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COMMONWEALTH PENNSYLVANIA v. GORDON LAVERN KAUTZ (04/04/85)

filed: April 4, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
GORDON LAVERN KAUTZ, APPELLANT



NO. 3244 Philadelphia 1983, Appeal from the Judgment of Sentence November 15, 1983, in the Court of Common Pleas of Lancaster County, Criminal No. 2019 of 1982.

COUNSEL

J. Richard Gray, Lancaster, for appellant.

Charles A. Achey, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Spaeth, President Judge, and Olszewski and Cercone, JJ. Spaeth, President Judge, files a concurring opinion.

Author: Olszewski

[ 341 Pa. Super. Page 376]

Appellant challenges the constitutionality of Section 3525(a) of the Vehicle Code*fn1 (hereinafter referred to as the "helmet law"). The statute, in pertinent part, provides: "No person shall operate or ride upon a motorcycle or a motor-driven cycle (other than a motorized pedalcycle) unless he is wearing protective headgear which complies with standards established by the department." Appellant, in his challenge, renews the arguments rejected by this Court in Commonwealth v. Arnold, 215 Pa. Super. 444, 258 A.2d 885 (1969).*fn2 We affirm on the basis of Arnold, but question the continuing vitality of that case.

The thrust of appellant's arguments goes to the question of how far the state may extend its police power to save a citizen from himself. It is axiomatic that the power can be rightfully exercised over a member of a civilized community, against that person's will, only to prevent harm to other members of the community.

The only part of the conduct of any one, for which he is amendable to society, is that which concerns others. In the part which merely concerns himself, his independence

[ 341 Pa. Super. Page 377]

    is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

(T)he principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they think our conduct foolish, perverse or wrong.

John Stuart Mill, On Liberty (1859), cited with approval in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980).

Adherence to this principle has proven difficult for a court faced with challenges to the helmet laws. In Arnold, this Court followed the lead of other jurisdictions finding, ...


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