Appeal from order of Court of Common Pleas of Clearfield County, May T., 1969, No. 56, in case of Commonwealth of Pennsylvania v. Dan P. Arnold.
Elmer T. Bolla, Deputy Attorney General, with him Ervin S. Fennell, Jr., Assistant District Attorney, John K. Reilly, Jr., District Attorney, R. Joel Weiss, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellant.
Carl A. Belin, Jr., with him Belin & Belin, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Jacobs, J. Hoffman, J., concurs in the result.
[ 215 Pa. Super. Page 446]
Section 625.1 of The Vehicle Code, as last amended July 15, 1968, P. L. , 75 P.S. § 625.1, provides, inter alia, as follows: "Any person operating or riding on a motorcycle shall wear both protective headgear and if such person is not wearing eyeglasses, an eye shield of a type approved by the secretary." After the effective date of the act the appellee operated a motor vehicle without wearing protective headgear, and was charged with a violation of the act before a justice of the peace in Clearfield County. Appellee waived a hearing before the justice of the peace and posted bond for trial before the Court of Common Pleas of Clearfield County, Criminal Division, formerly Court of Quarter Sessions.
Before the Clearfield County Court, the appellee asserted that the act requiring him to wear protective headgear was unconstitutional. No testimony was taken and after argument the court concluded that the disputed section of the act was unconstitutional and made the following order: "[T]he appeal is sustained, the charges dismissed and cash bail, if any, shall be returned to the party who supplied the same." The Commonwealth has appealed from this order.
The first question to be decided is whether the Commonwealth has a right to appeal in this case. If the order of the lower court be considered an acquittal, then the Commonwealth has no right to appeal. Commonwealth v. Hollinger, 170 Pa. Superior Ct. 180, 84 A.2d 794 (1951); Commonwealth v. Lodge No. 148, L.O.O.M., 188 Pa. Superior Ct. 531, 149 A.2d 565
[ 215 Pa. Super. Page 447]
(1959). Where, however, the question involved is purely one of law the Commonwealth may appeal from an adverse ruling in a criminal case. Gaskins Case, 430 Pa. 298, 305, 244 A.2d 662, 666 (1968). For example, the Commonwealth may appeal where an indictment has been quashed, or judgment arrested after verdict of guilty,*fn1 or from an order quashing the information.*fn2
In this case no testimony was presented. The only question raised was the constitutionality of the act. There was obviously no intention on the part of the lower court to find the appellee not guilty of violating the prohibition of the code. The court, in its memorandum, says: "Defendant operated a motorcycle without wearing headgear," a fact in itself sufficient to convict appellee. The ruling below was purely one of law and not an acquittal.*fn3 It was similar to quashing the information or arresting judgment, and appealable by the Commonwealth.
Precedent for our holding is found in Commonwealth v. Pahlman, 118 Pa. Superior Ct. 175, 179 A. 910 (1935). In that case, defendant was arrested for operating a truck which was overweight in violation of a borough ordinance. On appeal, the county court discharged the defendant ...