Appeal from judgment of Court of Common Pleas of York County, Aug. T., 1967, No. 32, in case of Commonwealth of Pennsylvania v. Mulford B. Simons, Jr.
P. Nelson Alexander, Assistant District Attorney, with him John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.
Donald H. Yost, with him Wogan, Elsesser & Yost, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Wright, P. J., and Watkins, J., dissent.
[ 214 Pa. Super. Page 338]
On the tenth of March, 1967 Cpl. Michael G. Morgalis swore to an information before Justice of the Peace Oliver C. Nace of Manchester Township, York County, Pennsylvania, charging appellee with driving at an excessive speed ". . . in violation of Section 1002, Sub-Section B, Paragraph 9, Article X, Act 32, P. L.
[ 214 Pa. Super. Page 33958]
of 1959 of the vehicle code of the Commonwealth of Pennsylvania, and amendments thereto."
After being duly summoned appellee appeared at a hearing before Justice of the Peace Nace with counsel on April 28, 1967 and entered a plea of not guilty. Following this hearing at which the informant Cpl. Morgalis appeared and testified, the appellee, who did not testify, was found guilty and fined ten dollars and costs. He did not take an appeal but secured a writ of certiorari from the Common Pleas Court of York County in response to which Magistrate Nace filed a transcript of his record. The return of the Magistrate certified, inter alia, the following data relating to the hearing:
"Witnesses sworn in behalf of Commonwealth: Cpl. Michael G. Morgalis 1195 Roosevelt Ave. York, Pa. State Police. Cpl. Michael G. Morgalis was sworn prior to testifying. Att. Yost when asked waived the right of the reading of the information to defendant & accepted it. It was testified in substance That the defendant was first seen near Strinestown interchange going at a rapid rate of speed going south on Rt. #83. Defendant was clocked at 90 miles per hour. Officer was asked by me the J.P. where the defendant was clocked? the answer to the question was Manchester Twp., York Co., Pa. . . . The defendant was permitted to cross-examine the witnesses: at which time he waived the right and said that he had no question. . . . Att. Yost said that the defendant was not going to testify."
The defendant excepted to the return of the Magistrate. The exception was sustained by the lower court. Hon. James E. Buckingham, Judge, held that the transcript of the Justice of the Peace was fatally defective on the authority of Commonwealth v. Ressler, 81 York Legal Record 1 (1967). This case held a
[ 214 Pa. Super. Page 340]
transcript defective because it failed to show in the summary of evidence how that defendant Ressler, who had been charged with speeding in violation of The Vehicle Code, had been clocked, or that ...