Opinion
March 19, 1968.
June 13, 1968.
Criminal Law — Motor vehicles — Speeding — Zone with fifty mile limit — Absence of sign indicating end of zone — Operating vehicle at rate of sixty-six miles per hour — The Vehicle Code.
1. Under § 1002(b)(8) of The Vehicle Code of April 29, 1959, P.L. 58 (which provides that the Secretary of Highways may establish any speed limit on the State highways where traffic conditions make it safe to operate motor vehicles at speeds other than as provided by this act, that any such established speed limit shall be indicated by the erection of official signs, and that at the end of the speed zone there shall be an official sign indicating the end of such speed zone), a conviction is properly sustained where the defendant operated his motor vehicle at the rate of sixty-six miles per hour in a posted fifty-mile-per-hour speed limit zone even though there was no sign showing the end of the fifty mile speed zone, and where the speed permitted in the total absence of speed zone signs would have been only fifty-five miles per hour.
Statutes — Construction — Intention of legislature — Absurd result — Statutory Construction Act.
2. In construing a statute, it is to be presumed that the legislature did not intend a result that is absurd, impossible of execution, or unreasonable; Statutory Construction Act of May 28, 1937, P.L. 1019, § 52.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeal, No. 1163, Oct. T., 1967, from order of Court of Quarter Sessions of Berks County, No. 7654 Miscellaneous Docket, 1967, in case of Commonwealth of Pennsylvania v. Richard H. Winings. Order affirmed.
Appeal by defendant from conviction before a justice of the peace on charge of speeding. Before HESS, P.J.
Order entered dismissing appeal, opinion by BERTOLET, J., concurring opinion by READINGER, J., dissenting opinion by HESS, P.J. Defendant appealed.
Bernard Mendelsohn, with him Baskin Mendelsohn, for appellant.
Arthur Ed. Saylor, First Assistant District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.
HOFFMAN, J., dissents and would adopt on the dissenting opinion of President Judge HESS in the lower court.
Argued March 19, 1968.
This is an appeal by Richard H. Winings, the appellant-defendant, from the decision of the Court of Quarter Sessions of Berks County, affirming the judgment of guilty and the imposition of a fine and costs after hearing before a Justice of the Peace.
The appellant was charged with violating § 1002(b)(8) of The Vehicle Code of 1959, P.L. 58, 75 Pa.C.S.A. § 1002 (p.p.). The specific charge was operating his motor vehicle at the rate of 66 miles per hour in a fifty-mile-per-hour speed limit zone. The testimony discloses that the vehicle was timed by radar and the appellant does not complain about the use of radar or the rate of speed determined by it. There was an official speed limit sign indicating a speed of 50 miles per hour for passenger cars and 40 miles per hour for trucks. The Commonwealth stipulated that there was no sign showing the end of the fifty mile speed zone.
"(8) The Secretary of Highways may, after due investigation, establish any speed limit on State highways where traffic conditions or other conditions of the highway make it safe to operate motor vehicles at the speeds other than as provided by this act.
"Any such established speed limit shall be indicated by the erection of official signs, spaced not less than one-eighth (1/8) of a mile apart, on the right-hand side of the highway facing the traffic to be controlled, and at the end of the speed zone there shall be an official sign indicating the end of such speed zone, except that on limited access highways the signs shall be placed at the beginning and end of said limited access highways and at reasonable intervals in the discretion of the Secretary of Highways. As amended 1961, Aug. 23, P.L. 1118, § 2."
The case was heard de novo and was referred to the court en banc by Judge WARREN K. HESS on the sole question of whether or not the appeal should be sustained because of the stipulation that there was no sign showing the end of the fifty mile speed zone. The court affirmed the judgment of the Justice of the Peace two to one. Judge BERTOLET speaking for the majority said: "The purpose of the sign at the end of the zone was for advising motorists when the specified limitation on their speed had come to an end. At the time of the violation for which he was arrested the defendant was in no way prejudiced by the missing sign or the information it would have given him when he went sixty-six miles per hour. This speed, it may be noted, was more than would have been permitted in the total absence of the speed zone signs, viz., fifty-five miles per hour. The provision of the law with which we are concerned contains no prohibition of conviction if the `end of speed zone' sign is not posted."
The Commonwealth argues that this case is controlled by Com. v. Holte, 209 Pa. Super. 498, 229 A.2d 16 (1967). We agree. In that case the defendant was charged with violating § 1002(b)(9) of the Code, for operating his automobile at the rate of 96 miles per hour. Subsection (9) of the Code permits the Secretary to establish rates of speed beyond the statutory limit and states that where such zones are established signs shall be erected. The language as regards signs is the same as that contained in subsection (8). In the Holte case, supra, it was argued, as here, that the existence of the signs was not proven and so the conviction could not stand. This Court decided that the posting of the signs was directory and not mandatory.
The defendant contends that the case is controlled by Com. v. Anspach, 134 Pa. Super. 369, 4 A.2d 203 (1939). In the Holte case, supra, Judge MONTGOMERY speaking for this Court, distinguished Anspach from Holte as follows, at page 500: "In Commonwealth v. Anspach, 134 Pa. Super. 369, 4 A.2d 203 (1939), we held that proof of the existence of signs required by subsection (4) of said § 1002 was fatal to the case of the Commonwealth and discharged the defendant. Section (4), although fixing a maximum of 40 miles per hour in business, residential and park areas, permits local authorities to exercise discretion in deciding whether such limit should be reduced to 25 or 35 miles per hour, providing proper notice is given to the motorists of the limit adopted. The reason for such notice is obvious. If no signs were erected the motorist would be justified in presuming that 40 miles per hour was the limit as provided by statute, and should not be convicted of violating a lesser limit of which he did not have notice. However, we find nothing in that decision which would exonerate him if he were exceeding the 40 mile limit set up by the statute. In that case the motorist was traveling 40 miles per hour."
In the instant case the appellant clearly violated the speed fixed by the 50 mile zone and for that matter the 55 mile legal limit which required no signs. What was said in the Holte case, supra, at page 501, is equally applicable here, i.e.: "The law does not intend a result that is absurd, impossible of execution or unreasonable. Statutory Construction Act of May 28, 1937, P.L. 1019, Art. IV, § 52, 46 P. S. § 552. Were we to hold that a motorist may be convicted of violating the 55 miles per hour limit without the presence of signs and not be convicted of exceeding 60 miles per hour because no signs were erected would give an absurd and unreasonable construction to the provision we are considering."
Decision affirmed.
HOFFMAN, J., dissents and would adopt on the dissenting opinion of President Judge HESS in the lower court.