No. 65 M.D. Appeal Docket 1984 Appeal from the Judgment of Sentence, dated August 24, 1982, by the Honorable Harold E. Sheely, Judge, Ninth Judicial District of Pennsylvania docketed to 310 Criminal 1981, affirmed by the Superior Court of Pennsylvania, April 19, 1984, docketed at No. 2576 Philadelphia 1982, Pa. Super. ,
Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., filed a concurring opinion. Nix, C.j., filed a dissenting opinion joined by McDermott, J. Flaherty, J., did not participate in the consideration or decision of this case.
In this case we are asked to define the limits of a municipality's power to detect and cite drivers who violate posted speed limits. While we recognize the public safety considerations which render speed detection an important part of a police department's duties, we are also mindful of the potential for abuse to the drivers of this Commonwealth which can arise from overly zealous enforcement of the speed limit laws, made evermore simple through the use of modern speed timing devices.
On November 17, 1981, appellant Guy J. DePasquale was convicted by a judge of driving in excess of a maximum posted speed limit, and was sentenced to pay a fine of $47.00. On appeal, the Superior Court affirmed, 327 Pa. Super. 579, 476 A.2d 419. We granted appellant's petition for allowance of appeal and we now reverse.
Appellant was convicted of driving 36 mph in a 25 mph zone. His speed was detected by the East Pennsboro Township Police using a Model TK100 Excessive Speed Preventer (ESP). The ESP machine consists of two sensors, each approximately ten feet long, which are taped across the width of a roadway six feet apart from each other. The sensors are connected to a unit which is located inside a police car and which measures the time it takes a vehicle to drive from the first sensor to the second, translates the time measurement into miles per hour, and then displays the speed of the vehicle. When a vehicle travels over the sensors above a preselected speed, an alarm in the unit sounds and the speed of that vehicle can be locked into the readout.
In this appeal, appellant contends that it was unlawful for the East Pennsboro Township Police to use the ESP machine.
The Motor Vehicle Code differentiates between mechanical or electrical, and electronic, speed timing devices. The Code provides that
(1) The rate of speed of any vehicle may be timed on any highway by a police officer using a mechanical or electrical speed timing device.
(2) Electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.
Appellant argues that the ESP is an electronic, rather than a mechanical or electrical, device and that it may, therefore, only be used by the State Police. We agree.
According to the plain language of the Motor Vehicle Code, the category of electronic speed timing devices includes, but is not limited to, radio-microwave devices.*fn1 The language of this section leaves open the question whether the ESP machine is, in fact, an electronic device.
At trial, the Commonwealth did not present expert testimony on this issue, but relied instead upon a regulation of the Department of Transportation (PennDOT) which, at the time this case arose, classified the ESP machine as an electrical device. 67 Pa.Code § 337.25.*fn2 We are not persuaded, however, that this regulation is dispositive of this case.
This Court has distinguished "between two general types of rulemaking, one or the other of which a legislature customarily authorizes administrative agencies which the legislature has created to employ in the discharge of agency responsibilities." Girard School District v. Pittenger, 481 Pa. 91, 94, 392 A.2d 261, 262 (1978). See also Pennsylvania Human ...