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decided: March 24, 1982.


Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. D. Wayne Austin, No. 1270 C 1980.


Anthony J. Martin, Martin, Durkin & Martin, for appellant.

Patrick A. Merlino, Assistant District Attorney, with him Albert M. Nichols, District Attorney, for appellee.

President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case. Dissenting Opinion by Judge Blatt.

Author: Crumlish

[ 65 Pa. Commw. Page 436]

D. Wayne Austin appeals from a Westmoreland County Common Pleas Court order imposing fines for Pennsylvania Vehicle Code*fn1 (Code) violations. We affirm.

Austin was hauling a bulldozer on a tractor-trailer combination*fn2 in Westmoreland County. The loaded vehicle, weighing 143,450 pounds, exceeded the maximum legal weight limit.*fn3 Although Austin had secured and was carrying special hauling permits issued by the Pennsylvania Department of Transportation*fn4 (PennDOT), he did not comply with certain general permit conditions*fn5 contained in the regulations promulgated under the Code. 67 Pa. Code 51.10(8)*fn6 provided that a special permit was automatically invalidated by the violation of any condition specified in the regulations.

[ 65 Pa. Commw. Page 437]

Austin was cited for violating Code sections 4901*fn7 (a "non-weight" violation, i.e., not displaying the required placards and red flags, and operating without pilot cars), and 4941*fn8 (a "weight" violation, i.e., operating a combination whose weight exceeded the authorized maximum), notwithstanding that the vehicle's weight was within the 145,000-pound limitation allowed by the special permit. The district justice fined Austin $50.00 plus costs for the "non-weight" violation*fn9 and $20,400.00 plus costs for the "weight" violation.*fn10 The common pleas court affirmed, but reduced the "weight" violation fine to $20,250.00.

Austin claims that the provision, automatically invalidating a special permit for non-compliance with the regulatory conditions, is without PennDOT's statutory authority. Section 4961(a)(2) of the Code*fn11 authorizes PennDOT to allow, by special permit, the operation of a combination carrying a nondivisible load (e.g., a bulldozer) which exceeds the legal maximum weight. Section 4962(a)*fn12 authorizes PennDOT to prescribe conditions of operation under the permit as it " shall deem necessary to protect the safety of highway users, to promote the efficient movement of traffic or to protect the highways." Under this authority,

[ 65 Pa. Commw. Page 438]

PennDOT duly promulgated the automatic invalidation regulation, hence it has the force of law. See Newport Homes, Inc. v. Department of Transportation, 17 Pa. Commonwealth Ct. 317, 326, 332 A.2d 568, 574 (1975).

Austin also contends that, since he posted bond for the special permit,*fn13 any fine imposed for operating the combination in excess of the prescribed weight is duplicative. He argues that the posted security entitled him to drive the overweight vehicle without fear of sanctions. We disagree.

The purpose of the Code's overweight provisions is to protect the Commonwealth's highways from damage and to insure the safety of those using the highways. Commonwealth v. Smith, 409 Pa. 521, 525, 187 A.2d 267, 270 (1963). The bond was required in the event that the permitted vehicle were to cause damage. The security's posting was not, as Austin claims, a release from criminal liability under the Vehicle Code. Austin was prosecuted for violating Code Sections 4901(a) and 4941(a), neither of which requires road damage to be proved, hence it is irrelevant that security was posted. Austin would have been insulated from this liability if he simply had complied with the special permit conditions. A party seeking the protection of a special permit must bring himself within the terms of the permit, which Austin had failed to do. Commonwealth v. Curley, 189 Pa. Superior Ct. 506, 509, 151 A.2d 656, 658 (1959).

We also cannot agree with Austin's claim that the lower court was without original jurisdiction to decide this case on the basis that an initial administrative review by PennDOT was required. 67 Pa. Code § 1515

[ 65 Pa. Commw. Page 439]

    clearly stated that any regulation's violation would invalidate the permit and constitute grounds for prosecution. Jurisdiction over Austin was initiated under Pa. R. Crim. P. 51(A)(1).*fn14 Original jurisdiction of this matter lies with the District Justice under 42 Pa. C.S. § 1515(a)(1).*fn15 An appeal to the common pleas court by trial de novo then was conducted pursuant to 42 Pa. C.S. § 932*fn16 and Pa. R. Crim. P. 67(a).*fn17 Here, a court of competent jurisdiction exercised its power to entertain prosecution under the Vehicle Code.



The Westmoreland County Common Pleas Court order No. 1270 C 1980, dated December 1, 1980, is affirmed.

Judge Palladino did not participate in the decision in this case.



Dissenting Opinion by Judge Blatt:

I must respectfully dissent.

I believe that PennDOT exceeded its statutory authority here because the effect of its regulations is to impose a fine on the appellant for an excessive weight violation when he, in actuality, committed a non-weight violation. PennDOT has been given authority to issue special permits for vehicles which exceed the maximum

[ 65 Pa. Commw. Page 440]

    size or the maximum weight specified in the statute. Section 4961(a)(2) of the Vehicle Code, 75 Pa. C.S. § 4961(a)(2). This authority is expressed in the disjunctive and I do not believe that non-weight related violations concerning the use of pilot cars and oversize load signs are sufficient to justify the inordinate fines for exceeding weight restrictions which have been imposed in this case. Here, the appellant had obtained a valid weight permit and it seems to me to be an abuse of discretion for PennDOT to invalidate that permit on factors related only to the size of the vehicle. I would therefore reverse the court below.

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