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.
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.
[ 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 ...