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filed: May 1, 1981.


No. 608 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Butler County, Pennsylvania, Criminal Division, Entered on June 7, 1979 at No. C.A. 156 of 1979.


Daniel P. McDyer, Pittsburgh, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

Price, Brosky and Montgomery, JJ.

Author: Montgomery

[ 286 Pa. Super. Page 475]

Appellant, at the time eight months pregnant, was driving her husband and two small children home after visiting relatives on January 9, 1979. The road conditions

[ 286 Pa. Super. Page 476]

    were icy and snow-packed, with a layer of freshly-fallen snow covering the road. At approximately 3 a. m., appellant's vehicle and a vehicle travelling in the opposite direction side-swiped each other. Appellant's vehicle continued to travel an estimated six-tenths of a mile before skidding into a snow embankment.

All of the occupants in appellant's vehicle were transported to a local hospital prior to the arrival of the state police at the scene of the accident. The investigating trooper discovered appellant's driver's license and vehicle registration left behind in her disabled vehicle. Meanwhile, appellant's brother-in-law was directed to the scene of the accident by appellant and her husband to assist the police. Finally, later that night, appellant's husband travelled to the state police headquarters, was questioned by the trooper, and retrieved his wife's purse.

On February 1, 1979, appellant received a summons in the mail charging her with a violation of 75 Pa.C.S.A. § 3743 for failing to stop at the scene of an accident involving damage to an attended vehicle.*fn1 Appellant was found guilty of said offense on April 30, 1979 after a non-jury trial heard de novo before the Honorable John C. Dillon as an appeal thereto from a conviction by the issuing authority in a summary proceeding. Timely post verdict motions were filed and denied. On June 7, 1979, appellant was fined $300. This appeal followed.

[ 286 Pa. Super. Page 477]

Appellant contends, and we agree, that the statute of limitations had run in this case before appellant was served with the summons.*fn2 The offense with which appellant was charged constituted a summary offense. 75 Pa.C.S.A. § 3743(b). The time within which prosecution for a summary offense must commence is found in 42 Pa.C.S.A. § 5553. Specifically, §§ 5553(b) and (c) state:

(b) Minor offenses. Except as provided in subsection (c), proceedings for summary offenses under the following provisions of Title 75 shall be instituted within 15 days after the commission of the alleged offense or within 15 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter:

Chapter 31 (relating to general provisions).

Chapter 33 (relating to rules of the road in general).

Chapter 35 (relating to special vehicles and pedestrians).

Subchapters A (relating to offenses in general) and C (relating to accidents and accident reports) of Chapter 37.

(c) Exception. Where proceedings are timely instituted against a person reasonably believed to have committed the offense charged and it subsequently appears that a person other than the person charged is the offender, proceedings may be instituted against the other person within 30 or 15 days, whichever is applicable, after the identity of the person is discovered and not thereafter.*fn3

In the facts sub judice, a delay of 23 days between the accident and the filing of the summons worked a fatal defect in the Commonwealth's case.

[ 286 Pa. Super. Page 478]

The Commonwealth correctly points out that summary proceedings must be instituted within the fifteen-day period after the discovery of the identity of the offender. However, nowhere does the Commonwealth contend that it only discerned appellant's identity as the driver subsequent to January 17, 1979. Moreover, the trooper was provided with sufficient evidence from the driver's license, vehicle registration, and interview with appellant's husband to have initiated timely proceedings.

This court has had occasion to review procedural rules concerning the institution of summary proceedings under the Vehicle Code. See Commonwealth v. Shelton, 260 Pa. Super. 82, 393 A.2d 1022 (1978). In Shelton, we noted that:

". . . summary proceedings, being in derogation of the common law, will require strict adherence to the law creating them . . ." (citations omitted . . . supra, 260 Pa. Super. at 85, 393 A.2d at 1023).

We will require no less than strict adherence to the statutory time period within which summary proceedings must be commenced. With this in mind, we must reject the lower court's argument that the fifteen day time period as promulgated by the legislature is "directory" only, and that the later subsection requiring that "in no event shall any proceedings be held or action taken pursuant to a summary offense under this title subsequent to two years after the commission of the offense" is mandatory.*fn4 To so hold would render the fifteen-day language mere surplusage. This we refuse to do.

Judgment of sentence reversed and appellant discharged.

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