DocketNumber: No. 1517 C.D. 1990
Citation Numbers: 142 Pa. Commw. 393, 597 A.2d 291
Judges: Barbieri, Byer, Colins
Filed Date: 9/12/1991
Status: Precedential
Modified Date: 6/24/2022
Stephen L. Seeherman (Seeherman) appeals from an order of the Court of Common Pleais of Luzerne County (trial court) which found him guilty of three parking violations following a trial de novo. We .affirm.
On September 24, 1988 at 10:44 a.m., Officer Edward Soltis of the Wilkes-Barre Police Department observed a silver Audi, registration number 418, parked in a meter Zone C-25 on South Main Street. As there was no time registered on the meter, Officer Soltis issued a parking ticket and placed it on the car. Subsequently, Seeherman failed to pay the ticket. On October 3, 1988, a computer check through the Department of Transportation (DOT) identified Seeherman as the owner. On November 1, 1988, Citation No. C8440 was filed with District Justice Michael Colins, charging Seeherman with a parking meter violation under Section 29, Subsection 121 of the Wilkes-Barre City Ordinance (ordinance). On March 2, 1989, the District Justice found Seeherman guilty and ordered him to pay a $10.00 fine and $22.50 in costs. Seeherman’s timely appeal to the trial court became Criminal Information No. 624 of 1989.
On October 22, 1988 at approximately 2:04 p.m., Officer Soltis observed a brown Mazda, registration number 438453 parked on South Franklin Street in meter Zone K-35.
On December 2, 1988 at 9:25 a.m., Officer Arthur Kemmerer of the Wilkes-Barre Police Department observed a Chevrolet, registration number 438453, parked in meter zone C-29 on South Main Street. Noting that the meter did not have any time registered on it, the officer issued a parking ticket, which the owner later failed to pay. On January 10, 1989, DOT identified Seeherman as the owner. On January 31, 1989, a citation was filed against Seeherman, charging him with a meter violation under Section 29, Subsection 121 of the ordinance. On March 27, 1989, Seeherman was found guilty by District Justice Michael Colins and ordered to pay a $10.00 fine and $22.50 in costs. Seeherman’s timely appeal to the trial court became Criminal Information No. 870 of 1989.
On March 7, 1990, a hearing de novo on the consolidated cases was held before the Honorable Donald O’Malley. Seeherman was found guilty in all three cases and was ordered to pay a $10.00 fine and $22.50 in costs for each case. We affirm.
Seeherman raises a host of issues to justify why he should not pay the $77.50 in parking tickets. We shall briefly discuss each of them.
Seeherman’s second contention is that the citations were not timely filed. Again, we disagree. Pa.R.Crim.P. 95, governs the procedures for parking violations.
The record reveals that Officer Soltis issued the first ticket in question on September 24, 1988. Seeherman failed to pay the ticket or otherwise respond as required on the ticket. On October 3, 1988, Seeherman was identified as the owner of the vehicle in violation through a DOT computer check. Citation No. C8440 was filed on November 1, 1988, 28 days after Seeherman’s identity was ascertained. Officer Soltis wrote the second ticket on October 22, 1988. The ticket was not paid; neither did Seeherman respond. Seeherman was identified as the owner of the vehicle through DOT on December 2, 1988. Citation No. D2023 was filed with the District Justice on December 30, 1988, 28 days later. The third ticket was written by Officer Kemmerer on December 2, 1988. Again, Seeherman did not pay the ticket. Seeherman was identified as the owner on January 10, 1989, through DOT. The citation was filed against Seeherman on January 31, 1989, 21 days later.
The tickets themselves are not citations, and they do not serve to institute summary proceedings. According to Pa. R.Crim.P. 95, law enforcement officers are required to take action only when the owner of the vehicle fails to respond. At that time, they are required to obtain from DOT the name of the owner of the vehicle.
Seeherman next contends that there was no local ordinance in effect governing the placement of parking meters. He bases this contention on the fact that Section 2, Article X of the ordinance, which required that parking
Lastly, Seeherman alleges that the parking meters themselves were antiquated and not in good working order. The issue of determining whose burden it is to determine the functioning of a parking meter is one of first impression for this Court. We hold that the allegation of a non-functioning meter is an affirmative defense, and that the burden of proving the malfunction rests on the person making the defense. In the instant case, the record reflects that Seeherman’s witness, Mr. Sam Macekura, a parking meter repairman, testified that the parking meters in question were checked once a year for accuracy with a state inspected, calibrated time clock. Testimony also revealed that when parking violators alleged that meters were broken, police sent repair crews to investigate and make necessary repairs. There is no evidence to indicate specific problems with meters K-35, C-25, or C-29, the meters at which Seeherman was parked when his tickets were issued. Seeherman has failed to prove with specific evidence that the meters in question were antiquated or that they were malfunctioning.
ORDER
AND NOW, this 12th day of September, 1991, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is affirmed.
. Seeherman correctly states that Citation 8840 does not list a date of issue. Pursuant to Pa.R.Crim.P. 90:
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant ... unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.
In Commonwealth v. McGinley, 386 Pa.Superior Ct. 547, 563 A.2d 518 (1989), the Superior Court has interpreted Rule 90 to require manifest and palpable harm. Seeherman has failed to show that any such harm existed here.
. Proceeding in Summary Cases Charging Parking Violations.
(a) Political subdivisions may use parking tickets to inform defendants of parking violations and to offer defendants an opportunity to avoid criminal proceedings by paying an amount specified on the ticket within the time specified on the ticket. When a political subdivision does use parking tickets and a ticket has been handed to a defendant or placed on a vehicle windshield, a criminal proceeding shall be instituted only if the defendant fails to respond as requested on the ticket. In that event, the criminal proceeding shall be instituted by a law enforcement officer filing a citation with the proper issuing authority. Upon the filing of the citation the case*398 shall proceed in the same manner as other summary cases instituted by filing a citation, in accordance with Rules 61-64.
. See Comment to Pa.R.Crim.P. 95.
. Ordinance 2-75, Art. XVI, Sec. 1.
. This Court notes that there has been no request for counsel fees and costs pursuant to Pa.R.A.P. 2744. Therefore, the Court, at this time, cannot consider awarding the same for a frivolous appeal.