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COMMONWEALTH PENNSYLVANIA v. ROBERT J. KERNS (05/23/80)

filed: May 23, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT J. KERNS, APPELLANT



No. 1404 October Term, 1979, Appeal from Judgment of Sentence of Court of Common Pleas, Criminal Division, of Montgomery County, at No. 1491, 1979.

COUNSEL

Barry M. Miller, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Cavanaugh

[ 278 Pa. Super. Page 285]

On February 5, 1979, appellant, Robert J. Kerns went through a radar beam which had been set up by the Pennsylvania State Police on Route 73 in Skippack Township, Montgomery County. His vehicle registered at 50 miles per hour in a 35 miles per hour zone and he was, therefore, stopped and given a citation. After his conviction for speeding, he appealed to the Common Pleas Court where he was again found guilty on June 1, 1979. This appeal raises two issues: (1) whether the Commonwealth properly established the 35 mile per hour speed limit at the location in question, and (2) whether the radar apparatus employed was approved and certified as required by law.

The Vehicle Code of 1976 established general maximum speeds of 35 miles per hour in any urban district and 55 miles per hour in other locations.*fn1 In a later provision the Act permits the Department of Transportation or local authorities to determine maximum permissible speeds to be greater or lesser than these limits, not to exceed 55 miles per hour. This is to be done upon the basis of "an engineering and traffic investigation" to determine reasonable and safe limitations under the conditions found to exist.*fn2 Instantly, the argument is made that the violation took place in a non-urban district and that the Commonwealth, having failed to establish that the 35 mile per hour limit was set in accordance with the required engineering and traffic investigation, did not prove a critical element of the offense and so the conviction must be set aside. However, it is not the Commonwealth's initial burden to offer into evidence the results of an engineering and traffic study. Recently a panel of this Court was presented with the same argument and applied a statutory presumption that official traffic control devices have been so placed by the official act or

[ 278 Pa. Super. Page 286]

    direction of lawful authority. In applying the presumption*fn3 the Court stated:

It is uncontested that the speed limit signs were official signs and that they were posted so as to have been readily observable by the motoring public. The Commonwealth was, therefore, entitled to the presumption that they were lawfully authorized.

Commonwealth v. Gernsheimer, 276 Pa. Super. 418 at 422, 419 A.2d 528 at 530 (1980). The evidence in the instant case indicated that for at least eight years there were nine signs posted to indicate the 35 mile per hour zone of approximately a mile and a half in the Village of Skippack where the violation took place. The defendant offered no evidence that the devices were non-conforming or were not placed by the official act or direction of lawful authority and therefore under the authority of Gernsheimer his argument must fail.

Assuming arguendo, that there was evidence that the signs were not posted pursuant to engineering and traffic investigation conducted under the Vehicle Code of 1976, we still feel the Commonwealth must prevail. There is nothing in the language of 75 Pa.C.S.A. ยง 3363 (providing for alteration of maximum limits) to suggest that all previously altered limits existing on July 1, 1977, the effective date of the Vehicle Code, were rendered invalid until new engineering and traffic investigations took place. In fact the indications are otherwise. "Engineering and Traffic Study" is defined in the Code as:

An orderly examination or analysis of physical features and traffic conditions conducted in accordance with regulations of the department and conforming to generally accepted ...


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