*2 CRAIG, Before PALLADINO, DOYLE and JJ. PALLADINO, Judge.
The Department of Transportation (DOT) appeals an or- der of the Court of Common Pleas of Delaware County which reinstated the school bus driver license of Elizabeth C. Tinsley (Tinsley). affirm in part We and reverse in part.
Tinsley has been a school bus driver for Rose Tree Media (District) School District for eighteen years. In December 1985, Tinsley diagnosed a diabetic. Tinsley currently takes hypoglycemic medication to control her sugar blood level.
By a letter dated September 11, 1987, DOT recalled Tinsley’s school driving privileges bus pursuant to Section 1519(c) of Code, the 1519(c), Vehicle 75 Pa.C.S. which § requires DOT to recall the operating privileges of any person whose has incompetency been established. Tinsley was found to be incompetent under 67 71.3,1 Pa.Code § prohibits which person a having an established history clinical diagnosis of diabetes requires which the use of insulin or any other hypoglycemic drug being a school bus driver. Tinsley appealed this recall to the trial court.
After a de hearing, novo the trial court found that DOT’s of recall Tinsley’s school operating privileges violated Section 504 of the Rehabilitation Act of 29 U.S.C. (Rehabilitation Act).2 The trial court § reinstated Tins- provides 1. 67 Pa.Code pertinent part: 71.3 in (b) Requirements physical person physically examination. A qualified person: drive a school bus if the (4) history Has no established diagnosis medical or clinical currently diabetes mellitus requiring hypo- use of insulin or other glycemic medication. 2. Section provides the pertinent part: Rehabilitation Act in (1) that: the privileges upon the conditions
ley’s operating District, District, approved by physician or a selected prick Tinsley day on each which she perform a blood test vehicle, (2) if such prior to drive a school bus condition is not testing should reveal that diabetic control, suspend immediately the District is to order from the suspended she until further and is to remain court, (3) test results is to be copy trial a the blood sent to DOT. court erred argues
On that appeal,3 DOT in an to raise the Rehabilitation Act permitting Tinsley recall; license is not “otherwise appeal of a Act; under the Rehabilitation qualified” individual did not have the to reinstate the trial court license to certain conditions. motorist’s Rehabilitation first contends that because the DOT action, only it can independent Act creates an cause original under this proceeding brought raised court’s permit It contention that jurisdiction. DOT’s in an appeal Act raising on it has place an undue DOT because would burden it forewarning no this issue be raised and would be will forced defend of action at such collateral causes pleas common level. raised the Rehabilitation
Initially we note that validity regulation Act to under which her attack require DOT’s us to argument license was recalled. challenge hold that a licensee could not validity result, regulation appeal from a As a we on license recall. *4 handicaps qualified with in United No otherwise individual the title, shall, 706(8) solely by States as defined in section of this handicap, participation or of her his be excluded from the reason in, of, the be denied benefits or be to discrimination any program activity receiving or Federal financial assistance.... scope of a of the 3. Our review limited to determination whether evidence, findings supported by competent law of fact are errors of committed, were or the trial court’s decision demonstrates a manifest Commonwealth, v. 114 Pa.Commonwealth abuse of discretion. Lewis 326, (1988). Ct. A.2d 538 655 598 required regulations. to enforce This invalid we — Stober,
are in unwilling to do. In re Accordingly, Ct. —, (1987),(Stober I), Pa.Commonwealth 524 535 A.2d 156, 119 reargument, on Pa.Commonwealth Ct. 546 aff'd (1988), A.2d 155 acknowledged we that Rehabilitation Act regulation could be used to invalidate a in a appeal.
To cause establish a of action under the Rehabilita Act, tion Tinsley required (1) was that: is a prove she “handicapped Act; (2) individual” under the Rehabilitation qualified” (3) she is “otherwise for the position sought; she position was excluded from the sought solely by reason of handicap; (4) the program in activity question I, at —, federal receives financial assistance. Stober 524 A.2d at
It is uncontested handicapped is a individual Act; within the meaning operat- ing privileges handicap; were recalled of the because that DOT is the of federal financial recipient assistance. Therefore, the regard sole issue with to the applicability Rehabilitation Act whether is an “otherwise qualified” meaning individual within act. individual,
An qualified” “otherwise is one meets all who requirements a job spite handicap. South- Davis, 397, 442 Community College eastern 99 U.S. (1979). 60 person S.Ct. L.Ed.2d 980 A not who does meet all of the qualifications job qualified otherwise if recipient accommodation the federal would not alter the essential nature program cause an undue on recipient. burden the federal In a Id. case, a
Act must court evaluate condition of the if handicapped individual determine individual is qualified. otherwise School Board Nassau County, Arline, U.S. Florida 94 L.Ed.2d S.Ct. (1987). Arline, Thus that a fact teacher was tuberculosis, suffering disease, a contagious not suspension. sufficient sustain teacher’s The Su- preme based, Court remanded case for a determination *5 teacher, on the its effects on the facts of the illness and a modifi- accommodating require teacher would whether impose of the program of the essential nature cation (the federal recipient employer on the undue burden funds). licensing program nature the school bus
The essential appreciable and risks that would prevent any is to all controlling from the students driver prevent I. DOT contends safely and the bus. Stober a deviation are an risk because appreciable that diabetics impair result in an daily medication could from a routine for safety to ability provide driver’s ment possible ef speculation DOT’s about passengers. The proper inquiry appropriate. fects of diabetes not herself the effects of directed to her must be upon Arline. handicap job performance. bar, undisputed that blood Tinsley’s
In the case at it is after she shortly level under control since sugar has been 1985. Dr. Diwan diagnosed a diabetic December sugar accurately could be Tinsley’s testified blood level test, tested, prick to determine whether her blood performed control. This test can be diabetes under results 80 seconds. approximately obtained agree can that accommodation would We not program nature of the or be an either alter the essential noted, As previously Tinsley’s burden on DOT. undue has under control since release diabetes been Furthermore, has indicated it hospital. the District administer prick test to ensure willing would be blood under control and Tinsley’s diabetic condition remains if her under control. As a suspend her condition not result, greater DOT not The any burden. willing test is also to send blood results DOT. District daily over the Although would not have direct control DOT tests, any it not have direct contact with ordinarily does if licensee, does not check to see those e.g. everyday DOT wearing lenses are required who are wear corrective them. finally
DOT contends that trial court exceeded scope of its by reinstating Tinsley’s *6 to certain conditions. DOT contends it is its to set job the conditions with which individual must to comply operate school bus. DOT asserts that because trial court exceeded the scope its authority, reinstatement the license should be reversed. Because the recall of Tinsley’s operating privi- leges Act, was a violation trial court properly operating reinstated Tinsley’s privileges. However, requirements for by imposing the reinstatement operating privileges, the trial court exceeded the of its The scope authority. trial court had two choices: either affirm reverse the of Tinsley’s operating privileges. Department See Transportation, Bureau Miller, Licensing Driver 107 Pa.Commonwealth Ct. (1987). DOT, 528 A.2d court, 1030 not the trial is autho- regulations rized make rules and furtherance of DOT’s duties and responsibilities the vehicle code. Pa. It is C.S. 6103. for DOT to make the reasonable accom- § operating modations and set requirements in accordance with the law.
Accordingly, order the trial court Tins- reinstating school ley’s operating affirmed, license is but reversed as to the conditions which the trial court order imposed.
DOYLE, Judge, concurring and dissenting. I concur in the entire majority opinion with the exception the decision reverse as to the conditions which court, imposed. believe, court The trial should have full impose conditions, such otherwise DOT would unreasonable, be free to impose impossible, if not conditions which would have ultimately to be reviewed the trial court.
ORDER
NOW, September 27,
AND
1989, the order of the Court
of Common Pleas of
County reinstating Tinsley’s
Delaware
to the condi-
affirmed,
reversed as
but
license is
imposed.
court order
the trial
tions which