Commonwealth v. Clyde

HESTER, Judge:

Appellee William W. Clyde was charged with the summary offense of operating an overweight vehicle in violation of the Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, as amended, 75 Pa.C.S.A. Section 4941, 4942. On October 16, 1979, appellee was found guilty by a District Magistrate and fined $1,890.00, pursuant to 75 Pa.C.S.A. Section 4945.

Appellee appealed to the Court of Common Pleas of Clearfield County. Following a de novo hearing before the Honorable John K. Reilly, Jr., on August 20, 1980, Judge Reilly entered an Order on September 23, 1980 sustaining the appeal and dismissing the charges. The district attorney of Clearfield County has filed this appeal. The Commonwealth of Pennsylvania, Department of Transportation, has also filed an amicus brief in support of appellant’s position.

The underlying facts are not in dispute. Appellee readily acknowledges that his vehicle was in excess of the weight limitations specified by the Vehicle Code. Appellee, as an employee of Sandy Township, was transporting limestone to a highway construction site within Sandy Township at the time. Although appellee was operating the vehicle approximately 7 to 8 miles from the construction site, he never traveled outside of the Township and was retrieving necessary road building materials from their nearest possible site.

The lower court dismissed the charges on the basis of 75 Pa.C.S.A. Section 4963, which states:

“Exemptions for Vehicles Used in State Highway Construction

No special permit shall be required for movement across, upon or along State or State-aid highways for oversized or overweight vehicles of a contractor used for the construction or improvement of such highways.” We affirm.

Chapter 49 of the Vehicle Code regulates the size, weight, and road restrictions concerning vehicles operating on highways within the Commonwealth. Subchapter C of Chapter 49, 75 Pa.C.S.A. Section 4941 et seq., specifies the applicable weight restrictions. Subchapter D, 75 Pa.C.S.A. Section 4961 et seq., allows special permits for excessive size and weight.

Neither the Department of Transportation nor appellant, question whether appellee is “a contractor” within the meaning of 75 Pa.C.S.A. Section 4963. Nor do they contest the fact that appellee was moving upon a state highway for the purpose of the construction or improvement of such highway. Appellant and the Department of Transportation contend that 75 Pa.C.S.A. Section 4963 must be read in connection with 75 Pa.C.S.A. Section 4961, which authorizes the issuance of special permits to overweight vehicles only in four circumstances, including “a combination carrying a nondivisible load ...” 75 Pa.C.S.A. Section 4961(a)(2). Appellant contends, that since appellee’s load was divisible, he would not have been entitled to a special permit. Therefore, the exemption from the special-permit requirement, specified by 75 Pa.C.S.A. Section 4963 does not apply. We conclude that this reasoning strains the clear intent of the General Assembly. See 1 Pa.C.S.A. Section 1921.

We have previously stated that the intent of the General Assembly in enacting Chapter 49 of the Vehicle Code was “. . . to preserve the safety of the traveling public and to maintain the roads of the Commonwealth in a suitable condition.” Commonwealth v. Mercer, 294 Pa.Super. 544, 440 A.2d 599, 601 (1982). Although the movement of an overweight vehicle upon a state highway for the construetion or improvement of such highway may not be consistent with the protection and safety of the traveling public, it appears that the General Assembly has found it necessary to totally exempt such a vehicle from the size and weight restriction. Otherwise, the General Assembly would have specified particular situations in which a road construction vehicle is exempt. The General Assembly has also authorized other special permits for construction equipment. See the Act of October 10, 1980, P.L. 791, No. 147, Section 7, 75 Pa.C.S.A. Section 4970(b), which generally authorizes the issuance of an annual permit for an overweight construction truck.

Therefore, under the circumstances of this case, where appellee was operating his vehicle within Sandy Township and within relatively close proximity to the construction site, appellee’s vehicle was exempt from the weight restrictions specified by the Vehicle Code.¹

Order Affirmed.

MONTGOMERY, J., files a concurring opinion. POPOVICH, J., files a dissenting opinion.

1 . We are cognizant of the threshold issue involved in this matter, whether the Commonwealth has a right to appeal. The lower court’s order sustained the appeal from the District Magistrate and dismissed the charges. As stated in Commonwealth v. Arnold, 215 Pa.Super. 444, 258 A.2d 885, 886 (1969):

If the order of the lower court be considered an acquittal, then the Commonwealth has no right to appeal, Commonwealth v. Hollinger, 170 Pa.Super. 180, 84 A.2d 794 (1951); Commonwealth v. Lodge No. 148, L.O.O.M., 188 Pa.Super. 531, 149 A.2d 565 (1959). Where, however, the question involved is purely one of law the Commonwealth may appeal from an adverse ruling in a criminal case. Gaskins Case, 430 Pa. 298, 305, 244 A.2d 662, 666 (1968). For example, the Commonwealth may appeal where an indictment has been quashed, or judgment arrested after verdict of guilty, or from an order quashing the information, [footnotes omitted].

Since the facts in the instant appeal were not in dispute, we consider the question to be purely one of law, decided solely on the basis of our interpretation of 75 Pa.C.S.A. § 4963. Therefore, the Commonwealth’s appeal was proper.