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COMMONWEALTH PENNSYLVANIA v. RUSSELL D. BEATTY (02/27/81)

filed: February 27, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
RUSSELL D. BEATTY, APPELLANT



No. 1096 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Action, Law, for the Court of Bucks, at No. 243, March, 1979.

COUNSEL

Chester A. Reybitz, Bethlehem, for appellant.

J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Watkins

[ 284 Pa. Super. Page 495]

In this appeal it is contended that the court below erred in failing to make a determination of guilt or innocence in a hearing de novo following an appeal from a summary conviction by the magistrate and in remanding the case back to the magistrate with instructions. We agree.

The order in question reads as follows:

"AND NOW, April 24, 1979, it appearing that under the evidence, the decision as to how much overweight the Defendant's truck carried, what allowances should be permitted to him and how the fine was levied were made by the weigh crew and the police officer, jointly or severally, and it further appearing that from the verdict as entered by the District Justice, the evidence would indicate that he did not make the determination, but that that determination was made by others, the matter is remanded to District Justice Wenger with instructions that he determine and submit to this Court the amount of overweight he finds and the fine he assesses, and the reasons for assessing that fine, and make report to this Court of such

[ 284 Pa. Super. Page 496]

    matters, at which time we will consider the present record and make an appropriate decision."

On January 11, 1970 at 10:30 A.M., the defendant, Russell D. Beatty, was operating a trailer truck, and dump trailer loaded with brick on Legislative Route No. 422 in Exeter Township, Berks County, Pennsylvania. He was stopped by State Trooper Eric D. Olena who had two PennDot employees weigh the truck on portable scales. A citation was then issued charging him with violating Section 4942(a) of the Motor Vehicle Code pertaining to gross weight. The citation stated the total gross weight to be 85,710 pounds and calculated the fine to be $3000 plus $10 costs.

The defendant was then escorted to the office of Magistrate George L. Wenger in Birdsboro, Pennsylvania and the truck was impounded until the payment of $3010 was made. The fine and costs were paid on the same day.

On March 12, 1979, at a hearing held before District Justice Wenger, the defendant was found guilty as charged and fined the sum of $3000 plus $15.00 costs. A notice of appeal from this summary conviction was filed on March 22, 1979 ...


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