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COMMONWEALTH v. ROBERT H. CARR AND SON (11/16/61)

November 16, 1961

COMMONWEALTH
v.
ROBERT H. CARR AND SON, APPELLANT.



Appeal, No. 39, March T., 1961, from order of Court of Quarter Sessions of Dauphin County, March T., 1959, No. 277, in case of Commonwealth of Pennsylvania v. Robert H. Carr and Son. Order reversed.

COUNSEL

G. Clinton Fogwell, Jr., with him Arthur L. Goldberg, and Reilly, Fogwell & Lentz, for appellant.

William W. Caldwell, First Assistant District Attorney, with him Martin H. Lock, District Attorney, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 196 Pa. Super. Page 411]

OPINION BY MONTGOMERY, J.

This is an appeal from an order of the lower court imposing a fine upon the appellant Robert H. Carr and Son and Ralph L. McKeeman for violating the overweight provisions of section 903(d) of The Vehicle Code of 1929, May 1, P.L. 905, as amended by the Act of 1955, June 30, P.L. 225, 75 P.S. 453(d)*fn1 as owners of a tractor and a trailer constituting an overweight combination of a tractor-trailer unit, said combination being physically operated by a third party, and neither the appellant, the trailer owner, nor McKeeman, the tractor owner, being present at the time of the violation. McKeeman has not appealed, or, if he has, his appeal is not before us at this time.

In February, 1959 the appellant entered into a contract to transport certain liquid sugar and syrup from Yonkers, New York to Toledo, Ohio. In order to comply with the statutory weight limitations imposed by the State of Ohio and by this Commonwealth, appellant entered into a contract with Ralph L. McKeeman under which McKeeman was to supply a tandem axle tractor to pull the appellant's trailer, pay its driver and all other transport expenses, for which the appellant agreed to pay him 22 1/2› per mile. Because the weight limit on Pennsylvania highways other than the turnpike was 60,000 pounds, and because they anticipated that the load might exceed this, appellant instructed McKeeman, while in Pennsylvania, to keep his trailer on the Pennsylvania Turnpike where the legal weight limitations would permit this heavy load. On February 28, 1959 in Lower Swatara Township, Dauphin County, a township officer discovered the tractor-trailer combination after the driver thereof had attempted to avoid apprehension by driving from a

[ 196 Pa. Super. Page 412]

    main highway into an alley. The driver had fled the scene before the officer arrived but was later identified and arrested. There was a sheet of paper pasted over the door of the tractor upon which were the words: "Leased to Robert H. Carr & Son", and the words: "Robert H. Carr & Son, Inc.", were painted on the trailer. After some difficulty the trailer was weighted, and the results disclosed the gross maximum weight of the tractor-trailer combination and load to be 79,900 pounds, or 19,900 pounds in excess of the legal limit.

On February 28, 1959 an information was sworn to by Arthur J. Stum, Jr. averring that on that day Ralph L. McKeeman and R.H. Carr and Son did, at or about the hour of 2:30 o'clock P.M., E.S.T., unlawfully permit one (unknown) to operate an overloaded motor vehicle on a public highway in the Commonwealth of Pennsylvania in violation of section 903, subsection "D", article 9, Act 403 P.L. 1929, as amended by Act 70, approved June 30, 1955. Robert H. Carr through his attorney appeared on the same day, waived the hearing and posted bond in the amount of $4,000 for a hearing in the Quarter Sessions Court of Dauphin County.

At the trial of the case before Judge KREIDER, the information presented by the Commonwealth averred that said McKeeman and R.H. Carr and Son "did unlawfully cause to be operated" an overloaded vehicle contrary to the same motor code provision. It was identical with the original information in other particulars.

The printed record (abbreviated) does not disclose whether a copy of either information was mailed to the defendants. However, in their argument R.H. Carr and Son admit receiving a copy of the second one. Nowhere is the variance in the two informations explained. However, it seems ...


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