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COMMONWEALTH PENNSYLVANIA v. FREDERICK E. MORRIS (07/27/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
FREDERICK E. MORRIS, APPELLANT

No. 1396 October Term, 1978, Appeal from the Decision of the Court of Common Pleas of Northampton County, Criminal Division - No. 209, 1978.

COUNSEL

Ronold J. Karasek, Bangor, for appellant.

Michael Vedomsky, Assistant District Attorney, Bangor, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ. Price, J., files a dissenting statement.

Author: Watkins

[ 268 Pa. Super. Page 270]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Northampton County, Criminal Division, finding appellant guilty of the summary offense of racing on the highways. Act of 1976, June 17, P.L. 162, No. 81, Sec. 3367, 75 P.C.S.A. § 3367.

It appears the appellant and another person pulled out of a gas station at about the same time, wheels spinning on the gravel, travelled a short distance and pulled into a diner, all of which was observed from an adjoining parking lot by the arresting officer. A citation was issued in which no speed was indicated.

Appellant moved for dismissal of the complaint but the motion was refused. Appellant contends that the complaint was fatally defective because it failed to specify speed as required by § 3366 of the Act, supra.

§ 3366 states:

"In every charge of violation of a speed provision in this subchapter, except for a violation of Section 3361 (relating to driving vehicles at safe speed), the citation or complaint shall specify the speed at which the Defendant is alleged to have driven and the applicable speed limit."

§ 3367 (the charge involved) clearly states:

"No person shall drive a vehicle on a highway in any race, speed, competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition."

Sections 3366 and 3367 are both a part of the subchapter F of the code. The language of Section 3366 is clear and unambiguous and mandatory. To say that § 3367(b) is not a speed provision of the act is to blind oneself to its language and should the Legislature have intended to exempt it from the mandate of § 3366 it would have done so as it did with § 3361.

[ 268 Pa. Super. Page 271]

An allegation as to speed was required in the complaint and was not there.

Judgment reversed and the appellant discharged.

PRICE, Judge, dissenting:

I do not believe that Section *fn33671 is a speed provision of the subchapter, and therefore the complaint under Section 3367(b)*fn2 is proper as drawn.


*fn2 75 Pa.C.S. § 3367(b) provides:

"No person shall drive a vehicle on a highway in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition."

*fn1 Act of June 17, 1976, P.L. 162, No. 81, Sec. 3367, 75 Pa.C.S. § 3367.


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