that could occur if the operator of a school bus lost consciousness.

373 Pa. 316, 95 A.2d 776 (1953). Therefore, we must treat this matter as an appeal from the common pleas court's order dated July 17, 1981, which restored Slater's license.

In response, Slater asserts that section 71.3: (1) conflicts with the legislative intent expressed in 75 Pa.C.S. § 1509; and (2) violates the Fourteenth Amendment of the United States Constitution because it serves no rational legislative purpose, unduly oppresses a specific class of individuals, and establishes an irrebuttable presumption of physical unfitness.

STATUTORY COMPLIANCE

In resolving Slater's first contention, we must first review Bureau of Traffic Safety v. Byrd, 41 Pa. Commonwealth 38, 399 A.2d 425 (1979), where we considered a regulation which categorized certain physical conditions as automatic disqualifications for a Class 4 license. ⁵ The department had promulgated that regulation under section 609 of the former Vehicle Code ⁶ which, like present section 1509, generally provided that no person could legally operate a school bus unless he "has satisfactorily passed a physical examination ...."

Our holding in Byrd, that a department regulation which declared that a history of myocardial infarction alone, absolutely and without exception, disqualified any person from legally driving a school bus, exceeded the department's legislative authority to require that school bus drivers pass annual physical exams, rested on our crucial determination that:

No express authorization exists under the 1959 Vehicle Code for the Department to promulgate regulations implementing Section 609 above.

Id. at 41, 399 A.2d at 426.

However, as we noted in Byrd, ⁷ the legislature repealed the 1959 Vehicle Code and reenacted the current Vehicle Code, ⁸ which became effective on July 1, 1977. Thus, we decided Byrd under the 1959 Code; here, however, we must consider the validity of section 71.3 under the current Code.

Section 1504 of the current Code ⁹ grants the department express authority to promulgate regulations to establish "the qualifications necessary for the safe operation of various types, sizes or combinations of vehicles and the manner of examining applicants to determine their qualifications for the type or general class of license applied for." Furthermore, 75 Pa.C.S. § 1517 in the current Code formally establishes a Medical Advisory Board and provides that "[t]he board shall formulate rules and regulations for adoption by the department on physical and mental criteria ... relating to the licensing of drivers under the provisions of this chapter." 75 Pa.C.S. § 1517(b). Thus, in contrast to Byrd, under the current code, the department has express authority to promulgate regulations implementing section 1509.

As in Byrd, we find instructive our Supreme Court's decision in Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 313 A.2d 156 (1973). There the court quoted Professor Davis, an administrative law expert, in discussing the difference between a regulation promulgated under an agency's interpretive rule-making powers (the Byrd situation) and one promulgated under an express Slater contends, however, that 75 Pa.C.S. § 1519, which authorizes the department to order a physical examination of any licensee who appears to be physically or mentally unqualified, and to "recall the operating privileges of any person whose incompetency has been established," indicates a legislative intent to disqualify drivers only when they are suffering from a current disability. Thus, Slater argues that, notwithstanding the fact that the department promulgated section 71.3 under express legislative authority, that regulation has no force because it conflicts with other statutes, particularly section 1519.

grant of legislative power (the present situation). Id. at 76-78, 313 A.2d at 169.

However, we find no inconsistency between the legislature's grant of authority to the department to define physical qualifications, and to remove drivers who fail to meet those qualifications. Therefore, the distinction between legislative and interpretive rule-making, discussed in Uniontown Area School District, is controlling, and we must treat section 71.3 as having effect like that of a statute. Accordingly, we cannot say that this regulation is in conflict with the general statutory framework to which we were confined in our analysis in Byrd.

CONSTITUTIONAL CHALLENGE

Standard of Review

As in all cases involving equal protection challenges, this court must decide the appropriate standard for reviewing the constitutionality of section 71.3. San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of the legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right ¹⁰ or operates to the peculiar disadvantage of a suspect class. ¹¹

In cases where these considerations are absent, the government action will be upheld if the means employed are rationally related to the end to be achieved. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Kacar, Inc. v. Zoning Hearing Board of Allentown, 60 Pa. Commonwealth 582, 432 A.2d 310 (1981). Thus, this court initially must determine whether the department's suspension of the applicant's school bus driver's license, which causes the applicant to lose his present job, deprives the applicant of a fundamental right.

In Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971), the Supreme Court, in holding that a driver is entitled to a hearing before a state can revoke his license, said:

Once licenses are issued, as in [the driver's] case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. (Citations omitted.) This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege.' (Citations omitted.)

This court has recognized that driver's "operating privileges are protectable property interests that may not be terminated without the procedural due process required by the fourteenth amendment," Bureau of Traffic Safety v. Quinlan, 47 Pa. Commonwealth 214, 218, 408 A.2d 173, 175 (1979), although we earlier had implied that a license...