Commonwealth, Department of Transportation v. Wasko

704 A.2d 1104, 1998 Pa. Super. LEXIS 4
CourtSuperior Court of Pennsylvania
DecidedJanuary 7, 1998
DocketNo. 926
StatusPublished
Cited by1 cases

This text of 704 A.2d 1104 (Commonwealth, Department of Transportation v. Wasko) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth, Department of Transportation v. Wasko, 704 A.2d 1104, 1998 Pa. Super. LEXIS 4 (Pa. Ct. App. 1998).

Opinion

BECK, Judge.

In this appeal we decide, inter alia, whether the Commonwealth may consider a special hauling permit issued under the Motor Vehicle Code void ab initio where a driver violates one of several conditions of the permit. We conclude that the Commonwealth may consider the special hauling permit void ab initio. We affirm the trial court.

On March 27, 1996, the Pennsylvania Department of Transportation (“PennDOT”) issued a special hauling permit to Road Machinery Inc., which allowed a tractor trailer to haul an oversize load to the Pennsylvania-New Jersey state line at Interstate Route 80 via Route 33 in Northampton County, Pennsylvania. Because of road construction on a portion Route 33, the permit directed that a detour be taken, whereby the driver would exit Route 33 at State Road 1008, proceed along several other designated roads, and reenter Route 33 beyond the construction.

On March 28, 1996, appellant, who was employed by Road Machinery Inc., was driving a tractor trader on Route 33, pursuant to the permit issued by PennDOT the previous day. While on Route 33, however, appellant drove past the exit which provided access to State Road 1008, because no sign at the exit, itself, indicated access to the road. As appellant approached the construction area on Route 33, he realized that he had missed the exit. Appellant then radioed ahead to the construction workers who told him that his load would be able to travel through the construction zone.

As appellant proceeded to enter the construction zone, he was stopped by Pennsylvania State Police Trooper Brian Fleming. Upon examining appellant’s special hauling permit, Trooper Fleming noted that appellant was off the route approved by his permit since he was approximately four miles beyond the exit on Route 33 that the permit directed him to use to avoid the construction area. Trooper Fleming then called for the assistance of a PennDOT weigh detail team. Officer Arnold Mack responded to Trooper Fleming’s call and arrived on the scene. Trooper Fleming determined that absent the special hauling permit appellant’s load was about 31,000 pounds overweight. Although the weight was proper under the special hauling permit, if the permit was considered void, the load was overweight.

Appellant was then issued citations for violating 75 Pa.C.S. § 4907(b)1, relating to general non-compliance with the conditions of the permit, and 75 Pa.C.S. § 4941(a)2, relating to operating an overweight vehicle.

A summary trial was then held before a district justice in Northampton County where appellant was found guilty of both summary offenses. Appellant appealed that conviction to the Court of Common Pleas of Northampton County for a de novo trial. At the conclusion of the de novo bench trial, appellant was again found guilty of both summary offenses and sentenced to a fine of $566.00 for violating § 4907(b) and $8,861.51 for violating § 4941(a).

On appeal, appellant first argues that his conviction for hauling an overweight load under § 4941(a) was unlawful. He contends that although he violated a condition of his special hauling permit by deviating from the permit’s prescribed route, § 4907(b) is the sole and exclusive sanction for violating a [1106]*1106condition of a special hauling permit. Appellant argues that he did not violate the weight restriction in the permit because his load was within the weight limitation prescribed in the special hauling permit. He asserts that the effect of the court’s order is to invalidate the permit altogether. We find appellant’s argument to be supported by neither law nor logic.

We addressed the same issue posed in this case in Commonwealth v. Liver, 360 Pa.Super. 205, 520 A.2d 56 (1987). In that case, the appellant had been issued an overweight permit which prescribed the routes over which he could haul the overweight load. When the state police trooper stopped the appellant, he was not on a highway authorized by the permit. The appellant was then charged with carrying an overweight load in violation of § 4941(a), as if he had had no permit at all.

In affirming the appellant’s conviction in Liver, we concluded that while on an unauthorized highway, a driver has no greater right to haul an overweight load than an operator who has no permit at all. We also pointed to the PennDOT regulation which provided that, “[i]f any vehicle or combination operating under a permit to exceed weight limits is found to be operating off the approved route indicated in the permit, the amount of overweight is determined as if there were no permit.” 67 Pa. Code § 179.16(b)(2). By holding that “a party defending a charge of excessive weight on the ground of a special permit must bring himself within the terms of the permit which had been issued,” Liver, 360 Pa.Super. at 210, 520 A.2d at 59, we reasoned that any other conclusion “would permit an operator of an overweight vehicle, who by permit has been authorized to haul over a specified route, to ignore the restriction and, with virtual impunity, take his overweight vehicle on any and all road surfaces throughout the Commonwealth.” Id. at 210, 520 A.2d at 59.

Moreover, § 4962(c) of the Motor Vehicle Code specifically states that “[a] permit shall be revocable for cause and shall be subject to summary confiscation or invalidation as provided by departmental regulations.” 75 Pa. C.S. § 4962(c). The regulations, in turn, specifically provide for the confiscation of a permit due to a “violation of a condition specified therein.” 67 Pa.Code § 179.10(8). Relying in part on this regulation, we held in Commonwealth v. Pollock, 414 Pa.Super. 66, 606 A.2d 500 (1992), that when a driver violates a condition of a permit, such as maximum height of truck, all other violations subsequently found were to be treated as if no permit had been issued. Id. at 76, 606 A.2d at 504. In Pollock, we distinguished Commonwealth v. Austin, 500 Pa. 620, 459 A.2d 336 (1983), where the supreme court disapproved of the language then contained in § 179.10(8), which prescribed the automatic invalidation of a permit where a driver violates a PennDOT safety regulation, which was not covered by his hauling permit. The Austin court held that violation of a Penn-DOT safety regulation does not invalidate the permit under which the driver was operating. The safety regulation was not a condition of the permit itself.

Recognizing that our prior holdings in both Liver'and Pollock would ordinarily constrain us to rule against him in the instant case, appellant argues that the Pennsylvania Legislature, by amending § 4907 in 1994, effectively overruled those cases as well as the PennDOT regulations on which they relied. In 1994, the Pennsylvania Legislature amended § 4907 in two ways. First, subsection (a) was amended to increase the fine from $100.00 to $300.00 for each violation of Chapter 49 for which a penalty is not otherwise provided. In addition, § 4907 was also amended by adding a new subsection (b), which provides:

(b) Penalty for violation of permit.

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704 A.2d 1104, 1998 Pa. Super. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-transportation-v-wasko-pasuperct-1998.