No. 1109 PITTSBURGH, 1980, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Clearfield County, No. 79-639-CRA.
F. Cortez Bell, Assistant District Attorney, Clearfield, for Commonwealth, appellant.
Richard Milgrub, Clearfield, for appellee.
Hester, Popovich and Montgomery, JJ. Montgomery, J., files a concurring opinion. Popovich, J., files a dissenting opinion.
[ 302 Pa. Super. Page 384]
Appellee William W. Clyde was charged with the summary offense of operating an overweight vehicle in violation of the Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, as amended, 75 Pa.C.S.A. Section 4941, 4942. On October 16, 1979, appellee was found guilty by a District Magistrate and fined $1,890.00, pursuant to 75 Pa.C.S.A. Section 4945.
Appellee appealed to the Court of Common Pleas of Clearfield County. Following a de novo hearing before the Honorable John K. Reilly, Jr., on August 20, 1980, Judge Reilly entered an Order on September 23, 1980 sustaining the appeal and dismissing the charges. The district attorney of Clearfield County has filed this appeal. The Commonwealth of Pennsylvania, Department of Transportation, has also filed an amicus brief in support of appellant's position.
The underlying facts are not in dispute. Appellee readily acknowledges that his vehicle was in excess of the weight limitations specified by the Vehicle Code. Appellee, as an employee of Sandy Township, was transporting limestone to a highway construction site within Sandy Township at the time. Although appellee was operating the vehicle approximately 7 to 8 miles from the construction site, he never traveled outside of the Township and was retrieving necessary road building materials from their nearest possible site.
The lower court dismissed the charges on the basis of 75 Pa.C.S.A. Section 4963, which states:
[ 302 Pa. Super. Page 385]
or improvement of such highway may not be consistent with the protection and safety of the traveling public, it appears that the General Assembly has found it necessary to totally exempt such a vehicle from the size and weight restriction. Otherwise, the General Assembly would have specified particular situations in which a road construction vehicle is exempt. The General Assembly has also authorized other special permits for construction equipment. See the Act of October 10, 1980, P.L. 791, No. 147, Section 7, 75 Pa.C.S.A. Section 4970(b), which generally authorizes the issuance of an annual permit for an overweight construction truck.
Therefore, under the circumstances of this case, where appellee was operating his vehicle within Sandy Township and within relatively close proximity to the construction site, appellee's vehicle was exempt from the ...