No. 925 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Washington County, Criminal Division, No. 28 of 1981.
Peter M. Suwak, Washington, for appellant.
Daniel Lucian Chunko, Assistant District Attorney, Washington, for Commonwealth, appellee.
Beck, Montemuro and Popovich, JJ.
[ 307 Pa. Super. Page 455]
Appellant was convicted of meeting or overtaking a school bus*fn1 in a summary proceeding before a district justice. He contends that the summary proceeding was improperly commenced and that consequently he is entitled to discharge. We agree.
On October 27, 1980, a citation averring a violation of Section 3345(a) of the Motor Vehicle Code was filed by Trooper James E. McFadden of the Pennsylvania State Police with District Justice Marjorie Teagarden in Washington, Pennsylvania. The violation allegedly occurred on October 24, 1980. Trooper McFadden was not present when this incident is said to have occurred and he did not make an on-scene investigation of the incident. Instead, he relied solely on the information received in a telephone call from the school bus driver who witnessed the incident. No private complaint was filed by the bus driver, although he did testify at the hearing before the district justice.
The appellant was found guilty and an appeal was taken to the Court of Common Pleas of Washington County for a hearing de novo, in which the appellant was again found guilty. Post-verdict motions were denied by the court en banc and a timely appeal was taken to this court.
[ 307 Pa. Super. Page 456]
Appellant's primary contention*fn2 is that he is entitled to discharge because the Commonwealth did not use the proper method of instituting the summary proceeding below. Specifically, he argues that the proceeding should have been commenced by the filing of a private complaint pursuant to Rule 51 A(4),*fn3 rather than by filing of a citation pursuant to Rule 51 A(1)(b), where the police officer-affiant neither witnessed the violation nor made an on-scene investigation. The Commonwealth counters with the contention that Rule 51 A(1)(b) provides for situations like the one herein and that the procedure used was proper. A close examination of Rule 51 persuades us the appellant's interpretation is correct.
Rule 51 provides three methods for the institution of summary proceedings for traffic violations according to the circumstances under which the violation is witnessed and reported. The Rule states in pertinent part:
Rule 51. Means of Instituting Proceedings in Summary Cases.
A. Criminal proceedings in summary cases shall be instituted in the ...