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COMMONWEALTH v. WEIK (12/17/58)

December 17, 1958

COMMONWEALTH
v.
WEIK, APPELLANT.



Appeal, No. 43, Oct. T., 1959, from judgment of Court of Quarter Sessions of the Peace of Lancaster County, Sept. T., 1957, No. 45, in case of Commonwealth of Pennsylvania v. Arlin R. Weik. Judgment affirmed.

COUNSEL

John W. Beyer, with him Arnold, Bricker Beyer & Barnes, for appellant.

Richard M. Martin, Assistant District Attorney, with him William C. Storb, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Ervin

[ 188 Pa. Super. Page 393]

OPINION BY ERVIN, J.

This is an appeal by the defendant from the sentence of the court below for violation of § 903 of The Vehicle Code, 75 PS § 453, making it unlawful to operate a commercial vehicle on any highway with a gross weight in excess of that provided for the various classes of vehicles therein described. The defendant had appealed to the court below from the summary proceeding before a justice of the peace.

From the testimony it appears that the defendant was traveling north on U.S. Route 222 in Providence Township, Lancaster County, operating a Ford truck loaded with crushed stone. The truck was owned by D.M. Stoltzfus & Son, Inc. and bore a ZZ class license. The prosecutor, State Trooper Fitzgerald, passed the defendant going in the opposite direction and as he did, some of the stone from the defendant's truck fell upon the state car. The trooper turned his car around and followed the defendant for approximately one mile before stopping him. At the point where defendant was stopped by the trooper, he was in Strasburg Township, approximately 200 feet north of the dividing line between Strasburg and Providence Townships. The trooper examined the defendant's weight slip for the loaded truck, which revealed that the truck was 9,090 pounds overweight. The defendant was then taken back into Providence Township, through which he had driven, to the nearest available justice of the peace in that township and there an information was filed charging him with operating an overweight truck in Providence Township. The testimony before the court below was to the effect that the defendant pleaded guilty to the charge without a hearing. The transcript filed by the justice of the peace does not disclose a guilty plea but states that the fine and costs of $853.50 were paid by the defendant's employer and that no hearing was requested.

[ 188 Pa. Super. Page 394]

Route 222 was under detour by the Highway Department between Mylin's Corner and Quarryville for construction purposes. The portion of the highway from Quarryville north to where the actual construction was under way was approximately four miles. This four-mile stretch was open for local traffic "and anyone else that had any business in there." At Mylin's Corner and Quarryville, barricades were erected with appropriate signs indicating that the road was closed except for local traffic. One could drive around the barricades. At the time of the occurrence there was other vehicular traffic on the four-mile stretch not under actual construction. The defendant was traveling on that part of the highway which was not under construction and was hauling stone from a quarry near Quarryville to the construction site.

The appellant's first contention is that the highway upon which he was traveling was not a highway as defined in the code since it was not open to the public generally. Section 903 of The Vehicle Code makes it unlawful to "operate on any highway" with a load in excess of the prescribed limit. Did the portion of the highway which was open to local traffic cease to be a highway? We think not. The effect of the closing of Route 222 and the erection of barricades and detour signs is provided for in the Act of June 1, 1945, P.L. 1242, §§ 423 and 424, 36 PS §§ 670-423, 670-424. While § 424 provides that any person who shall drive on, over or across any state highway which has been closed by the department shall be subject to a fine upon summary conviction before a justice of the peace, it is also provided therein that "Persons who have no outlet due to the closing of a highway may drive on, over or across such highway, with the consent in writing of, and subject to such conditions as may be prescribed by, the department or its agents or contractors,

[ 188 Pa. Super. Page 395]

    without being subject to the penalties imposed by this section." It is clear from a reading of the acts of assembly that through traffic is prohibited but that local traffic is permitted. It would be unfortunate if the local traffic need not obey the provisions of The Vehicle Code. This would mean that a local user could operate a motor vehicle at a speed of 100 miles per hour, endangering the lives and property of other lawful users of the highway, and be immune to arrest. We cannot believe that the legislature intended such a ridiculous result. One of the main purposes for limiting the weight for commercial trucks is to preserve the highways from destruction. Why then should a truck hauling construction material for a new portion of the highway be permitted to contribute to the destruction of a portion of the highway not actually under construction? While this Court in Bennett v. Boney, 168 Pa. Superior Ct. 385, 388, 77 A.2d 694, said: "When a road is closed by the State or, as in this instance, by competent municipal authority it ceases to be a highway subject, as such, to the provisions of The Vehicle Code of May 1, 1929, P.L. 905, as amended.", this utterance was not necessary to a decision of that case and therefore may be considered as obiter dictum. The Supreme Court, in Bennett v. Boney, 367 Pa. 249, 80 A.2d 81, reversed the Superior Court and held the defendant liable to a gratuitous licensee for affirmative or active negligence. Furthermore, in the Bennett v. Boney case, the accident occurred ...


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