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WILLIAM HARGER v. COMMONWEALTH PENNSYLVANIA (01/17/75)

decided: January 17, 1975.

WILLIAM HARGER, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in case of Commonwealth of Pennsylvania v. William Harger, No. 40 December Term, 1972.

COUNSEL

Silvio P. Cerchie, for appellant.

Eric Pearson, Special Assistant Attorney General, with him Robert J. Shostak, Special Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 17 Pa. Commw. Page 143]

This is an appeal from an Opinion and Order of the Court of Common Pleas of Butler County finding the appellant, William Harger, guilty of the summary offense of violating Regulation No. 6 of Moraine State Park on August 27, 1972, which regulation is No. 31.47 promulgated by the Department of Environmental Resources (DER) and which prohibits operation of certain watercraft in State Park waters.

Regulation 31.47, entitled "Miscellaneous Prohibitions," states in pertinent part: "(a) Air propelled type engines, boats designed for racing, hydroplanes or aquaplanes, surfboards, rafts, houseboats, matteresses, unseaworthy

[ 17 Pa. Commw. Page 144]

    watercraft or any craft sold as a 'toy' rather than a 'boat' shall be prohibited. . . . Novelty type watercraft of an unconventional design must have the specific approval of the Department. . . ."

Appellant was arrested and charged pursuant to the Act of June 24, 1939, P.L. 872, as amended, 18 P.S. ยง 4937, which states in pertinent part: "Whoever wilfully, negligently or maliciously violates any of the rules made for the government of . . . State Parks . . . shall, upon conviction thereof in a summary proceeding be sentenced to pay a fine not exceeding fifty dollars ($50.00) for each offense, or imprisonment not exceeding ten (10) days, or both, with costs of prosecution. No conviction shall be had for any act committed in violation of this section, unless it shall affirmatively appear that copies of such rules or notices were prominently posted in, upon or about said lands. . . ."

Appellant was found guilty of the offense and was ordered to pay a fine of $25.00 and costs of $11.00. As above indicated, his appeal to the Court of Common Pleas (and subsequent de novo hearing) was equally unsuccessful.

The watercraft for which appellant was charged for operating on Lake Arthur is known as the Wooster Hellion. It weighs approximately 130 pounds and has a length of 7 feet, 7 inches, and a width of 4 feet, 5 inches. It accommodates only two persons and is powered with a mere 10 horsepower motor. Yet it can reach 30 m.p.h. on water because of its design, which is really the crux of the problem here.

The Commonwealth's expert witness, Captain Charles E. Leising, draftsman of the subject regulation and Pennsylvania Boating Law Administrator, testified that the craft is a hydroplane designed for speed and is prohibited as a hazard on crowded State Park ...


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