Appeal from the Order of the Court of Common Pleas of Lawrence County, entered July 19, 1985, at No. 1002 of 1984, Criminal Division.
William M. Panella, Dist. Atty., Anthony J. Kosciuszko, Asst. Dist. Atty., New Castle, for appellant.
David Earl Henderson, New Castle, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
Appellee, Wayne E. Church, pleaded guilty before a District Justice to a charge of violating Section 4902(a) of the Motor Vehicle Code,*fn1 which permits both the Commonwealth
and local authorities to post weight restrictions on certain highways and bridges. Section 4902(g)(1) of the Motor Vehicle Code,*fn2 imposes a rising scale of penalties for violating weight restrictions imposed or posted under Section 4902(a). In pertinent part, Section 4902(g)(1) reads, ". . . any person convicted of operating a vehicle with a gross weight in excess of a posted weight shall, upon conviction, be sentenced to pay a fine of $150 plus $150 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum allowable weight." (Emphasis added.) Under strict application of this formula to the facts of this case, Appellee's fine should have been $13,517.50, and this, indeed, was the fine imposed by the district justice. The matter was appealed de novo to the Court of Common Pleas of Lawrence County (Caiazza, J.), where Mr. Church again pleaded guilty. In spite of the mandatory nature of the sentencing statute, however, he was sentenced to pay a fine of only $3,000.00.
In ruling on this case, Judge Caiazza took into consideration Appellee's inability to pay the full fine required by the statutory formula, and reduced the fine accordingly. Authority for reducing overweight fines because of inability to pay was based on Commonwealth v. Bundrant, 29 D & C.3d 393 (Lawrence County), 1983.
In Bundrant, in an opinion also written by Judge Caiazza, it was determined that the mandatory fine provisions of the sentencing statute for overweight vehicles contained in
the Motor Vehicle Code,*fn3 were inconsistent with portions of the Sentencing Code. One section of the Motor Vehicle Code, viz., 75 P.C.S. § 6504(a)*fn4 which permits fines to be paid on the installment basis where a defendant is unable to pay all at once, contains a cross-reference to the Sentencing Code, specifically 42 P.C.S. § 9758.*fn5 This latter section also permits a fine to be paid in installments in appropriate circumstances. Judge Caiazza reasoned in Bundrant that since the Motor Vehicle Code makes this cross-reference to the Sentencing Code, other provisions of the Sentencing Code must also be taken into consideration.
The provision of the Sentencing Code that appeared most relevant and critical was 42 P.C.S. § 9726, which expressly permits a court to take into account a defendant's financial ability to pay in determining the amount of the fine to be imposed.*fn6 This provision was correctly found to be applicable
to offenses under the "Criminal Code" and to some violations of the Motor Vehicle Code, but not to the type of overweight violations of which the defendant in Bundrant had been convicted. Judge Caiazza concluded that some fines could be reduced because of inability to pay, and these would usually be fines imposed for serious offenses; but that other fines ...