Com. v. McIlwain School Bus Lines, Inc.

• Citation: 423 A.2d 413,283 Pa.Super. 1
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. McILWAIN SCHOOL BUS LINES, INC.
• Decision Date: 12 December 1980
• Court: Superior Court of Pennsylvania

Page 413

423 A.2d 413 283 Pa.Super. 1 COMMONWEALTH of Pennsylvania, Appellant,
v.
McILWAIN SCHOOL BUS LINES, INC. Superior Court of Pennsylvania. Submitted Nov. 16, 1979.
Filed Dec. 12, 1980.

[283 Pa.Super. 2] D. Gerard Long, Dist. Atty., Ebensburg, for Commonwealth, appellant.

William P. Kelly, Johnstown, for appellee.

Before SPAETH, HOFFMAN and VAN der VOORT, JJ.

SPAETH, Judge:

This is an appeal by the Commonwealth from an order quashing an information. The principal issue is whether a private corporation may be held criminally liable for homicide by vehicle. ¹ On April 3, 1978, a school bus owned by the McIlwain School Bus Lines, Inc. (hereinafter, the corporation) and operated by one of its employes, ran over and killed 6-year-old Lori Sharp; she had just gotten off the bus and was walking in front it when she was run over. On May 26, 1978, the corporation was charged with homicide by vehicle. The corporation waived its right to a preliminary hearing, but subsequently filed a motion to quash the information against it. One ground of the motion was that the statute defining the offense of homicide by vehicle did not apply where the particular regulation allegedly violated involved the equipment required on a vehicle (its front and rear view mirrors) and not the operation of the vehicle. A second ground of the motion was that by definition, the [283 Pa.Super. 3] offense could only be committed by a natural person, not by a corporation. By order filed on March 16, 1979, the lower court granted the corporation's motion to quash. The court did not rule on the first ground of the motion. Instead, the court held, sua sponte, that the information issued against the corporation was insufficient. The court did not rule on the second ground of the motion, and held, as argued by the corporation, that the offense of homicide by vehicle could not be committed by a corporation.

Page 414

1

The information reads:

The District Attorney of Cambria County by this information charges that on or about the 3rd day of April, 1978, McIlwaine (sic ) School Bus Lines, Inc. the Defendant(s) above named in the County aforesaid and within the jurisdiction of this Court did being the owner of school bus No. 64 bearing Pa. registration SA27583 and being operated by Terry L. Rex, did unintentionally cause the death of Lori Sharp, age 6, when the operator of the bus did run over her with the bus when she got off the bus at Corinne St., Johnstown, Pa., and was crossing in front of the bus, all of which is against the Act of Assembly and the peace and dignity of the Commonwealth of Pennsylvania.

The lower court held the information "insufficiently drawn to appraise the defendant of the nature and cause of the accusation," slip op. at 5, assigning three reasons for this conclusion: 1) the information failed to state what law the corporation had allegedly violated; 2) it failed to state whether that law applied to the operation or use of a vehicle or to a traffic regulation; and 3) it failed to state whether the alleged violation of law was the cause of Lori Sharp's death. As the lower court stated, "The above three failures (refer to) essential elements of the offense...." Slip op. at 5. The statute provides:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of the Commonwealth or municipal ordinance applying to [283 Pa.Super. 4] the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 P.S. § 3732 (emphasis added).

Pennsylvania practice requires that an information contain "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint" ... Pa.R.Crim.P. 225(b)(5). ² This requirement is based on Article I, Section 9, of the Pennsylvania Constitution, which provides that "(i)n all criminal prosecutions the accused hath a right ... to demand the nature and cause of the accusation against him." This provision in turn is founded on principles of fairness to the accused:

In a criminal prosecution it is imperative that a defendant be given clear notice of the charges against him .... A defendant should not have to guess which charges have been placed against him. If the charges in an indictment are not clear and explicit a defendant cannot properly defend against them.

Commonwealth v. Wolfe, 220 Pa.Super. 415, 419, 420, 289 A.2d 153 (1972).

See also Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845 (1974).

If one were to look only at the information, one might conclude that it did indeed fail to comply with Pa.R.Crim.P. 225(b)(5), in particular because of its failure to state "which law of the Commonwealth or municipal ordinance" the accused corporation had allegedly violated. In this regard, however, it should be noted that other jurisdictions have split on the issue of whether an indictment or information under a homicide by vehicle statute must contain a specific citation to the law or ordinance allegedly violated. See e. g., People v. Jones, 2 Ill.App.3d 575, 277 N.E.2d 144 (1971); People v. Mowen, 109 Ill.App.2d 62, 248 N.E.2d 685, cert. denied, 397 U.S. 908, 90 S.Ct. 905, 25 L.Ed.2d 89 (1969); State v. Duncan, 130 Mont. 562, 305 P.2d 761 (1957); State v. [283 Pa.Super. 5] Ashton, 175 Kan. 164, 262 P.2d 123 (1953); State v. Forler, 38 Wash.2d 39, 227 P.2d 727 (1951); State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946); Gutierrez v. State, 44 Ariz. 114, 34 P.2d 395 (1934); Williams v. State, 161 Miss. 406, 137 So. 106 (1931);

Page 415

State v. Millin, 318 Mo. 553, 300 S.W. 694 (1927): indictment for homicide caused by automobile accident sufficient even though written in terms of statute without alleging factual details. But see State v. Gilbert, 89 N.H. 134, 194 A. 728 (1937); State v. Gray, 38 N.M. 203, 30 P.2d 278 (1934); People v. Maki, 245 Mich. 455, 223 N.W. 70 (1929); Kimmel v. State, 198 Ind. 444, 154 N.E. 16 (1926): indictment for homicide caused by automobile accident insufficient for failing to allege facts giving rise to defendant's criminal liability.

In Pennsylvania the courts have still to decide whether an information or indictment charging homicide by vehicle must contain a specific citation to the law of the Commonwealth or municipal ordinance allegedly violated. Nor need we make that decision now. Instead of filing a motion to quash the information on the ground that it failed to comply with Pa.R.Crim.P. 225(b)(5), the corporation filed a request for a bill of particulars, asking that the Commonwealth "(p)lease specify the law of this Commonwealth or municipal ordinance which the Defendant was violating which caused the death of Lori Sharp." The Commonwealth answered as follows:

Sections 4551, 4552 of the Pennsylvania Vehicle Code require the Department of Transportation to promulgate rules and regulations pertaining to the equipment required on school buses.

Specifically the rules and regulations require that a mirror be placed on the front of the bus which will permit the operator to see any pedestrian in front of the bus. This mirror was missing.

Also the bus is required to be equipped with a rear view mirror to provide the operator with a proper view to the rear and side of the bus.

The rear view mirror was not properly positioned to afford the operator a proper view of the area.

[283 Pa.Super. 6] (R.R. 25) ³

Thus the Commonwealth's answer to the corporation's request for a bill of particulars responded to the three failures ascribed to the information by the lower court: it identified the law of the Commonwealth allegedly violated; in doing so, it made plain that the law applied to the operation or use of the corporation's vehicle, and not to the regulation of traffic; and although it did not say in so many words that the alleged violation had caused Lori Sharp's death, when read in light of the information, it said so plainly enough.

We recognize that it is arguable that despite the Commonwealth's answer to the corporation's request for a bill of particulars, the information remained insufficient. In Commonwealth v. Hershman, 171 Pa.Super. 134, 90 A.2d 314 (1952), it is said that

(a) motion for a bill of particulars does not question the sufficiency of an indictment but rather assumes its validity. When filed, such bill of particulars does not become a part of the indictment. It therefore cannot remedy by way of amendment a fatal defect in an indictment which charges no offense under the law.

Id. at 139, 90 A.2d at 317.

[283 Pa.Super. 7] In support of this proposition, this court cited Commonwealth v. B. & O. R.R. Co.,

Page 416

223 Pa. 23, 72 A. 278 (1909). In that case, the indictment charged the defendant railroad with maintaining its track across a highway and frequently passing and repassing its trains over the track. The railroad's motion to quash the indictment was overruled, the lower court and this court being of the opinion that if the defendant was dissatisfied with the indictment, its remedy was to request a bill of particulars. Reversing, the Supreme Court said that:

(t)his (a bill of particulars) is never a remedy for an indictment so defective that it charges no offense: 1 Bishop's New Criminal Procedure, sec. 646. A bill of particulars cannot give life to what was dead when it left the grand jury ... (It) can never take the place of what must affirmatively appear on the face of an indictment to which the accused must plead.

223 Pa. at 26-27, 72 A. at 278-279.

Here, however, as has been noted, the corporation did not move to quash the information on the ground that it failed to give sufficient notice of the offense charged and therefore failed to comply with Pa.R.Crim.P. 225(b)(5). Instead, having obtained a bill of particulars, the corporation moved to quash the information on the basis of information in the...