Turk v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

*820DISSENTING OPINION BY

Senior Judge FRIEDMAN.

I respectfully dissent. The majority holds that, pursuant to sections 1519(a) and 1519(c) of the Vehicle Code,1 the Commonwealth of Pennsylvania, Department of Transportation (DOT) was authorized to require Mary L. Turk (Licensee) to pass a road test as a condition for the restoration of her driver’s license, which DOT recalled based on medical incompetency. (Majority op. at 815.) Because Licensee’s medical competency was not at issue before the Court of Common Pleas of Butler County (trial court), I cannot agree.

On August 26, 2008, DOT recalled Licensee’s driver’s license based on a medical report stating that Licensee had a condition that could interfere with her mental or physical ability to operate a motor vehicle and that the physician did not consider Licensee physically and/or mentally competent to operate a motor vehicle.2 On September 19, 2008, DOT sent Licensee a restoration requirements letter, indicating that the recall was the “result of health related problems,” i.e., that DOT would restore Licensee’s operating privilege when her health problems had resolved. (R.R. at 110a.)

Licensee appealed the recall, and a de novo hearing was held before the trial court. Section 1519(c) of the Vehicle Code states that, when an aggrieved person appeals a recall, “judicial review shall be limited to whether the person is competent to drive....” 75 Pa.C.S. § 1519(c). At the hearing, counsel for DOT informed the trial court that a subsequent medical report indicated that Licensee had no medical condition that would interfere with her driving and that Licensee was physically and mentally able to operate a motor vehicle. However, counsel indicated that DOT now was requiring that Licensee pass a road test as a condition of license restoration. Counsel for DOT then addressed the trial court as follows:

I would state that there isn’t an issue that stands before you at this point in time, basically. I don’t think the [trial court] has jurisdiction on the matter of whether or not the Commonwealth can require a licensee to take a test [prior to restoration]. The issue of her competency as far as her physical condition is not an issue anymore.

(R.R. at 79a-80a) (emphasis added). Nevertheless, the trial court issued an order directing restoration of Licensee’s operating privilege only if she passed a road test.

As indicated, the majority holds that sections 1519(a) and 1519(c) of the Vehicle Code authorize DOT to require a road test as a condition for restoration of Licensee’s operating privilege.

Section 1519(a) of the Vehicle Code provides, in pertinent part, as follows:

(a) General rule. — [DOT], 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.

75 Pa.C.S. § 1519(a) (emphasis added). This provision only authorizes DOT to require a licensee to undergo a test to determine competency to drive if there is reason to do so. However, based on a *821physician’s report stating that Licensee is competent to drive, DOT informed the trial court that Licensee’s competency to drive is no longer an issue and, thus, there was no issue properly before the trial court. Because section 1519(a) pertains only to competency to drive where DOT has reason to question competency, a non-issue here, it does not provide DOT with authority to impose a road test on Licensee prior to the restoration of her operating privilege.

Section 1519(c) of the Vehicle Code provides:

[DOT] 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 [DOT] in accordance with regulations to establish that such person is competent to drive a motor vehicle.

75 Pa.C.S. § 1519(c) (emphasis added). This provision requires a recall when incompetency has been established, to last only until DOT has evidence that competency has been restored. Here, DOT conceded before the trial court that competency was no longer at issue. Section 1519(c) contains nothing that authorizes DOT to impose a road test as a condition for the restoration of a driver’s license when competency is not at issue.3

Finally, the majority holds that the trial court had authority pursuant to section 1550(c) of the Vehicle Code to impose a road test as a condition for restoration of Licensee’s driver’s license. Section 1550(c) of the Vehicle Code provides that, on appeal from a license recall, the court shall determine whether the license should be recalled. However, section 1519(c) of the Vehicle Code specifically states that, on appeal from a license recall, judicial review is limited to whether the person is competent to drive. 75 Pa.C.S. § 1519(c). DOT removed Licensee’s competency as an issue before the trial court. Thus, I cannot accept the majority’s conclusion.

Accordingly, I would reverse.

. 75 Pa.C.S. § 1519(a) and § 1519(c).

. I no1e that DOT received an earlier medical form that did not contain such statements, but DOT sought a revised form addressing these issues. The physician's original form stated only that Licensee should be retested because of her age.

. In fact, DOT's regulation at 67 Pa.Code § 82.4(a) states, "When a physician provides clear information indicating that the person does meet the medical regulations for safe driving, the Medical Unit restores the driving privilege." Although DOT conceded that it had such information, DOT did not restore Licensee's operating privilege.