Commonwealth v. Rodgers

54 Pa. D. & C.2d 400, 1971 Pa. Dist. & Cnty. Dec. LEXIS 93

• Court: Pennsylvania Court of Common Pleas, Warren County
• Decided: December 27, 1971
• Docket: no. 31
• Status: Published

Opinion

WOLFE, P. J.,

This is an appeal by defendant from his conviction in the district magistrate’s court in that defendant unlawfully operated an International Truck upon the public highways with a gross weight of 81,550 pounds when the permitted legal weight for such vehicle is 73,280 pounds, resulting in an overweight of 8,270 pounds and defendant was fined in accordance with the schedule of fines as provided in The Vehicle Code, as amended August 13, 1963, P.L. 761, sec. 2, 75 PS §903, in the amount of $860.

The facts are not grossly in conflict and, in the main, leave an issue of law to be resolved. The evidence established on October 28, 1971, defendant was stopped by the Warren Borough police when they observed what appeared to be an overload on defendant’s truck of stone or a subbase road material. Defendant was taken to an official weighing scale in the borough and was weighed out by the borough scales at 81,550 pounds. He was thereafter taken to the magistrate’s court where defendant made two telephone calls and thereafter requested a reweigh. The Commonwealth admitted that it denied defendant’s request for the reweigh, taking the position that the statute makes it mandatory for the operator to “forthwith” request the reweigh upon different scales, and defendant, in this case, did not make such request until he was arraigned before the magistrate.

The entire length of time from defendant’s arrest to the point of arraignment took approximately one-half hour to 45 minutes.

Defendant contends his request was made within a reasonable length of time and the Commonwealth should have permitted the reweigh, and since it acknowledges no reweigh was granted, the case should be dismissed. We partially agree with defendant; however, defendant will not be exonerated entirely, for reasons hereinafter set forth.

Section 904 of The Vehicle Code provides, as pertinent to this case, that when a peace officer having reason to believe that the gross weight of the vehicle is unlawful he is authorized to weigh the same and whenever the weighing shows that the gross weight is unlawful the operator may forthwith elect to have the same reweighed in which case the peace officer shall reweigh the same upon different scales. Subsection (c) of section 904 provides following a reweigh the weight found pursuant to the original weigh or the weight found upon the reweigh, whichever shall be less, shall be deemed the actual weight.

The Commonwealth contends defendant did not “forthwith” request or elect a reweigh immediately following the original weigh indicating the overweight. We are of the opinion the Commonwealth is, under the circumstances of this case, interpreting the legislative intent too narrowly. The statute is silent as to what may be defined as “forthwith.” It appears that the obvious intent of the legislature was to prevent the lessening of the load from the time of the original arrest to the time of the request for a reweigh considering all of the circumstances surrounding the case.

Here, the arrest was in October, the defendant’s truck was impounded by the police during the course of the defendant’s arrest and was held for a period of two days and the Commonwealth acknowledged that from the point of arrest to the point of time for request of reweigh was made no loss of weight could have occurred.

Black’s Law Dictionary, Fourth Edition, defines “forthwith” as meaning “immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch: State ex rel. Board of Education of City of Tulsa v. Morley, 168 Okla. 259, 34 P.2d 258, 261 . . . Within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished. Harris v. Stewart, 187 Miss. 489, 193 So. 339, 342. The first opportunity offered. Abbott v. State, 117 Neb. 350, 250 N.W. 578, 579.”

In the legal work, Words and Phrases, Volume 17, “forthwith” is defined by numerous cases in different jurisdictions, including Pennsylvania. This state has defined that “forthwith” does not mean instantaneously, but within reasonable time: Drumbar v. Jeddo Highland Coal Company, 155 Pa. Superior Ct. 57; 37 A.2d 25, 27. This also appears to be the Federal rule as in U.S. v. Klee, D. C. Wash. 50 Fed. Sup. 679, holding courts have always held that when a duty is imposed to do an act “forthwith” the test is, was it done within a reasonable time.

“Forthwith” means a reasonable time: Pittsburgh V. & C. Ry. Co. v. Commonwealth, 101 Pa. 192, 196.

We hold, therefore, that considering the circumstances of this case where there was no showing of loss of weight or even a possible loss of weight during this relatively short period of time the defendant was denied his statutory right to a reweigh.

As stated, defendant asserts he must be discharged completely of the alleged violation. With this we do not agree.

The facts are unequivocal and undisputed by the defendant that he was given a weigh slip from the company in which his truck was loaded with a gross weight of 78,200 pounds. The statute permits a gross weight of 73,280 pounds. Therefore, at the time defendant left the weigh scale with his load he was aware he was 4,920 pounds overweight. Defendant argues this is of no moment since the Commonwealth did not comply with the statute. We cannot accept this reasoning as the Court is asked to close its eyes to an admitted violation or at least one that the defendant did not deny. There is no reason to disbelieve the Commonwealth’s testimony to the effect when the defendant was stopped by the police officers the defendant handed them a weigh slip upon their request indicating the overweight.

The statute is clear in this case. It provides no motor vehicle, and no combination of which a motor vehicle is a part, shall, when operated upon a highway, have a gross weight exceeding 73,280 pounds. The statute provides a table to calculate the amount of fine on the overweight. Here, it has been established by the Commonwealth beyond a reasonable doubt that the defendant was overweight 4,920 pounds. Under the penalty portion of the act in any case in which the gross weight of a combination exceeds 73,280 pounds the fine shall be doubled in accordance with the schedule set down in the schedule of fines.

A combination under The Vehicle Code is defined as: “Two or more vehicles physically interconnected in tandem, and propelled by the foremost vehicle when operated on a highway.” Here, from all of the evidence, although there was no direct evidence on the point, it appears the defendant’s truck would fall within a definition of a motor vehicle rather than a combination and thus the single fine is imposed of $270 calculated in accordance with the schedule of fines.

For the foregoing reasons the court makes the following order:

ORDER

And now, December 27, 1971, the sentence of the magistrate is vacated and the defendant is found guilty of operating a motor vehicle in violation of section 903 by carrying thereon an excess weight of 4,920 pounds and is sentenced to pay the costs of prosecution and a fine of $270.

Exceptions noted to the Commonwealth and to the defendant.

Francis I. Farley, for exceptant. tsador Kranzel, Assistant City Solicitor and with him, M. Leon Sussman, Assistant City Solicitor. Martin Weinberg, City Solicitor, contra.