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)1that 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.
2

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 
3

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.
4

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 
5

(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).
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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).
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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, 
8

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.
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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.
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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.
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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. 
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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 denial3of 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).
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 :

O R D E R

AND NOW, this 6

th day of April, 2016, the Order of the Court of 

Common Pleas of Montgomery County is AFFIRMED. 

 

ROBERT SIMPSON, Judge