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COMMONWEALTH PENNSYLVANIA v. JOSEPH A. NUGENT (06/10/83)

filed: June 10, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH A. NUGENT, APPELLANT



No. 565 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence of February 23, 1982, in the Court of Common Pleas, Criminal Division, of Delaware County, No. S.A. 113 of 1979.

COUNSEL

David Weinstein, Philadelphia, for appellant.

August T. Groover, Assistant District Attorney, Media, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ. Popovich, J., files a concurring and dissenting opinion.

Author: Hester

[ 315 Pa. Super. Page 496]

On April 4, 1979, appellant, Joseph A. Nugent, was operating a six-axle crane in Darby Borough, Delaware County, Pennsylvania. Officers Mower, Terra and Blythe, of the Borough of Darby Police Department, observed the crane moving along Shelbourne Road, Wycombe Avenue and, finally, MacDade Boulevard, where they stopped it for apparent size and weight violations. When appellant presented an expired permit authorizing the operation of the oversized and overweight vehicle, the officers ordered him to drive one mile farther to a Pantry Pride parking lot for the purpose of weighing the crane with portable scales.

Each of the six axles was weighed individually by a portable scale placed under each tire. The combined weight of the six axles reflected a gross vehicle weight of 175,160 pounds; therefore, the vehicle was 101,880 pounds in excess of the legal maximum weight of 73,280 pounds for vehicles operating upon Pennsylvania highways.*fn1

Appellant was thereafter taken to District Justice Thomas J. Lacey's office and required to post $29,400.00 as bond before the crane could be released. A summary offense hearing was subsequently conducted by District Justice Lacey; appellant was adjudged guilty of violating the maximum gross weight provision of the Vehicle Code and ordered to pay $29,400.00 as a fine. A trial de novo before the Court of Common Pleas of Delaware County resulted in the same verdict and identical fine. This appeal was promptly taken from the judgment of sentence.

[ 315 Pa. Super. Page 497]

Appellant argues first that the entire weighing procedure was improperly conducted because neither Officer Mower nor Officer Terra was qualified to weigh the crane, and the multiple draft weighing process was not authorized by statute. Section 4981(a) of the Vehicle Code provides that ". . . . measurement and weighing shall be conducted by qualified personnel who have been trained in the use of weighing and measuring equipment in a training program approved by the Department of Agriculture." 75 Pa.C.S.A. § 4981(a). According to appellant, Officer Terra was not certified at the time of the accident; Officer Mower admitted unfamiliarity with the Public Weighmaster's Act;*fn2 and, complete testimony indicated Terra alone was in charge.

Appellant's recollection of testimony is erroneous. At the time of arrest, Officer Mower was a sergeant for the Borough of Darby Police Department. He received instruction for law enforcement purposes from both the Pennsylvania State Police and the Pennsylvania Department of Agriculture in the particular multiple draft weighing employed in this case. N.T., August 13, 1972, p. 13. It is not material that Mower, or the two attending officers, were unfamiliar with the Public Weighmaster's Act. Section 4981 makes no specific reference to the Act; it simply requires training and certification following participation in a program conducted by the Department of Agriculture. Officer Mower testified to his certification and presented to the Court his certification card, later admitted as evidence. N.T. pp. 6 and 7.

We agree with appellant that Officer Terra was not qualified to properly administer the multiple draft weighing process; however, this deficiency was not fatal to the validity of the weighing procedure so employed. Officer Terra was not in charge of the weighing procedure; he was in charge of the three-man team that surveyed the crane's movement, detained appellant and transported appellant to the magistrate's office. The actual weighing was simply a

[ 315 Pa. Super. Page 498]

    segment of the team's activities and the evidence demonstrated that Officer Terra yielded to the expertise of both Mower and Blythe when the multiple draft weighing began. Officer Terra did nothing more than record numbers as Officers Mower and Blythe read them aloud from the scales. N.T., p. 31. We are aware of no statutory or judicial authority which requires that more than one certified officer administer the weighing process or which would prohibit the guided assistance of non-certified officers. See Commonwealth v. Michael, 301 Pa. Super. 92, 446 A.2d 1350 (1982).

With respect to the alleged improper weighing procedure employed here, appellant maintains that multiple draft weighing is not authorized by statute. As statutory support for his position, appellant cites the Public Weighmaster's Act.

A licensed public weighmaster shall not use any scale to weigh a load which exceeds the normal or rated capacity of the scale.

73 P.S. § 1783.

According to appellant, this section clearly, albeit impliedly, authorizes only the weighing of a single object on one scale. Appellant recognizes the propriety of multiple draft weighing for severable tractor-trailer units; however, he argues that such weighing receives no legislative or judicial sanction for single unit vehicles such as cranes.

We disagree. We interpret § 1783 of the Public Weighmaster's Act as prohibiting the use of any scale or scales, the total weight capacity of which cannot tolerate the vehicle's gross weight; hence, the total weight capacity can be reached by either a single unit scale or the combined readings from multiple, portable scales.

Admittedly, this interpretation does not promote a finding of compliance with § 1783 of the Public Weighmaster's Act, were it applied. The Darby Borough officers engaged six portable scales to record that portion of the crane's weight distributed over each of the 12 wheels. The scales had an

[ 315 Pa. Super. Page 499]

    individual capacity of 20,000 pounds and five of the twelve wheels registered a weight of 20,000 pounds. Officer Mower acknowledged that those particular portions of the axles exceeded 20,000 pounds; the scales had reached capacity and could not register the true weight. We do not consider § 1783 of the Public Weighmaster's Act, however. Officer Mower was not a licensed public weighmaster; he was simply certified by the Bureau of Public Weights and Measures to weigh vehicles for law enforcement purposes. As such, he was not subject to the provisions of the Public Weighmaster's Act.

Portable scales for multiple draft weighing are employed with statutory authority. 75 Pa.C.S.A. § 4981(a); 75 Pa.C.S.A. § 4981(c); Commonwealth v. Pierce, 88 Montg. 368 (1967). In recognition of a possible variance between platform and multiple weighing devices, a one percent tolerance is considered when computing the total gross weight. 75 Pa.C.S.A. § 4981(c). Consequently, the differential does not forbid, as appellant asserts, the use of multiple draft weighing. Moreover, we are not impressed with appellant's courtroom experiment with a postal scale and model crane to demonstrate the inaccuracy of multiple draft weighing. There was no certification presented by appellant of the postal scale's accuracy; the portion of the model crane resting on the scale was raised to a far greater proportionate height than the actual crane held in violation here.*fn3 We must defer to the judgment of the legislature in authorizing multiple draft weighing. Appellant simply does not demonstrate, with complete and convincing scientific evidence, that the legislature erred in accepting the accuracy of multiple draft weighing.

Next, appellant avers that Sergeant Donald Franklin, of the Chester Police Department, was not qualified to testify as the prosecution's expert witness. Sergeant Franklin was certified by both the Department of Agriculture

[ 315 Pa. Super. Page 500]

    and the Pennsylvania State Police in the weighing and measuring of motor vehicles; he served two to three years as an instructor of weighing and measuring with the Pennsylvania State Police; and, he had testified as an expert in approximately 3,000 truck weighing cases in the Court of Common Pleas of Delaware County. N.T. pp. 49-50. Appellant chose not to cross-examine Sergeant Franklin on his qualifications; instead, he attempted to demonstrate the Sergeant's ignorance of weighing principles of alleged common knowledge. For instance, appellant derided Franklin for opining that postal scales could only weigh letters accurately, not model trucks; for admitting that he was neither a weighmaster nor experienced in weighing cranes; and, for opining that the principles of weighing real trucks and toy trucks were different. Appellant distorts the issue with sophistry. Sergeant Franklin received extensive instruction, was an instructor and was obviously familiar with the litigated issues arising from weighing of motor vehicles. This much was clear and unchallenged. It was also sufficient in itself to qualify him as an expert. We attribute no significance to his ignorance of postal scales and toy trucks. Further, we are not impressed with his lack of experience in weighing cranes. The Vehicle Code addresses itself to the weighing devices for all motor vehicles, whether they be automobiles, pick-up trucks, tractor-trailer units or cranes. The weighing principles and processes remain identical; experience with weighing one carries over to weighing of another. Finally, a police officer can be certified to weigh vehicles without knowledge of the law of physics. A certified operator of weighing devices need understand the importance of accurate scales, the correct weighing methodology to employ and the precise reading of the registered scales. Sergeant Franklin was equipped with this knowledge. The Department of Transportation, in conjunction with the Department of Agriculture, certifies law enforcers, not physicists.

Further, we do not believe appellant was prejudiced when the Court made the following comment on appellant's

[ 315 Pa. Super. Page 501]

    attack of Sergeant Franklin's qualifications: "Mr. Weinstein doesn't know Sergeant Franklin as we do." N.T. p. 49. We note first that there was no jury present which could have placed undue emphasis upon the court's apparent belief. We must recognize the trial judge's complete training and experience in non-jury trials, and allow him broader objectivity even where he expresses premature beliefs. See Commonwealth v. Neal, 258 Pa. Super. 375, 392 A.2d 841 (1978), later proceeding 493 Pa. 335, 426 A.2d 576 (1981); Commonwealth v. Conti, 236 Pa. Super. 488, 345 A.2d 238 (1975). Secondly, and most importantly, additional qualifications were elicited which established Sergeant Franklin's expert status.

Appellant also contends that he was confronted with an emergency while moving the crane; therefore, he was excused from possessing a written permit on April 4, 1979. Section 4964 of the Motor Vehicle Code*fn4 allows the suspension of written authorization and the use of oral authorization for the movement of an overweight vehicle, providing an emergency affecting the public safety exists, and providing a written permit is applied for within 72 hours of movement. Appellant maintains that his employer, Markim Incorporated, was the only supplier of cranes for the movement of containment vessels storing contaminated water from the Three Mile Island facility. Furthermore, appellant maintains that his employer was given oral permission by the Department of Transportation to operate and move all its cranes in order to contribute to the clean-up of Three Mile Island. Finally, he alleges that a written permit was applied for within 72 hours of movement of the crane.

Officer Terra testified that, at the time he stopped the crane, appellant informed him that he was driving to Sun Oil in Marcus Hook, Pennsylvania; Three Mile Island was never mentioned. N.T. p. 33. Verbal permission to move the crane was not given until six hours following the detention and weighing. William A. ...


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