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July 24, 1959


Appeals, Nos. 203 and 204, Jan. T., 1959, from judgments of Superior Court, Oct. T., 1959, Nos. 42 and 43, affirming judgments of Court of Quarter Sessions of the Peace of Lancaster County, Sept. T., 1957, Nos. 45 and 29, in cases of Commonwealth of Pennsylvania v. Arlin R. Weik, and Same v. Guy S. Muth. Judgments reversed. Same cases in Superior Ct.: 188 Pa. Super.Ct. 391, and 188 Pa. Super. Ct. 401. Appeals by defendants from summary convictions before justice of the peace. Before JOHNSTONE, JR., J. Verdicts of guilty and judgments of sentence entered thereon. Defendants appealed to Superior Court, which affirmed judgments, opinions by ERVIN, J., dissenting opinions by WATKINS, J., in which GUNTHER, J., concurred. Appeals to Supreme Court allowed.


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 Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 108]


While a Pennsylvania State Trooper was patrolling U.S. Route No. 222 about one mile north of Quarryville in the Township of Providence, Lancaster County, a truck operated by defendant Weik passed him in the opposite direction and spilled part of a load of stone on the patrol car. The trooper, noticing that the truckload was unusually high, turned his car around and pursued it. A little more than a mile thereafter he halted the truck in Strasburg Township and examined Weik's weight slip. This showed that the gross weight was unlawful.

During a conversation with Weik another truck approached which was also owned by the owner of the Weik truck and when it reached them the trooper stopped defendant Muth, the operator, and examined his weight slip. This truck was also unlawfully overweight.

The trooper requested both operators to go with him from Strasburg Township to the office of a justice of the peace in Providence Township, where he signed informations against them charging them with violation of Section (a) of the Act of May 1, 1929, P.L. 905, Art. IX, § 903, as amended, 75 P.S. § 453, which makes it unlawful to operate a commercial vehicle on any

[ 397 Pa. Page 109]

    highway with a gross weight in excess of that provided for the various classes of vehicles therein described.*fn1 Each information alleges that the offense occurred in Providence Township.

The transcript filed by the justice of the peace does not disclose the entry of either a not guilty or guilty plea*fn2 but states that in the case of Weik, a fine and costs of $853.50 were paid by his employer and that no hearing was requested. In the case of Muth, the same situation appears except that the fine and costs amounted to $403.50. We therefore treat both cases as if a hearing had been waived. Thereafter both Weik and Muth petitioned the court of quarter sessions for allowance of an appeal which was granted and a hearing was held. At the hearing it was stipulated that the testimony in both cases would be the same except as to weight. The court, after a hearing de novo, found the defendants guilty and sentenced each respectively to pay the aforesaid fines and costs. From these judgments of sentence Weik and Muth appealed to the Superior Court which affirmed. This Court, on petition, allowed an appeal from the decision of the Superior Court. On appeal here, the issues and records of both cases were consolidated for argument and will be disposed of in one opinion.

Although three questions have been presented to us, we are of the opinion that only one merits serious discussion.*fn3 Defendants contend that since they were

[ 397 Pa. Page 110]

    arrested in Strasburg Township they were improperly taken back to Providence Township and hence the justice who heard the case was without jurisdiction. The Act of May 1, 1929, P.L. 905, Art. XII, § 1211, as latest amended, 75 P.S. § 741, provides inter alia: "Whenever an arrest is made upon view ... under the provisions of this section,*fn4 the officer making the arrest shall forthwith take the defendant before the nearest available magistrate in the city, borough, incorporated town, or township, where the alleged offense occurred." The arrest, however, does not of itself constitute the commencement of a judicial proceeding. It is necessary after having arrested the accused that the arresting officer file an information. Such informations "shall be brought before the nearest available magistrate within the city, borough, incorporated town, or township, in the county where the alleged violation occurred: ..." Act of May 1, 1929, P.L. 905, Art. XII, § 1201 as amended, 75 P.S. § 731.*fn5 These provisions are mandatory and jurisdiction depends upon their observance.

[ 397 Pa. Page 111]

    or justice of the peace, within the county where the offense is alleged to have occurred."*fn8 Thus it is seen that the purpose of the later legislation was to delimit the authority of a peace officer to take persons arrested on view for summary offenses to any committing magistrate in the county and to make it mandatory that he take the person so arrested to "the nearest available magistrate in the city, borough, incorporated town, or township where the alleged offense occurred" and that he should file an information "before the nearest available magistrate within the city, borough, incorporated town, or township in the county where the alleged violation occurred."

These venue provisions were inserted for the purpose of preventing oppression. They were designed to prevent officers from harassing motorists who violate the code by taking them to a magistrate at a distant point in the county, and also to prevent an improper alliance between the magistrate and the officer in the prosecution of violators.

Ordinarily, the place where the arrest is made on view and the place where the alleged offense occurred are the same. This is the place where the policeman sees the offense committed.

The case is not free of difficulty where, as here, we are dealing with a continuing offense. What does "nearest available" mean? Nearest available to what? There must be some point from which to judge. In the case of a continuing offense as many as a dozen different justices might be the "nearest available" if the officer is permitted to select any point along the journey as being the point of reference. It would defeat

[ 397 Pa. Page 113]

    the whole purpose of the legislation and introduce confusion if we were to accept such a view of the situation. That would permit a peace officer to follow an overloaded truck for many miles and then make the arrest at any place he names as the place where the violation occurred. It is his duty to make the arrest as soon as it reasonably may be made and thus prevent further violation. There is an order of primacy in such matters and it is the jurisdiction in which the offender is arrested which has first call upon him. Obviously the legislature ordained that at the earliest time consistent with the circumstances of the case the offender be delivered from executive authority into judicial authority so that there be no arbitrary interference with his right to a hearing or the furnishing of bail.

The authority conferred upon state policemen to arrest on view as was done here applies only to "... any person violating any of the provisions of this Act ...".*fn9 Thus it would appear that the offense for which the arrest on view is made must be the one which is being committed at the time the arrest is made. It is for this offense that jurisdiction of the person of the accused then attaches.

Although the law was violated both in Providence Township and in Strasburg Township, the "offense" for which defendants were arrested was that committed in Strasburg Township. It was therefore the duty of the arresting officer to bring the offender to the nearest available magistrate in Strasburg Township. Instead he ignored, through inadvertence, the just claim of Strasburg Township to adjudicate this proceeding*fn10

[ 397 Pa. Page 114]

    and brought the offender back to Providence Township. Our conclusion as to arrests on view is in accord with the legislative mandate as to arrests on warrant. In the latter instance where the circumstances justify the issuance of a warrant, it is the duty of the officer who serves such warrant to take the defendant before a magistrate in the municipality where the arrest is made in order to facilitate entry of bail or waiver of hearing. Act of May 1, 1929, P.L. 905, Art. XII, § 1202, as amended, 75 P.S.§ 732. Certainly the legislature did not intend to invest peace officers with greater discretion when arresting without warrant than when arresting with one.

We hold that under the circumstances of this case, the magistrate in Providence Township did not have jurisdiction. Such question could be raised even though defendants waived a hearing. Commonwealth v. Germsback, 167 Pa. Superior Ct. 106, 74 A.2d 489.


The judgments of the Superior Court are reversed and appellants Muth and Weik are discharged.

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