Commonwealth v. Gernsheimer

• Decision Date: 21 March 1980
• Citation: 276 Pa.Super. 418,419 A.2d 528
• Parties: COMMONWEALTH of Pennsylvania v. Solly GERNSHEIMER, Appellant.
• Court: Pennsylvania Superior Court

419 A.2d 528

276 Pa.Super. 418

COMMONWEALTH of Pennsylvania v. Solly GERNSHEIMER, Appellant.

Superior Court of Pennsylvania.

March 21, 1980

Argued Sept. 10, 1979.

Alan G. Leisawitz, Reading, for appellant.

J Michael Morrissey, Dist. Atty., Reading, for Commonwealth appellee.

Before CERCONE, President Judge, and WATKINS and LIPEZ, JJ.

WATKINS Judge:

This is an appeal from the order of the Court of Common Pleas of Berks County, Civil Division, by the defendant-appellant, Solly Gernsheimer, from a summary conviction for violation of 75 Pa.C.S.A. 3362(a)(3). The Common Pleas Court, after hearing had found defendant guilty of the offense. The defendant had appealed his conviction before the magistrate to the Common Pleas Court. The defendant had been found guilty of operating his automobile at a speed of sixty (60) miles per hour in a speed zone, marked by traffic-control signs, which established the maximum allowable speed at forty-five (45) miles per hour in violation of the above section.

Section 3362 of the Motor Vehicle Code of Pennsylvania provides as follows:

"Section 3362. Maximum Speed Limits.

(a) General rule.-Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:

(1) 35 miles per hour in any urban district.

(2) 55 miles per hour in other locations.

(3) Any other maximum speed limit established under this subchapter."

Defendant was convicted of operating his vehicle in violation of subsection (a)(3) of this section. On appeal he challenges the legality of the speed zone. More specifically, he alleges that a speed zone in which the maximum speed is set at less than fifty-five (55) miles per hour under subsection (a) (3) is unlawful unless such a speed zone is established on the basis of an engineering and traffic investigation citing 75 Pa.C.S.A. 3363 for this proposition. Said section provides as follows:

"Section 3363. Alteration of Maximum limits.

The department or local authorities on highways under their respective jurisdictions, upon the basis of an engineering and traffic investigation, may determine that the maximum speed permitted under this subsection is greater or less than is reasonable and safe under the conditions found to exist upon any such highway or part thereof and establish a reasonable and safe maximum limit. The maximum speed limit may be made effective at all times or at times indicated and may vary for different weather conditions and other factors bearing on safe speeds. No maximum speed greater than 55 miles per hour shall be established under this Section."

The court below held that since the above-mentioned provisions of the Motor Vehicle Code became effective on July 1, 1977 and since no evidence was presented at the hearing indicating the date that the speed zone was established as a 45 mile per hour zone and since no "engineering and traffic investigation" was required prior to that date that defendant's contention was not a valid reason to dismiss the case against him. Section 3111 of the Motor Vehicle Act, 75 Pa.C.S.A. 3111, provides as follows:

"3111. Obedience to Traffic-Control Devices.

(a) General Rule.-Unless otherwise directed by an uniformed police officer or any appropriately attired person authorized to direct, control or regulate traffic, the driver of any vehicle shall obey the instructions of any applicable official traffic control device placed or held in accordance with the provisions of this title, subject to the privileges granted the driver of an authorized emergency vehicle in this title.

(b) Proper position and legibility of device.-No provision of this title for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violations an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic-control devices are required, the section shall be effective even though no devices are erected or in place.

(c) Presumption of authorized placement.-Whenever official traffic-control devices are placed or held in position approximately conforming to the requirements of this title, the devices shall be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence.

(d) Presumption of proper devices.-Any official traffic-control device placed or held pursuant to the provisions of this title and purporting to...