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COMMONWEALTH v. WININGS (06/13/68)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 13, 1968.

COMMONWEALTH
v.
WININGS, APPELLANT

Appeal from order of Court of Quarter Sessions of Berks County, No. 7654 Miscellaneous Docket, 1967, in case of Commonwealth of Pennsylvania v. Richard H. Winings.

COUNSEL

Bernard Mendelsohn, with him Baskin & Mendelsohn, for appellant.

Arthur Ed. Saylor, First Assistant District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Watkins, J. Hoffman, J., dissents and would adopt on the dissenting opinion of President Judge Hess in the lower court.

Author: Watkins

[ 212 Pa. Super. Page 247]

This is an appeal by Richard H. Winings, the appellant-defendant, from the decision of the Court of Quarter Sessions of Berks County, affirming the judgment of guilty and the imposition of a fine and costs after hearing before a Justice of the Peace.

The appellant was charged with violating § 1002 (b) (8) of The Vehicle Code of 1959, P. L. 58, 75 PS § 1002*fn1 (p.p.). The specific charge was operating his motor vehicle at the rate of 66 miles per hour in a fifty-mile-per-hour speed limit zone. The testimony discloses that the vehicle was timed by radar and the appellant does not complain about the use of radar or

[ 212 Pa. Super. Page 248]

    the rate of speed determined by it. There was an official speed limit sign indicating a speed of 50 miles per hour for passenger cars and 40 miles per hour for trucks. The Commonwealth stipulated that there was no sign showing the end of the fifty mile speed zone.

The case was heard de novo and was referred to the court en banc by Judge Warren K. Hess on the sole question of whether or not the appeal should be sustained because of the stipulation that there was no sign showing the end of the fifty mile speed zone. The court affirmed the judgment of the Justice of the Peace two to one. Judge Bertolet speaking for the majority said: "The purpose of the sign at the end of the zone was for advising motorists when the specified limitation on their speed had come to an end. At the time of the violation for which he was arrested the defendant was in no way prejudiced by the missing sign or the information it would have given him when he went sixty-six miles per hour. This speed, it may be noted, was more than would have been permitted in the total absence of the speed zone signs, viz., fifty-five miles per hour. The provision of the law with which we are concerned contains no prohibition of conviction if the 'end of speed zone' sign is not posted."

The Commonwealth argues that this case is controlled by Com. v. Holte, 209 Pa. Superior Ct. 498, 229 A.2d 16 (1967). We agree. In that case the defendant was charged with violating § 1002(b)(9) of the Code, for operating his automobile at the rate of 96 miles per hour. Subsection (9) of the Code permits the Secretary to establish rates of speed beyond the statutory limit and states that where such zones are established signs shall be erected. The language as regards signs is the same as that contained in subsection (8). In the Holte case, supra, it was argued, as here, that the existence of the signs was not proven

[ 212 Pa. Super. Page 249]

    and so the conviction could not stand. This Court decided that the posting of the signs was directory and not mandatory.

The defendant contends that the case is controlled by Com. v. Anspach, 134 Pa. Superior Ct. 369, 4 A.2d 203 (1939). In the Holte case, supra, Judge Montgomery speaking for this Court, distinguished Anspach from Holte as follows, at page 500: "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."

In the instant case the appellant clearly violated the speed fixed by the 50 mile zone and for that matter the 55 mile legal limit which required no signs. What was said in the Holte case, supra, at page 501, is equally applicable here, i.e.: "The law does not intend a result that is absurd, impossible of execution or unreasonable. Statutory Construction Act of May 28, 1937, P. L. 1019, Art. IV, § 52, 46 P.S. § 552. Were we to hold that a motorist may be convicted of violating

[ 212 Pa. Super. Page 250]

    the 55 miles per hour limit without the presence of signs and not be convicted of exceeding 60 miles per hour because no signs were erected would give an absurd and unreasonable construction to the provision we are considering."

Decision affirmed.

Disposition

Order affirmed.


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