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COMMONWEALTH v. AGULNICK (06/28/76)

SUPERIOR COURT OF PENNSYLVANIA


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 that time proceeding in a westerly direction and appellant's visibility was sufficient to allow the pass. The place at which the pass was made was five-tenths of a mile east of the nearest "DO NOT PASS" and "KEEP RIGHT" sign.*fn2

At the conclusion of the Commonwealth's case appellant demurred to the evidence on the ground that there was no testimony that the signs were official signs or that they were approved by the Secretary of Highways.*fn3 Appellant also claimed that the signs did not

[ 240 Pa. Super. Page 607]

    indicate that men were working on the roadway. Appellant's demurrer was overruled and he proceeded with his case, after which he moved for judgment and was again overruled. We hold that the lower court erred in overruling appellant and that the Commonwealth failed to sustain its burden of proof. The burden was on the Commonwealth to prove that the "CAUTION, CONSTRUCTION AHEAD TWO MILES", the "DO NOT PASS" and the "KEEP RIGHT" signs were official signs authorized and approved by the Secretary of Highways for the purpose of indicating that men were working on the highway. As was correctly noted in Commonwealth v. Anderson, 21 Beaver 167, 170 (Pa. C.P. 1959): "[t]his is one of the material parts of the Commonwealth's case. If it fails to prove that the signs were official and that they were approved by the Secretary of Highways its case fails. It is not sufficient to prove merely that there were some makeshift signs along the highway . . . ." See also, Public Utility Repairs, Attorney General's Opinion, reported at 16 Pa. D. & C.2d 150 (1958).*fn4

[ 240 Pa. Super. Page 608]

Because the Commonwealth failed to establish that the signs in question were official signs, no violation of § 1008(d) of The Vehicle Code was shown and appellant should have been discharged.*fn5

Judgment reversed.

Disposition

Judgment reversed.

Dissenting Opinion by Price, J.:

I must respectfully dissent. The majority derives its definition of "official" as used in 75 P.S. § 1008(d),*fn1 from 75 P.S. § 1105(a),*fn2 which provides in pertinent part: "The Secretary of Highways of this Commonwealth shall forthwith make and publish regulations for the design . . . of all official traffic signs. . . ." However, because the offense occurred on the turnpike, I believe 75 P.S. § 1036(a)*fn3 is a more appropriate section to be applied in

[ 240 Pa. Super. Page 609]

    the instant case. This section provides in pertinent part: "The rules and regulations promulgated by the Pennsylvania Turnpike Commission governing the traffic upon any turnpike or highway under its supervision and control, shall become effective upon the publication thereof in accordance with law."

The record indicates that during the direct examination of one of the officers, the following testimony was given:

"Q. Are these signs official signs?

A. These signs were --

Mr. Ward: Objection, Your Honor.

The court: Overruled.

The Witness: These signs were erected by the Pennsylvania Turnpike. They have a yellow background with black lettering." (NT 18a)

This testimony, if believed, clearly indicated that the signs were those authorized by the Turnpike Commission to designate construction areas.

The officer stated that he had twenty-two years experience as a Pennsylvania State Policeman. The lower court could reasonably have concluded that an officer of such experience was competent to testify on the matter of these signs. Cf. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972).

I express no opinion concerning a similar occurrence on a state highway other than the turnpike and need not reach this question in the case at bar. However, under the present situation, I would affirm the judgment of sentence.


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