Commonwealth v. Zajacz

54 Pa. D. & C.2d 146, 1971 Pa. Dist. & Cnty. Dec. LEXIS 88

Opinion

HEIMBACH, P. J.,

We have before us on certiorari the transcript for which the writ was issued. The transcript shows that on May 13, 1971, defendant was charged in a citation with violating section 1008(e) of The Vehicle Code, 75 PS 1008 (e); that a hearing was held on June 16, 1971, when the charge was amended to show a violation of section 1008(b).

Obviously, there is a fatal jurisdictional defect. Rule 104 (6) of The Pennsylvania Rules of Criminal Procedure requires that in a summary case a citation of the specific section and subsection of the statute allegedly violated must be set forth, and rule 115 requires that where a substantive defect in the citation appears, defendant shall be discharged. This latter rule precludes any amendment.

Wherefore, we enter the following

ORDER

Now, to wit, December 30, 1971, the charge of violating section 1008(b) of The Vehicle Code by defendant is dismissed. The justice of the peace shall refund all sums paid by defendant.

Costs on the County of Carbon.