          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Otis Erisman,                                :
                             Appellant       :
                                             :
               v.                            :    No. 1030 C.D. 2015
                                             :    Submitted: January 29, 2016
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing                   :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: April 6, 2016

               Otis Erisman (Motorist) appeals an order of the Court of Common
Pleas of Montgomery County (trial court)1 that denied his appeal from a suspension
of his operating privilege pursuant to Section 1519(c) of the Vehicle Code, 75 Pa.
C.S. §1519(c) (relating to incompetency to drive for medical reasons).          The
Department of Transportation, Bureau of Driver Licensing (DOT) recalled
Motorist’s operating privilege based on a cognitive impairment. Motorist claims
there was no competent evidence showing any cognitive disability. He contends
the trial court erred in not granting reconsideration when the physician who
authored the medical report underlying the recall recanted his medical opinion.
Discerning no error below, we affirm.




      1
          The Honorable Bernard A. Moore presiding.
                                   I. Background
             In November 2012, a police officer (Officer) observed Motorist
driving under the posted speed limit. Motorist then came to a stop in the middle of
the road on a double-yellow line and exited the vehicle into oncoming traffic.
After asking Officer for directions, Motorist returned to his vehicle and attempted
to twice turn around into oncoming traffic. He drove over a curb and into the grass
where Officer directed him to park. While Officer checked his license, Motorist
accelerated, causing the engine to scream. Because Officer believed Motorist was
unable to drive safely, he had the vehicle towed and Motorist was driven home.
Officer did not issue Motorist a citation.


             Officer reported his observations to DOT on a Form DL-118 “Local
Police Recommendation for: A Special Medical Driver Examination (Police
Recommendation).” Reproduced Record (R.R.) at 80a. The next day, according to
the Initial Reporting Form, Dr. Donald Corey (Reporting Physician), a staff
physician for the continuing care community where Motorist resides, examined
Motorist. Motorist’s name, date of birth, driver license number, and the date of the
exam appears on the complete Initial Reporting Form. R.R. at 79a. Under the
diagnosis section, Reporting Physician wrote Motorist suffers from “dementia” and
indicated his dementia interferes with his ability “to safely operate a vehicle.” Id.


             Based on this incident, DOT sent Motorist an official notice of recall
(Recall Notice). The Recall Notice informed Motorist that his license would be
recalled, effective November 29, 2012, pursuant to Section 1519(c) of the Vehicle
Code, 75 Pa. C.S. §1519(c). The Recall Notice advised Motorist that the medical



                                             2
information DOT received indicated Motorist’s cognitive impairment rendered him
unable to safely operate a motor vehicle. R.R. at 76a. The Recall Notice also
advised that his license would remain recalled until he demonstrated he met
minimum standards for driver competence. With the Recall Notice, DOT enclosed
Form DL-131, Cognitive Impairment Form to allow Motorist’s healthcare provider
to report on his medical condition.


             Reporting Physician then completed a second reporting form (Second
Report). In the Second Report, Reporting Physician wrote Motorist suffered from
“dementia with loss of cognition,” and restated this condition affected Motorist’s
ability to safely operate a vehicle. R.R. at 75a.


             In response to Motorist’s request, DOT sent Motorist a letter enclosing
another Cognitive Impairment Form and Form DL-123, General Impairment Form
(Letter). Again, DOT advised Motorist to have the enclosed forms completed by
his healthcare provider.     The Letter specifically instructed: “Your healthcare
provider must address the incident that occurred on 11/06/12.” R.R. at 74a.


             Motorist filed a statutory appeal with the trial court, alleging the recall
was inappropriate because he did not have a cognitive impairment. Motorist also
sought a supersedeas, which the trial court granted after a brief hearing. Motorist
did not testify. Motorist’s counsel submitted another Cognitive Impairment Form
completed by Motorist’s physician of 16 years, Seth Braunstein, M.D. (Treating
Physician), stating he had no cognitive impairment. The trial court did not admit
the form as evidence. DOT did not oppose the supersedeas. R.R. at 12a.



                                           3
             After two years of continuances, the trial court held a de novo hearing.
At the hearing, the trial court admitted into evidence DOT’s packet of certified
documents, which included the Recall Notice, the Initial Reporting Form, a
Cognitive Impairment Form, the Second Report, and the police officer’s
recommendation to DOT. DOT did not offer any other evidence.


             Motorist re-submitted the Cognitive Impairment and General Medical
Forms submitted at the supersedeas hearing, completed by Treating Physician. He
also submitted a General Medical Form and a Cognitive Impairment Form
completed by a new geriatric physician, John Bruza, M.D., who examined Motorist
a week before the hearing. The forms state no cognitive impairment exists.


             In addition, Motorist testified on his own behalf. As to the Incident,
he explained he was lost at the time, and stopped to ask Officer for directions. As
to the alleged cognitive impairment, he testified that Reporting Physician never
examined him; he was his wife’s physician, not Motorist’s physician. He admitted
he received a letter from DOT requesting that he take a driver’s test. However, he
refused the re-test on the advice of counsel.


             Ultimately, the trial court dismissed Motorist’s appeal. It determined
DOT met its prima facie burden that Motorist was incompetent to drive, which
Motorist did not overcome.


             Days after the hearing, Motorist filed a motion for reconsideration,
appending an affidavit by Reporting Physician recanting his earlier medical reports



                                          4
(Affidavit). In the Affidavit, Reporting Physician attested he was not Motorist’s
treating physician, and he did not examine him. Rather, Reporting Physician stated
he mistakenly completed the forms believing they referred to Motorist’s wife who
he treated. The trial court denied reconsideration.


              Motorist filed a concise statement of the errors complained of on
appeal. See Pa. R.A.P. No. 1925. In its Rule 1925(a) opinion, the trial court
reasoned Motorist did not submit sufficient evidence to overcome DOT’s evidence.
Specifically, it determined Motorist’s medical experts offered no explanation for
the November 2012 incident that triggered the proceedings. In addition, the trial
court noted that Treating Physician’s specialty was in the treatment of diabetes, not
neurological disorders. The trial court also found Motorist’s testimony failed to
establish competency. Tr. Ct., Slip. Op., 8/25/15, at 5. The trial court did not
consider the Affidavit because Motorist did not submit it before the record closed,
and it constituted inadmissible hearsay.


                                       II. Discussion
              On appeal,2 Motorist argues the trial court abused its discretion
because its determination relies on hearsay. He asserts Officer’s recommendation
and Reporting Physician’s reports should not have been considered.                   He also
contends the trial court erred in denying reconsideration when Reporting Physician
recanted his reports regarding Motorist’s cognitive disability.

       2
         Our review is limited to determining whether the trial court’s necessary findings were
supported by substantial evidence and whether the court committed a reversible error of law or
abused its discretion. Helwig v. Dep’t of Transp., Bureau of Driver Licensing, 99 A.3d 153
(Pa. Cmwlth. 2014).



                                              5
             Section 1519(c) of the Vehicle Code, relating to a recall or suspension
of motor vehicle operating privileges, provides in part:

             [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).


             In a medical recall proceeding, it is DOT’s burden to prove by a
preponderance of the evidence that the licensee is medically incompetent to drive.
Byler v. Dep’t of Transp., Bureau of Driver Licensing, 883 A.2d 724 (Pa. Cmwlth.
2005).   “A preponderance of the evidence standard, the lowest evidentiary
standard, is tantamount to ‘a more likely than not’ inquiry.” Helwig v. Dep’t of
Transp., Bureau of Driver Licensing, 99 A.3d 153, 158 (Pa. Cmwlth. 2014)
(quoting Carey v. Dep’t of Corr., 61 A.3d 367, 374 (Pa. Cmwlth. 2013)).


             DOT may make a prima facie case of medical incompetency by
introducing the medical report submitted to DOT by a healthcare provider. Meter
v. Dep’t of Transp., Bureau of Driver Licensing, 41 A.3d 901 (Pa. Cmwlth. 2012).
Once DOT establishes a prima facie case, the burden of production then shifts to a
licensee to establish he was competent to drive on the date of the recall or has since
become competent to drive. Id. If the licensee is successful, the burden shifts back
to DOT to present additional evidence of incompetency to satisfy its ultimate
burden of proof. Helwig. Although the burden of production shifts, “[t]he burden
of persuasion never leaves [DOT].” Id. at 158 (citation omitted).

                                          6
             The trial court is the ultimate finder of fact. Byler. It is within the
trial court’s discretion to make credibility and persuasiveness determinations. Id.
In making a determination of whether a licensee is competent to drive, a trial court
may consider “the timing and issuance of multiple forms, the conflicting
statements contained on the forms and the lack of clarity regarding the extent to
which [a] [p]hysician’s opinion were based on current examinations.” Helwig, 99
A.3d at 158 (quoting Turk v. Dep’t of Transp., Bureau of Driver Licensing, 983
A.2d 805, 815 (Pa. Cmwlth. 2009)).


             A trial court’s decision to sustain a recalled licensee’s appeal must be
supported by substantial evidence. Meter; Dewey v. Dep’t of Transp., Bureau of
Driver Licensing, 997 A.2d 416 (Pa. Cmwlth. 2010). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Zaleski v. Dep’t of Transp., Bureau of Driver Licensing, 22 A.3d 1085
(Pa. Cmwlth. 2011).


                                 A. Competent Evidence
             First, Motorist challenges the competency of DOT’s evidence when
the documents contained in the certified packet were not corroborated by testimony.
Generally, we agree with Motorist that such documents would be inadmissible
hearsay. However, his position disregards the statutory basis for admitting such
reports in recall proceedings.


             Pursuant to Section 1519(b), medical reports received by DOT for
purpose of determining license qualifications, although not generally admissible,



                                          7
may be admitted in proceedings under Section 1550 of the Vehicle Code (relating
to recall, suspension or revocation of a driver’s license). 75 Pa. C.S. §1519(b);
Ploof v. Com., 590 A.2d 1318, 1320 (Pa. Cmwlth. 1991). “[T]he medical report
itself is sufficient to meet and overcome [DOT]’s initial burden to establish a
prima facie case.” Helwig, 99 A.3d at 158 (quoting Meter, 41 A.3d at 905-06).


              Here, to meet its initial burden, DOT submitted the certified packet.
The packet contained two reports completed by Reporting Physician in November
2012, shortly after the triggering incident. The packet also contained Officer’s
recommendation. Reporting Physician, who was the physician at the facility where
Motorist resided, stated Motorist had dementia and his condition would affect his
ability to drive.


              The trial court noted Reporting Physician wrote Motorist’s name on
the form, his driver’s license number, date of birth, and the date of examination.
Also, Reporting Physician signed the Initial Reporting Form. Reporting Physician
then completed a Second Report, confirming the diagnosis of dementia. Again, the
form contained the identifiers for Motorist, the date of the re-exam, and Reporting
Physician signed it.


              The trial court credited the two reports of Reporting Physician. Their
admission in the recall proceeding was proper under Section 1550. Accordingly,
the trial court did not err in relying on such evidence. Consequently, the trial court
did not err in finding DOT presented competent evidence to satisfy its prima facie
burden.



                                          8
             Having met its prima facie burden, the burden of production shifted to
Motorist. Helwig. Motorist testified on his own behalf. Although the hearing was
continued numerous times, Motorist did not submit any medical testimony to
support the conflicting medical reports of Treating Physician that stated he had no
cognitive impairment.


             “[T]he trial court, acting as fact-finder … [determines] whether
[Motorist] carried [his] burden to prove competency to drive.” Id. at 161. Here,
the trial court determined Motorist did not rebut DOT’s evidence through medical
evidence or his testimony.


             The record here contains conflicting medical reports. The trial court
credited the reports completed by Reporting Physician over those of Treating
Physician. Tr. Ct., Slip Op. at 5. That is the trial court’s prerogative. Helwig.
The trial court emphasized Reporting Physician’s reports contained accurate
identifiers for Motorist. The General Medical Form for Treating Physician did not
contain such identifiers. In addition, the Treating Physician specialized in diabetes,
not neurology.    Also, the Cognitive Impairment Form completed by Treating
Physician was not admitted into evidence. Further, the trial court noted that none of
Motorist’s medical experts offered any explanation for the triggering incident.


             Because Reporting Physician’s reports were properly admitted, the
dispute comes down to a credibility determination. The trial court resolved the
conflicting evidence in DOT’s favor. We cannot disturb this determination on
appeal. Helwig; Byler.



                                          9
                                   B. Driver’s Test
              Next, we consider Motorist’s contention that DOT lacks the authority
to require him to take a driver’s test to show his competency to drive. He asserts
his submission of reports by Treating Physician to DOT sufficed to show his
competence. He also argues DOT’s oral request that he perform a driver’s test
violated his due process rights.


              At the outset, Motorist premises his argument on the allegation:
“[DOT] never gave [Motorist] written notice that he was required to take any
driver test.” Appellant’s Br. at 16 (emphasis in original). That statement conflicts
with Motorist’s admission during the hearing that “I think there was a letter to that
effect.” R.R. at 54a (referring to DOT’s request for a re-test).


              Moreover, this Court’s decisions establish that DOT has the authority
to request a motorist to take a driver’s test when there is conflicting or unclear
medical evidence regarding the matter. Turk; see also Neimeister v. Dep’t of
Transp., Bureau of Driver Licensing, 916 A.2d 712 (Pa. Cmwlth. 2006). Pursuant
to Section 1519(a) of the Vehicle Code, DOT is permitted to require Motorist to
take a driver’s test to show his competency to drive. 75 Pa. C.S. §1519(a).


              Specifically, Section 1519(a) provides DOT “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.” Id.
Accordingly, DOT did not violate Motorist’s due process in requesting he undergo
a driver’s test.



                                          10
                                C. Reconsideration
             Lastly, we consider the trial court’s denial of Motorist’s request for
reconsideration.   Motorist argued the Affidavit sufficiently recanted Reporting
Physician’s reports such that the matter should be reconsidered discounting them.
We disagree.


             First, there is no indication that the information contained in the
Affidavit was not available at the time of the hearing. Considering the hearing was
continued for two years, Motorist had sufficient time to obtain the facts contained
in the Affidavit before the record closed. Significantly, there is no indication that
Reporting Physician was unavailable to testify at the hearing or to provide
documentary evidence while the record remained open.


             Second, during the hearing, Motorist did not request to supplement the
record with the Affidavit.     Third, regardless of its timeliness, the Affidavit
constitutes hearsay. Pa. R.E. 801.


             Finally, Motorist offered no explanation during the hearing as to how
Reporting Physician received the forms relating to Motorist’s alleged lack of
cognition in the first place. The Affidavit likewise offers no explanation in this
regard. The Affidavit states simply that Reporting Physician did not remember
why or how he erred in completing the reports as to Motorist. The two reports
state Motorist’s name, driver’s license number, birth date and examination date.
Some explanation of this alleged mistake, committed twice in two separate reports,
is needed.



                                         11
             Moreover, a motion for reconsideration “is addressed to the sound
discretion of the trial court.” Belleville v. David Cutler Grp., 118 A.3d 1184, 1194
(Pa. Cmwlth. 2015) (quoting Moore v. Moore, 634 A.2d 163, 166 (Pa. 1993)). The
trial court was in the best position to decide if additional evidence was necessary in
reassessing its original order. Moore. Considering the above circumstances, we
perceive no abuse of discretion in the trial court’s denial3 of reconsideration here.


                                    III. Conclusion
             For the above reasons, the order of the trial court sustaining Motorist’s
license recall is affirmed.




                                         ROBERT SIMPSON, Judge




      3
         Further, a trial court’s order denying reconsideration of a final order is not an
appealable order. Edwards v. Pa. Bd. of Pardons, 970 A.2d 425 (Pa. 2008).



                                           12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Otis Erisman,                        :
                       Appellant     :
                                     :
            v.                       :   No. 1030 C.D. 2015
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :



                                   ORDER

            AND NOW, this 6th day of April, 2016, the Order of the Court of
Common Pleas of Montgomery County is AFFIRMED.




                                    ROBERT SIMPSON, Judge
