Appeal from judgment of Court of Quarter Sessions of York County, Aug. T., 1966, No. 40, in case of Commonwealth of Pennsylvania v. Henry Holte.
John J. Krafsig, Jr., for appellant.
P. Nelson Alexander, Assistant District Attorney, with him John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 209 Pa. Super. Page 499]
The appellant-defendant was charged with violating Section 1002(b)(9)*fn1 of The Vehicle Code of April 29, 1959, P. L. 58, 75 P.S. § 1002, for operating his motor vehicle at the rate of 96 miles per hour. Following a hearing he was found guilty and sentenced to pay a fine of fifteen dollars and costs. The only issue he
[ 209 Pa. Super. Page 500]
raises in this appeal is the sufficiency of the evidence to sustain the charge, the fact that the signs provided for in the second paragraph of said subsection (9) had been erected and were in place at the time and place of his alleged violation not having been proven.
In Commonwealth v. Anspach, 134 Pa. Superior Ct. 369, 4 A.2d 203 (1939), we held that proof of the existence of signs required by subsection (4) of said § 1002 was fatal to the case of the Commonwealth and discharged the defendant. Section (4), although fixing a maximum of 40 miles per hour in business, residential and park areas, permits local authorities to exercise discretion in deciding whether such limit should be reduced to 25 or 35 miles per hour, providing proper notice is given to the motorists of the limit adopted. The reason for such notice is obvious. If no signs were erected the motorist would be justified in presuming that 40 miles per hour was the limit as provided by statute, and should not be convicted of violating a lesser limit of which he did not have notice. However, we find nothing in that decision which would exonerate him if he were exceeding the 40 mile limit set up by the statute. In that case the motorist was traveling 40 miles per hour.
Nor do we think that Commonwealth v. Brose, 412 Pa. 276, 194 A.2d 322 (1963), is determinative because the provisions on which that case was founded clearly declared that, "No conviction shall be had upon evidence obtained through the use of radar apparatus unless -- . . . (iii) official warning signs have been erected on the highway by the proper authority indicating that radar is in operation." 75 P.S. § 1002(d.1)(1). We note that a similar mandate is included in (g) of said provision which provides for a minimum speed of 40 miles per hour on certain highways.
The present case is distinguishable in that the provision with which we are concerned contains no prohibition
[ 209 Pa. Super. Page 501]
of conviction if signs are not posted. It contains only a direction that signs be erected advising motorists when the Secretary of Highways exercises his discretion to raise the statutory maximum of 55 miles per hour to the higher rate. In this connection we note ...