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COMMONWEALTH v. SIMMONS (12/14/67)

decided: December 14, 1967.

COMMONWEALTH, APPELLANT,
v.
SIMMONS



Appeal from order of Court of Quarter Sessions of Washington County, May T., 1966, No. 5, in case of Commonwealth of Pennsylvania v. William Simmons.

COUNSEL

Kenneth J. Yablonski, with him Harold V. Fergus, District Attorney, for Commonwealth, appellant.

Stephen D. Marriner, with him McCreight, Marriner & McCreight, for appellee.

Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 211 Pa. Super. Page 345]

This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Washington County quashing an indictment found against the defendant-appellee,

[ 211 Pa. Super. Page 346]

William Simmons, under the Bituminous Coal Mine Act, July 17, 1961, P. L. 659, Article VII, 703, 52 PS 701-703.

According to the record the defendant, William Simmons, was employed by the United States Steel Corporation as an assistant mine foreman, at its Maple Creek Mine located in New Eagle, Washington County, Pennsylvania. He was so employed for 15 years and also performed the duties of mine examiner or fire boss.

On the day in question the defendant reported for work on the 8:00 a.m. to 4:00 p.m. shift. It was an idle day at the mine. He was operating a locomotive and making his rounds as a fire boss in the mine and was emerging from one of the three mine portals. From the portal where he stopped the track continued outside the mine and merged with the tracks from the other two portals and then extended along a trestle to the tipple, where the coal is dumped into a bin, goes through the preparation plant and eventually to barges on the river.

As he stopped at the portal he realized the power in his locomotive was lost and observed that the trolley switch had been opened and was tagged with a danger sign. He then made an inspection of the tracks in the yard and on the trestle to the tipple and not finding anyone or any dangerous situation or evidence of work being done, he returned to the portal and observed that the tag was dated the day before. It was found that this date was an error. He then closed the switch, the wire shorted out and he immediately opened the switch. It was later discovered that there were men working on the wire and track at the tipple who were not present when he made his inspection but had arrived subsequently while he was walking the track back to the portal. No one was injured in any manner whatsoever. He was indicted under Sec. 703 which reads as follows:

[ 211 Pa. Super. Page 347]

"Criminal Penalties: Any person who shall intentionally or carelessly disobey any order given in carrying out the provisions of this act, or do any other act whatsoever, whereby the lives or the health of the persons employed, or the security of the mine or the machinery, are endangered, or who neglects or refuses to perform the duties required of him by this act, or who makes any false statement in any report, required by this act, or who is responsible for failure to comply with any decision made in accordance with this act, or who violates any of the provisions or requirements thereof, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in the court of quarter sessions of the county in which the misdemeanor was committed, unless ...


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