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COMMONWEALTH v. AGULNICK (06/28/76)

decided: June 28, 1976.

COMMONWEALTH
v.
AGULNICK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 2123 of 1975, in case of Commonwealth of Pennsylvania v. Ronald M. Agulnick.

COUNSEL

William J. Ward, with him Agulnick, Talierco, McShane & Supplee, for appellant.

No appearance entered nor brief submitted for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Cercone, J., concurs in the result. Dissenting Opinion by Price, J. Van der Voort, J., joins in this opinion.

Author: Jacobs

[ 240 Pa. Super. Page 604]

Appellant Ronald M. Agulnick brings this appeal

[ 240 Pa. Super. Page 605]

    from his conviction, on October 9, 1976, of violation of § 1008(d) of The Vehicle Code.*fn1 Appellant's sole claim is that the Commonwealth's evidence was not sufficient to establish a violation of that section. We agree and reverse the judgment of sentence entered below.

On May 19, 1975 appellant was issued a citation by the Pennsylvania State Police on the Pennsylvania Turnpike for passing "in an area where temporary warning signs were placed," in violation of The Vehicle Code, § 1008(d). He appeared on May 23, 1975 before Justice of the Peace CASSEL and entered a plea of not guilty. On July 17, 1975, following the granting of two continuances requested by appellant, a hearing was held at which he was found guilty. Appeal was then taken to the Court of Common Pleas of Lancaster County. The case was heard by President Judge JOHNSTONE and appellant was again found guilty. The instant appeal was taken following the imposition of sentence, which consisted of a fine of ten dollars.

Appellant's specific contention on appeal to this Court is that the Commonwealth did not, by the evidence presented, establish a violation of § 1008(d) of The Vehicle Code because it did not show that the temporary warning signs placed in the area where he passed a tractor and trailer were official signs, as required by that section. The Vehicle Code, Act of April 29, 1959, P.L. 58, § 1008(d), 75 P.S. § 1008(d) (1971) provides that "[t]he driver of a vehicle shall not overtake or pass, or attempt to pass, any other vehicle, proceeding in the same direction, between any points indicated by the placing of official temporary warning or caution signals indicating that men are working on the highway."

The evidence presented at appellant's hearing before the court below, viewed in a light most favorable to the Commonwealth, established the following. Appellant was

[ 240 Pa. Super. Page 606]

    proceeding east on the Pennsylvania Turnpike when he passed a sign reading "CAUTION, CONSTRUCTION AHEAD TWO MILES". He thereafter proceeded for approximately four to five miles. Along this route temporary signs were placed reading "DO NOT PASS" and "KEEP RIGHT". The westbound lane of the turnpike was closed and the eastbound lane was carrying traffic in both directions. There were no other construction warning signs after the sign reading "CAUTION, CONSTRUCTION AHEAD TWO MILES". However, the road was marked with the aforementioned no passing signs, located 200 to 300 feet apart. At the end of area marked "DO NOT PASS" and "KEEP RIGHT" there was a sign which read "END CONSTRUCTION". At a point located approximately four to five miles from the initial sign, appellant, while followed by a Pennsylvania State Policeman, passed a tractor-trailer. No traffic was at ...


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