Commonwealth v. Sanders

28 Pa. D. & C.3d 12, 1983 Pa. Dist. & Cnty. Dec. LEXIS 233
CourtPennsylvania Court of Common Pleas, Pike County
DecidedOctober 4, 1983
Docketno. 111-1983
StatusPublished

This text of 28 Pa. D. & C.3d 12 (Commonwealth v. Sanders) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Pike County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sanders, 28 Pa. D. & C.3d 12, 1983 Pa. Dist. & Cnty. Dec. LEXIS 233 (Pa. Super. Ct. 1983).

Opinion

THOMSON, P.J.,

Defendant has appealed a summary motor vehicle conviction for speeding. Defendant seeks to have ruled inadmissible the results of a VASCAR speed timing test which clocked defendant’s tractor-trailer at 44 mph in a posted 25 mph zone on the night of January 14, 1983. Defendant concedes that this VASCAR system had been tested and certified but contends that its use in this case violates 75 C.S.A. §§6109b and 6109c because the local borough had failed to pass an ordinance expressly authorizing the use of the VASCAR system and to post warning signs that the speed limit could be enforced by the use of VASCAR. The matter was argued on August 26, 1983. Judgment was reserved pending the submission of briefs on this issue. The Boroughs of Milford and Matamoras and the Township of Westfall which use the VASCAR system have submitted an amicus curiae brief

Defendant’s argument is- based on the statutory interpretation of 75 Pa.C.S.A. §6109 adopted by Judge Creany of Cambria County in Commonwealth v. Herdman, 21 D.&C. 3d 48 (1981). 75 Pa. C.S.A. §6109(a)(10) and (11) give local authorities the power to alter or establish speed limits and to enforce these speed restrictions. However, 75 Pa. C.S.A. §6109(b) states that “action taken by local authorities under this section shall be: (1) by ordinance of the local governing body.” 75 Pa.C.S.A. §6109(c) states that “no regulation or ordinance enacted under subsection (a)(10), (11) shall be effective unless official traffic-control devices giving notice of the traffic regulation or ordinances are [14]*14erected upon or at the entrances to the highway or part thereof affected as may be most appropriate.”

Using these two statutory provisions, Defendant argues that before a borough can use any speed timing device authorized in 75 Pa.C.S.A. §3368 to enforce the speed restrictions it sets under 75 Pa. C.S.A. §6109(a); it must first enact an ordinance authorizing the use of this speed timing device under 75 Pa.C.S.A. §6109(b) and post official traffic-control signs giving notice, that such device may be used in accordance with 75 Pa.C.S.A. §6109(c).

Defendant’s argument is bolstered by the holding of Commonwealth v. Herdman, 21 D.&C. 3d 48 (1981) that before a municipality can use an ESP Model TK100 device it must both adopt the use of the device by ordinance and post notice on the highways that this device could be used to enforce the speed limit. The VASCAR device employed in this case is nearly identical to the ESP device used in Herdman. Both are electrical-mechanical devices approved for use by local municipalities in enforcing speed restrictions. 10 Pa. Bull. 3212 (1980); 8 Pa. Bull. 3378 (1978). Both work by placing sensor strips across the road parallel to each other and timing the speed it takes for a vehicle to go from one strip to the next. While the ESP is electronically activated by the force of a passing car; the VASCAR system depends on an officer manually activiting the device as soon as a vehicle hits the front sensor strip.

Speed restrictions may be enforced by a variety of devices authorized in 75 Pa.C.S.A. §3368 including speedometers, stop watches, electrical-mechanic devices like ESP and VASCAR, and in the case of the State Police, by radar. The court in Herdman analogized the ESP and VASCAR devices to radar and concluded that protective provisions like ordi[15]*15nances and warning signs were necessary to protect the public from possible abuses by revenue hungry municipalities. Commonwealth v. Herdman, 21 D.&C. 3d 48, 54 (1981). This court disagrees and characterizes with VAS CAR system as a type of glorified stopwatch. Therefore the elaborate safeguards enunciated in Herdman are not needed. Warning signs should be restricted to radar enforcement as they were in 75 P.S. §1002, now repealed by 75 Pa. C.S.A. §3368(c0)(2) which deleted all mention of warning signs. The ordinance requirement applies to the creation of a speed limit and a police department authorized to enforce that limit, not to the method of enforcement.

The court now turns to an examination of each of defendant’s arguments in more depth.

I. REQUIREMENT OF AN ORDINANCE APPROVING VASCAR USE

As noted before, 75 Pa.C.S.A. §6109(b) states that actions establishing and enforcing speed limits by local authorities shall be undertaken by ordinance of the local governing body. The court believes that this provision is limited to establishing local speed limits, posting the speed limits and authorizing the local police department to patrol the roads and enforce these limits. To hold that 75 Pa.C.S.A. §3109(b) requires that a local governing body must pass an ordinance authorizing the use of every speed timing device permitted by 75 Pa.C.S.A. §3368 would be ridiculous.

For instances, 75 Pa.C.S.A. §3368(a) authorizes a police officer to use his speedometer as a speed timing device. This court simply refuses to believe that a local governing body must pass an ordinance under 75 Pa.C.S.A. §6109(b) granting a police officer permission to use his speedometer to enforce speed [16]*16restrictions enacted under 75 Pa.C.S.A. §6109(a)(10) and (11).

The VASCAR system used in this case is classified under 75 Pa.C.S.A. § 3368(c) as a mechanical or electrical device. A similar device also authorized by the Superior Court in Commonwealth v. Manny, 272 Pa. Super 93, 414 A.2d 685, (1979) as a speed timing device is the common stopwatch. In that case, the police officers stationed their cars one-eighth of a mile apart. When a car passed, the first officer started his stopwatch. When the car passed the second one he radioed to his partner to stop the stopwatch. This is similar to the method used in the present case. The officer measured off a one-eighth of a mile strip at the end of which he put down the VASCAR sensor strips. When a car hit the first strip he started the clock. When the car hit the second strip the speed was recorded.

In Manny, no one made the argument that the borough council must pass an ordinance authorizing the police to use stopwatches. “(I)n ascertaining the legislative intent it is presumed that the legislature did not intend an absurd result or one which is impossible of execution or unreasonable.” Department of Transportation v. Burke, 31 Pa. Commw. 290 375 A.2d 1375, 1379, (1977); quoted in Commonwealth v. Manny, 11 D.&C. 3d 714, 719 (1978).

The court feels that this is the case here. The borough has acted by ordinance in establishing speed limits, posting signs, creating and equiping a police force, and authorizing this police force to enforce its speed restrictions. But to have to authorize its police force to employ the stopwatches, speedometers and electrical-mechanical devices already authorized under the Motor Vehicle Code, 75 Pa.C.S.A. §3368, would be a duplication of effort. The logical scheme of things is to permit police officers to enforce the [17]*17local ordinances with the means explicitly permitted by the legislature in the Motor Vehicle Code. The court feels that 75 Pa.C.S.A. §6109(b) is concerned with the implementation of speed restrictions and authority to enforce them, not the means of enforcement which are controlled by 75 Pa.C.S.A. §3368.

II. REQUIREMENT OF SIGNS WARNING “SPEED CHECKED BY VASCAR”

75 Pa.C.S.A.

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Related

Commonwealth v. Manny
414 A.2d 685 (Superior Court of Pennsylvania, 1979)
Alves v. Alves
262 A.2d 111 (District of Columbia Court of Appeals, 1970)
Commonwealth v. Kerns
420 A.2d 542 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Gernsheimer
419 A.2d 528 (Superior Court of Pennsylvania, 1980)
Fornwalt Motor Vehicle Operator License Case
202 A.2d 115 (Superior Court of Pennsylvania, 1964)
Commonwealth ex rel. Speaks v. Rundle
224 A.2d 805 (Superior Court of Pennsylvania, 1966)
Commonwealth v. Burke
375 A.2d 1375 (Commonwealth Court of Pennsylvania, 1977)

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Bluebook (online)
28 Pa. D. & C.3d 12, 1983 Pa. Dist. & Cnty. Dec. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sanders-pactcomplpike-1983.