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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samuel McKelvy

:

:

v.

: No. 1022 C.D. 2002

:
Submitted:
October
11,
2002
Commonwealth of Pennsylvania,
:
Department of Transportation, Bureau :
of Driver Licensing,

:

Appellant

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION BY
SENIOR JUDGE FLAHERTY
FILED: January 7, 2003

The Department of Transportation, Bureau of Driver Licensing
(Department), appeals from an order of the Court of Common Pleas of Allegheny
County (trial court) which sustained the statutory appeal of Samuel McKelvy
(McKelvy) from an indefinite recall of his operating privileges imposed by the
Department pursuant to 75 Pa. C.S. § 1519(c) based on his incompetency to drive.
We affirm.

On October 4, 2001, Department informed McKelvy that it had
information that McKelvy suffered from a cerebral vascular disease that could
affect his ability to drive. (R.R. at 38a.) In order to determine whether McKelvy
was medically capable of driving, Department informed McKelvy that he was
required to have a physical examination and have a physician complete the
enclosed general neurological form. (Id.) On October 10, 2001 Department sent
McKelvy another letter informing him that his physician must complete the

enclosed general psychiatric form so that a determination could be made as to
whether he met Department's medical standards for driving. (R.R. at 37a.)

In a notice dated October 11, 2001, Department informed McKelvy
that it had received medical information indicating that McKelvy has a
neuropsychiatric condition which prevents him from safely operating a motor
vehicle. (R.R. at 35a.) As such, Department notified him that his driving privilege
was recalled indefinitely as of November 15, 2001, pursuant to 75 Pa. C.S. §
1519(c). Department also informed McKelvy that this action would remain in
effect until it received medical information that his condition had improved and
also informed him of his right to appeal. McKelvy appealed to the trial court
which conducted a hearing.

At the hearing, over objection from McKelvy's counsel, Department
introduced documents including one identified as an initial reporting form. (R.R.
at 40a.) Department's form, which was completed by Dr. Kenneth Goetz,
diagnosed McKelvy as suffering from cerebral vascular disease. In response to the
question of whether the condition affected the patient's ability, from a medical
standpoint, to safely operate a motor vehicle, Dr. Goetz checked the box yes. (Id.)

McKelvy then introduced medical records. Brian Ice, who is
employed by Allegheny General Hospital, is the manager of the medical records
department and testified that the medical records are kept in the ordinary course of
the hospital's business and the entries contained therein are made
contemporaneously with events they depict. The records presented included a
general neurological form provided by Department and completed by Dr. Bernard
Andrews on March 7, 2002. In answer to the question of whether McKelvy had
any significant impairment in specified areas, Dr. Andrews responded no. In
2

response to the question of whether McKelvy was competent to operate a motor
vehicle, Dr. Andrews responded yes. (R.R. at 32a.) Dr. Andrews also completed a
psychiatric form on March 12, 2002, in which he again certified that McKelvy is
able to drive. (R.R. at 31a.) McKelvy also testified on his own behalf.

The trial court issued a decision on Mach 21, 2002 and determined
that Department failed to prove by a preponderance of the evidence that McKelvy
was incompetent to operate a motor vehicle. Both sides introduced Department
forms completed by physicians whose opinions differed as to whether McKelvy
was competent to operate a motor vehicle. Although Department argued that
greater weight should have been given to its physician, who was a psychiatrist
rather than to McKelvy's doctor, who was an internist, the trial court determined
that Department did not provide sufficient evidence to prove that its physician was
any more competent or credible than McKelvy's physician. As Department failed
to prove by a preponderance of the evidence that McKelvy was not competent to
operate a motor vehicle, the trial court sustained McKelvy's appeal. This appeal
by Department followed.1

On appeal, Department argues that Dr. Goetz's medical report was
properly introduced into evidence and that its introduction satisfied Department's
prima facie burden of proof. The burden then shifted to McKelvy. Department,
however, maintains that McKelvy failed to present competent evidence to establish
his competence to drive. Specifically, Department argues that the general
psychiatric report and the general neurological form prepared by Dr. Andrews

1 Our review is limited to determining whether necessary findings are supported by
competent evidence, errors of law were committed or whether the trial court abused its
discretion. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 723
A.2d 655 (1999).
3

were not admissible evidence and as such there was no competent evidence
introduced by McKelvy.

We initially observe that under 75 Pa. C.S. § 1519(c), "[t]he
department shall recall the operating privilege of any person whose incompetency
has been established under the provisions of this chapter." To sustain a suspension
under this provision, the department must show by a preponderance of the
evidence that the licensee was incompetent to drive. Klotz v. Commonwealth, 465
A.2d 113 (Pa. Cmwlth. 1983).

In determining competency, 75 Pa. C.S. § 1519(a) permits
Department to require a licensee to submit to examinations. Specifically, 75 Pa.
C.S. § 1519(a) provides in relevant part:
(a) General rule.- 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 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.

As to the admissibility of medical reports, 75 Pa. C.S. § 1519(b) states:

(b) Confidentiality of reports and evidence.- Reports
received by the department for the purpose of assisting
the department in determining whether a person is
4

qualified to be licensed and reports of examinations
authorized under this subchapter are for the confidential
use of the department and may not be divulged to any
person or used as evidence in any trial except that the
reports and statistics and evaluations used by the
department in determining whether a person should be
required to be examined under this subchapter shall be
admitted in proceedings under section 1550 (relating to
judicial review).

With respect to the recall or suspension of operating privileges, 75 Pa. C.S.
§1519(c) provides:
(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 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. Any person aggrieved by recall or
suspension of the operating privilege may appeal in the
manner provided in section 1550. The judicial review
shall be limited to whether the person is competent to
drive in accordance with the provisions of the regulations
promulgated under section 1517 (relating to Medical
Advisory Board).

Here, Department maintains that it met its prima facie burden through
the introduction of the medical report of Dr. Goetz. We agree. As stated in
Reynolds v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d
361, 364 (Pa. Cmwlth. 1997):

5

[W]e construe Section 1519(c) of the Code, 75 Pa. C.S. §
1519(c), as providing that DOT's burden at a de novo
hearing, to prove that the driver suffered from a medical
condition on the date of the recall that rendered him
incompetent to drive, may be satisfied by the introduction
of the medical report which DOT relied upon in recalling
the driver's license. This would establish DOT's prima
facie case and would shift the burden of going forward
with the evidence to the licensee. If the licensee presents
evidence at the hearing that he was, in fact, competent to
drive on the date of the 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.

As stated in Klotz, 465 A.2d at 117, "the Vehicle Code clearly intends the medical
report to be competent evidence in an incompetency proceeding ...." Id., 465 A.2d
at 117. Department nonetheless argues that Section 1519 permits only the
Department, not a licensee, to admit medical reports. We disagree.

We observe that Department requested and provided the forms
ultimately completed by Dr. Andrews on behalf of McKelvy. Department's
general psychiatric form and the general neurological form completed by Dr.
Andrews stated that McKelvy was competent to operate a motor vehicle. At the
hearing, counsel for Department acknowledged that it had the forms completed by
Dr. Andrews but decided not to restore McKelvy's operating privileges because it
considered Dr. Andrew's opinion equivocal.2 (R.R. at 28a.) Thus, Department
used the general psychiatric form and general neurological form it provided to

2 In the comment section on the general psychiatric form Dr. Andrews stated "[w]e only
met this patient x1. We do not have any old records or previous records to base our decision.
This is from today's evaluation. If there are past indications of difficulty perhaps a drivers
evaluation would be indicated." R.R. at 31a.
6

McKelvy to be completed by a physician and determined that his driving privileges
should not be restored. Inasmuch as Department sent the forms to McKelvy and
relied on the reports in determining not to restore McKelvy's operating privileges
and Section 1519 permits as evidence medical reports received by Department to
determine competency to drive, such reports were properly entered into evidence.

Accordingly, although Department established a prima facie case of
incompetency through admission of Dr. Goetz's report, McKelvy then countered
this evidence with a report from his medical provider who opined that McKelvy
was competent to drive. Absent additional evidence from Department, Department
failed to show by a preponderance of the evidence that McKelvy was incompetent
to drive.

In accordance with the above, the order of the trial court is affirmed.

JIM FLAHERTY, Senior Judge

7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samuel McKelvy

:

:

v.

: No. 1022 C.D. 2002

:
Commonwealth of Pennsylvania,
:
Department of Transportation, Bureau :
of Driver Licensing,

:

Appellant

:

O R D E R

Now, January 7, 2003, the order of the Court of Common Pleas of
Allegheny County at No. S.A. 1122 of 2001, is affirmed.

JIM FLAHERTY, Senior Judge