No. 370 April Term 1979, Appeal from the Order of the Court of Common Pleas of Cambria County, Criminal Division at No. C-358 of 1978.
D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellant.
William P. Kelly, Johnstown, for appellee.
Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., notes his dissent.
This is an appeal by the Commonwealth from an order quashing an information. The principal issue is whether a private corporation may be held criminally liable for homicide by vehicle.*fn1 On April 3, 1978, a school bus owned by the McIlwain School Bus Lines, Inc. [hereinafter, the corporation] and operated by one of its employes, ran over and killed 6-year-old Lori Sharp; she had just gotten off the bus and was walking in front it when she was run over. On May 26, 1978, the corporation was charged with homicide by vehicle. The corporation waived its right to a preliminary hearing, but subsequently filed a motion to quash the information against it. One ground of the motion was that the statute defining the offense of homicide by vehicle did not apply where the particular regulation allegedly violated involved the equipment required on a vehicle (its front and rear view mirrors) and not the operation of the vehicle. A second ground of the motion was that by definition, the
offense could only be committed by a natural person, not by a corporation. By order filed on March 16, 1979, the lower court granted the corporation's motion to quash. The court did not rule on the first ground of the motion. Instead, the court held, sua sponte, that the information issued against the corporation was insufficient. The court did not rule on the second ground of the motion, and held, as argued by the corporation, that the offense of homicide by vehicle could not be committed by a corporation.
The District Attorney of Cambria County by this information charges that on or about the 3rd day of April, 1978, McIlwaine [ sic ] School Bus Lines, Inc. the Defendant(s) above named in the County aforesaid and within the jurisdiction of this Court did being the owner of school bus No. 64 bearing Pa. registration SA27583 and being operated by Terry L. Rex, did unintentionally cause the death of Lori Sharp, age 6, when the operator of the bus did run over her with the bus when she got off the bus at Corinne St., Johnstown, Pa., and was crossing in front of the bus, all of which is against the Act of Assembly and the peace and dignity of the Commonwealth of Pennsylvania.
The lower court held the information "insufficiently drawn to appraise the defendant of the nature and cause of the accusation," slip op. at 5, assigning three reasons for this conclusion: 1) the information failed to state what law the corporation had allegedly violated; 2) it failed to state whether that law applied to the operation or use of a vehicle or to a traffic regulation; and 3) it failed to state whether the alleged violation of law was the cause of Lori Sharp's death. As the lower court stated, "The above three failures [refer to] essential elements of the offense . . . ." Slip op. at 5. The statute provides:
Any person who unintentionally causes the death of another person while engaged in the violation of any law of the Commonwealth or municipal ordinance applying to
Ashton, 175 Kan. 164, 262 P.2d 123(1953); State v. Forler, 38 Wash.2d 39, 227 P.2d 727(1951); State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480(1946); Gutierrez v. State, 44 Ariz. 114, 34 P.2d 395(1934); Williams v. State, 161 Miss. 406, 137 So. 106(1931); State v. Millin, 318 Mo. 553, 300 S.W. 694 (1927): indictment for homicide caused by automobile accident sufficient even though written in terms of statute without alleging factual details. But see State v. Gilbert, 89 N.H. 134, 194 A. 728(1937); State v. Gray, 38 N.M. 203, 30 P.2d 278(1934); People v. Maki, 245 Mich. 455, 223 N.W. 70(1929); Kimmel v. State, 198 Ind. 444, 154 N.E. 16 (1926): indictment for homicide caused by automobile accident insufficient for failing to allege facts giving rise to defendant's criminal liability.
In Pennsylvania the courts have still to decide whether an information or indictment charging homicide by vehicle must contain a specific citation to the law of the Commonwealth or municipal ordinance allegedly violated. Nor need we make that decision now. Instead of filing a motion to quash the information on the ground that it failed to comply with Pa.R.Crim.P. 225(b)(5), the corporation filed a request for a bill of particulars, asking that the Commonwealth "[p]lease specify the law of this Commonwealth or municipal ordinance which the Defendant was violating which caused the death of Lori Sharp." The Commonwealth answered as follows:
Sections 4551, 4552 of the Pennsylvania Vehicle Code require the Department of Transportation to promulgate rules and regulations pertaining to the equipment required on school buses.
Specifically the rules and regulations require that a mirror be placed on the front of the bus which will permit the operator to see any pedestrian in front of the bus. This mirror was missing.
Also the bus is required to be equipped with a rear view mirror to provide the operator with a proper view to the rear and side of the bus.
The rear view mirror was not properly positioned to afford the operator a proper view of the area.
Thus the Commonwealth's answer to the corporation's request for a bill of particulars responded to the three failures ascribed to the information by the lower court: it identified the law of the Commonwealth allegedly violated; in doing so, it made plain that the law applied to the operation or use of the corporation's vehicle, and not to the regulation of traffic; and although it did not say in so many words that the alleged violation had caused Lori Sharp's death, when read in light of the information, it said so plainly enough.
We recognize that it is arguable that despite the Commonwealth's answer to the corporation's request for a bill of particulars, the information remained insufficient. In Commonwealth v. Hershman, 171 Pa. Super. 134, 90 A.2d 314(1952), it is said that
[a] motion for a bill of particulars does not question the sufficiency of an indictment but rather assumes its validity. When filed, such bill of particulars does not become a part of the indictment. It therefore cannot remedy by way of amendment a fatal defect in an indictment which charges no offense under the law.
Id., 171 Pa. Super. at 139, 90 A.2d at 317.
In support of this proposition, this court cited Commonwealth v. B. & O. R.R. Co., 223 Pa. 23, 72 A. 278(1909). In that case, the indictment charged the defendant railroad with maintaining its track across a highway and frequently passing and repassing its trains over the track. The railroad's motion to quash the indictment was overruled, the lower court and this court being of the opinion that if the defendant was dissatisfied with the indictment, its remedy was to request a bill of particulars. Reversing, the Supreme Court said that:
[t]his [a bill of particulars] is never a remedy for an indictment so defective that it charges no offense: 1 Bishop's New Criminal Procedure, sec. 646. A bill of particulars cannot give life to what was dead when it left the grand jury . . . [It] can never take the place of what must affirmatively appear on the face of an indictment to which the accused must plead.
223 Pa. at 26-27, 72 A. at 278-279.
Here, however, as has been noted, the corporation did not move to quash the information on the ground that it failed to give sufficient notice of the offense charged and therefore failed to comply with Pa.R.Crim.P. 225(b)(5). Instead, having obtained a bill of particulars, the corporation moved to quash the information on the basis of information in the bill of particulars, alleging in paragraph (1) of its motion to quash as follows:
(1) The offense charged is the failure of the Defendant to have a proper mirror attached to a school bus, which is a violation of a regulation of the Department of Transportation relative to the equipment necessary for vehicles used in the transportation of children. This failure to provide a proper mirror is a violation of Section 4551 of the Motor Vehicle Code, is a summary offense and punishable by a fine of not less than $50.00 nor more than $100.00. Defendant submits that a violation of a departmental regulation is not a violation of any law of the Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic,
and is, therefore, not an offense or violation included in the offense of homicide by vehicle. We submit that the offense of homicide by vehicle was intended to cover moving or operational violations such as speeding, violation of red light or stop sign provisions and reckless driving, and it was not intended to provide for an alleged minor equipment violation which is a summary offense under the Motor Vehicle Code, and has nothing to do with the method of operating or using the vehicle. Defendant admits that the Vehicle Code does define "person" to include a corporation and Defendant could properly have been charged with a summary offense under Section 4551.
In these circumstances it was error for the lower court, sua sponte, to quash the information as insufficient. If the corporation was not claiming-and it was not-that the information failed to give it sufficient notice of the offense charged, there was no call upon the court to find insufficient notice. Commonwealth v. B. & O. R.R. Co., supra, is not in point, for there the defendant did move to quash the indictment as insufficient. Here, by quashing the information sua sponte, the lower court deprived the Commonwealth of the opportunity to argue that in fact the information was sufficient-in other words, to argue in support of the position adopted in some jurisdictions, that the information need not contain a specific citation to the law or ordinance allegedly violated.
What the lower court should have done was to respond to the argument made in paragraph (1) of the corporation's motion to quash, that "the failure . . . to have a proper mirror attached to a school bus . . . is not a violation of any law of the Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic, and is, therefore, not an offense or violation included in the offense of homicide by vehicle." Since the corporation has repeated this argument to us, we shall consider it.
The corporation concedes that if in fact it failed to provide proper mirrors for its school bus, as required by 75 Pa.C.S.A. § 4551, it ...