Opinion
No. 293 C.D. 2012
12-13-2012
Andrew J. Groft v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department), appeals from the January 25, 2012, order of the Court of Common Pleas of York County (trial court), which sustained the statutory appeal of Andrew J. Groft (Licensee) from the Department's recall of his operating privileges pursuant to Section 1519(c) of the Vehicle Code, 75 Pa. C.S. § 1519(c) (relating to a determination of incompetency to drive for medical reasons). We affirm.
Where, as here, the trial court takes de novo evidence, our scope of review is limited to determining whether constitutional rights were violated or whether the court manifestly abused its discretion or committed an error of law. Sklar v. Department of Transportation, Bureau of Driver Licensing, 764 A.2d 632 (Pa. Cmwlth. 1999), appeal denied, 561 Pa. 681, 749 A.2d 474, cert. denied, 531 U.S. 823 (2000).
The Department recalled the driving privileges of Licensee in an official Notice of the Recall of Your Driving Privilege dated October 28, 2011 (Recall Notice). (Reproduced Record (R.R.) at 30a.) The recall was precipitated by an Initial Reporting Form, Form DL-13, that the Department received from Jay M. Forman, a physician assistant working under the supervision of a neurologist. Mr. Forman indicated on the Initial Reporting Form by checking several boxes that Licensee had a seizure on October 17, 2011, that Licensee suffered from a "seizure disorder," and that Licensee should lose his driving privilege. (R.R. at 32a.) The Form contained no other information regarding Licensee's medical condition.
The Department's Recall Notice informed Licensee that the recall of his license was effective November 4, 2011, and that he could no longer drive as of that date. The Recall Notice stated that "PennDOT's medical regulations require you remain episode free for a 6 month period, with or without medication, before you will be eligible for reinstatement of your driving privilege. . . . [Y]ou will be eligible for restoration on 4/17/2012." Enclosed with the Recall Notice was a Seizure Reporting Form, Form DL-121, which is a questionnaire to be completed by a licensee's health care provider that is more detailed than the Initial Reporting Form. The Recall Notice advised Licensee of his appellate rights, but also instructed: "Please do not have the enclosed form completed by your health care provider prior to 4/17/2012."
Licensee appealed to the trial court and the trial court held a hearing on January 25, 2012. At the hearing, the Department offered the Initial Reporting Form as evidence of Licensee's seizure disorder. The Department presented no further evidence regarding Licensee's medical condition and offered no testimony. Licensee testified that he had a seizure on October 17, 2011, that occurred during his sleep. (Hearing Transcript (H.T.) at 6, R.R. at 20a.) He testified that prior to that seizure, he had been seizure-free for nearly nine years, and that he had two prior seizures in January 2002 and January 2003 that were related to a brain aneurysm and brain surgery to correct the aneurysm. (H.T. at 5-6, R.R. at 19a-20a.) He testified that he had never been diagnosed with a seizure disorder, has had only three seizures in nearly 11 years, that he has submitted to numerous medical tests, including an EEG, which were all negative for a seizure disorder, and that he is taking medication. (Id.) Finally, he testified that Mr. Forman treated him only one time, two days after his seizure, which was confirmed by Mr. Forman's note on the Initial Reporting Form. (Id.)
The trial court sustained Licensee's appeal and rescinded the suspension, finding that although the Department met its prima facie burden to recall Licensee's driving privileges by submitting the Initial Reporting Form, Licensee had met his burden of rebutting the Department's evidence. The Department filed a motion for reconsideration, which the trial court denied. The Department timely appealed to this Court.
On September 4, 2012, this Court entered an order precluding Licensee from submitting a responsive brief.
Section 1519(c) of the Vehicle Code requires the Department to recall the operating privileges of any person who has been deemed medically incompetent to drive. 75 Pa. C.S. § 1519(c); Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 344, 684 A.2d 1060, 1061 (1996). Section 1519(c) provides that judicial review of a license recall is limited to whether the person is competent to drive in accordance with the provisions of regulations promulgated by the Department in connection with the Medical Advisory Board created under Section 1517 of the Vehicle Code. 75 Pa. C.S. §§ 1517, 1519(c).
The regulation at 67 Pa. Code § 83.4 addresses seizure disorders and provides the following:
§ 83.4. Seizure disorder.
(a) General. A person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that the person has been free from seizure for at least 6 months immediately preceding, with or without medication. A person will not be disqualified if the person has experienced only auras during that period.
(b) Waiver. Waiver of the freedom from seizure requirement may be made upon specific recommendation by a licensed physician if one of the following conditions apply:
(1) A strictly nocturnal pattern of seizures or a pattern of seizures occurring only immediately upon awakening has been established over a period of at least 2 years immediately preceding, with or without medication.
(2) A specific prolonged aura accompanied by sufficient warning has been established over a period of at least 2 years immediately preceding, with or without medication.
(3) The person previously had been free from seizure for a 6 month period and the subsequent seizure or seizures occurred as a result of a prescribed change in or removal from medication while under the supervision of a licensed physician. This waiver will only be provided upon reinstitution of previous medication.
(4) The person previously had been free from seizure for 6 months and the subsequent seizure or seizures occurred during or concurrent with a nonrecurring transient illness, toxic ingestion, or metabolic imbalance.
(c) Reporting requirements for provider. Every provider who treats a person who has experienced a single seizure
shall provide, consistent with 75 Pa. C.S. § 1518(b) (relating to reports on mental or physical disabilities or disorders), a report to the Department which shall constitute cause for the Department to direct the person to undergo an examination prescribed under 75 Pa. C.S. § 1519 (relating to determination of incompetency).67 Pa. Code § 83.4. The regulation defines a "seizure disorder" as a "[c]ondition in which an individual has experienced a single seizure of electrically diagnosed epilepsy, or has experienced more than one seizure not including seizures resulting from an acute illness, intoxication, metabolic disorder, or trauma." 67 Pa. Code § 83.2.
The Department can meet its initial burden of presenting a prima facie case of medical incompetency by introducing the medical report that was submitted to the Department by a health care provider. Ploof v. Commonwealth of Pennsylvania, 590 A.2d 1318, 1320 (Pa. Cmwlth. 1991). Once the Department establishes a prima facie case, the burden then shifts to the licensee to establish that he was competent to drive on the date of the recall or has since become competent to drive. McKelvy v. Department of Transportation, Bureau of Driver Licensing, 814 A.2d 843, 846 (Pa. Cmwlth. 2003). "If the licensee presents evidence at the hearing that he was, in fact, competent to drive on the date of recall, or that he has become competent to drive since the time that his license was recalled and the date of the hearing, then, naturally, DOT would most likely need to present testimonial evidence in order to prove incompetency. The burden of persuasion never leaves DOT, but the medical report itself is sufficient to meet and overcome DOT's initial burden to establish a prima facie case." Reynolds v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 361, 364 (Pa. Cmwlth. 1997), recognized as abrogated on other grounds, Commonwealth v. Butler, 571 Pa. 441, 444 n.3, 812 A.2d 631, 633 n.3 (2002).
Here, the Department established its prima facie case under Section 1519(c) when it submitted into evidence the Initial Reporting Form. Licensee sought to meet his burden and rebut the Department's prima facie evidence by testifying on his own behalf. The trial court found that Licensee was credible and that he sufficiently rebutted the Department's evidence. The Department offered no further evidence.
On appeal to this Court, the Department argues that the Initial Reporting Form creates a rebuttable presumption that the driver's license must be recalled, and that the driver can rebut the presumption of incompetency only by submitting expert medical testimony. This is a very different issue than the one the Department raised before the trial court.
In the trial court, the Department asserted that, under its regulations, the six-month recall period is automatic when an Initial Reporting Form is received and that a licensee's only recourse is to wait until after that period expires to submit new medical evidence confirming he or she has not suffered a seizure in six months, thereby establishing competency to drive. The only issue that the Department raised below was that under the regulation, 67 Pa. Code § 83.4, "a person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that person has been free from seizure for at least six months immediately preceding with or without medication." (H.T. at 2, 8, R.R. at 16a, 22a.) The Department also reiterated to the trial court what it advised Licensee in the Recall Notice, i.e., that Licensee cannot be re-evaluated by a physician until after six months have passed. (H.T. at 2, R.R. at 16a; Recall Notice, R.R. at 30a (advising Licensee not to submit medical evidence to the Department until after April 17, 2012).) The Department raised this same issue in its Motion for Reconsideration before the trial court: "[C]ounsel for the Department gave Mr. Groft the required medical evaluation form, and clearly communicated the Department's position that under the regulations, he would have to get evaluated on or after April 17, 2012[,] and show that he has been seizure-free for six months in order to be reinstated by the Department's medical unit." (Department's Motion for Reconsideration at ¶6.)
The trial court properly ruled against the Department on that issue. The Pennsylvania Supreme Court and this Court have ruled that the regulation relied on by the Department, 67 Pa. Code § 83.4, violates the due process rights of licensees by creating an impermissible irrebuttable presumption concerning incompetency. Clayton, 546 Pa. at 351, 684 A.2d at 1064; Peachey v. Department of Transportation, Bureau of Driver Licensing, 979 A.2d 951, 955-56 (Pa. Cmwlth. 2009). We wrote in Peachey that the Supreme Court examined the regulation and "observed that a person who suffered a single seizure is presumed to be incompetent to drive for at least one year following that seizure, and, under the regulation, any medical evidence offered to rebut that presumption would be irrelevant, at least with the respect to the one-year recall.[] After stressing that procedural due process must be met before one's operating privileges can be revoked or recalled, the court in Clayton identified the essence of due process as a requirement for a meaningful hearing. The [C]ourt then pointedly noted that when a hearing excludes consideration of an element essential to the decision of whether a license shall be recalled, it does not meet that standard." Peachey, 979 A.2d at 955-56. The Supreme Court held that a de novo hearing before a trial court is not meaningful and deprives a licensee of due process if there is no evidence he can put forward to rebut the Initial Reporting Form and the outcome of the hearing is a foregone conclusion. Clayton, 546 Pa. at 352-53, 684 A.2d at 1065; Peachey, 979 A.2d at 955.
The version of the regulation at issue in Clayton required a one-year recall. The regulation was subsequently revised to require a six-month recall, which we addressed in Peachey.
In Clayton, the Supreme Court held that "[t]he real thrust of the Department's argument is that because the Medical Advisory Board has deemed persons who have suffered even one epileptic seizure unsafe to drive, that determination should remain inviolate. Clearly, precluding unsafe drivers, even those who are potentially unsafe drivers, from driving on our highways is an important interest. But, it is not an interest which outweighs a person's interest in retaining his or her license so as to justify the recall of that license without first affording the licensee the process to which he is due." 546 Pa. at 353, 684 A.2d at 1065. --------
The record is clear that the Department litigated this case in violation of clear precedent, urging the trial court to rubber-stamp Licensee's recall because, under the regulation, Licensee could not challenge the Initial Reporting Form until after he was seizure-free for six months. The Supreme Court and this Court have ruled that applying the regulations in that manner is not permissible.
On appeal, the Department now claims it "recognizes that the irrebuttable six-month presumption contained in the recall regulations is impermissible," and instead raises the issue that the regulation creates a rebuttable presumption that the licensee can overcome only through the submission of expert medical testimony. (Department Brief at 7-8 ("Where a recall is for definitive medical reasons such as a seizure disorder, expert testimony must be presented to rebut a medical report because the issue requires scientific or specialized knowledge or experience to understand.").)
The Department waived this issue by failing to raise and preserve it before the trial court. The Department failed to object to Licensee's testimony during the hearing or to otherwise argue that he was not competent to testify because only a medical expert may testify regarding a seizure condition. As such, the trial court and Licensee had no notice that the Department expected Licensee to present expert medical testimony. In fact, the Department confusingly told Licensee in the Recall Notice that, although Licensee could appeal the recall, he could not submit medical evidence until after the six-month recall period had expired. In its Motion for Reconsideration before the trial court, the Department made a generic argument that Licensee had failed to offer competent evidence in the context of its assertion that the recall is automatic and irrebuttable, but it again did not raise the issue of expert testimony. Finally, in its statement of matters complained of on appeal, the Department again raised these previously rejected issues and failed to raise the issue of expert testimony. Issues not raised before the trial court may not be raised on appeal. Pa. R.A.P. 1925(b)(4); Golovach v. Department of Transportation, Bureau of Driver Licensing, 4 A.3d 759, 764 (Pa. Cmwlth. 2010) (holding that Department waived objection to licensee's lay testimony and issue of whether expert testimony was required). Accordingly, the Department waived the issue of whether expert medical testimony is required to successfully appeal the recall of driving privileges due to a seizure disorder under Section 1519(c) of the Vehicle Code, 75 Pa. C.S. § 1519(c), and the regulation at 67 Pa. Code § 83.4.
Therefore, we affirm the trial court.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 13th day of December, 2012, the order of the Court of Common Pleas of York County is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge