Commonwealth v. Pollock

*82 HUDOCK, Judge

concurring and dissenting.

I join in the disposition of all of the issues raised on appeal save one. While I, like the majority, would affirm the judgment of sentence imposed upon Appellant for the § 4901 conviction, I respectfully dissent from the majority’s affirmance of the § 4941(a) conviction. I believe the disposition of that conviction is controlled by our Supreme Court’s decision in Commonwealth v. Austin, 500 Pa. 620 , 459 A.2d 336 (1983).

In Austin, supra, Austin had obtained a permit to haul an oversized and overweight load, i.e., a bulldozer. In transit, however, he violated several safety regulations promulgated by PennDOT. Namely, the vehicle had not been accompanied by two pilot cars and had not displayed “OVERSIZED LOAD” placards. After Austin was cited for these violations pursuant to § 4901(a), 1 his vehicle was weighed and found to be overweight. Hence, Austin was also cited for operating an overweight vehicle pursuant to § 4941(a). Following conviction, Austin was fined $50 for the safety regulation violation and $20,400, plus costs, for the overweight violation. Commonwealth Court affirmed the judgment of sentence. Our Supreme Court vacated Austin’s conviction for operating an overweight vehicle, holding:

The loss of a permit in mid-transit would itself be no small penalty to one who might thus be grounded with an unmovable load. The different penalties provided by the PennDOT regulation address different objectives, each designed to punish and prevent different wrongs. We hold, therefore, that the automatic invalidation of a permit by violation of the safety regulations is a penalty in and of itself and does not trigger all the penalties possible under the regulations.

Id., 500 Pa. at 623 , 459 A.2d at 338 . See also, Commonwealth v. J.F. Lomma, Inc., 404 Pa.Super. 185 , 590 A.2d *83 342 (1991) (violation of safety regulations do not trigger penalties for width and weight restriction violations). The Commonwealth attempts to distinguish Austin, supra, from the present appeal because the latter involves a violation of a height restriction of the special hauling permit rather than a related safety regulation. I find this to be a distinction without a difference. Section 179.10(8) of the Pennsylvania Code, both as it existed when Austin was decided 2 and currently, includes violations of the conditions specified in the permit and the related regulations. Moreover, Austin and Appellant were both first cited for a § 4901(a) violation. Essential to the holding in Austin is that the automatic invalidation of a permit does not trigger all the possible penalties under the regulations. In other words, the invalid permit does not invalidate the permit ab initio, and, therefore, place the driver in the same position he would have been in had he never sought and received a permit. 3

Applying the Austin holding/ to the present case, the confiscation or invalidation of a permit for a height violation does not trigger the weight regulations of the Vehicle Code as if the permit was never issued. Indeed, it is only if the vehicle “is found to be operating off the approved route indicated in the permit, [that] the amount of overweight is determined as if there were no permit.” 67 Pa.Code § 179.- *84 16(b)(2). 4 See also, Commonwealth v. Liver, 360 Pa.Super. 205 , 520 A.2d 56 (1987) (while on unauthorized highway, overweight permit holder has no greater right than operator who has no permit at all).

Given the above statutory and case authority, I cannot agree with the effect given by the Commonwealth and my colleagues to the automatic invalidation of a permit. The majority, as did the trial court, states “that it would have been absurd for the trooper to allow the vehicle, which was in excess of the permitted height, to proceed down the road as though the permit was still valid.” (Majority Opinion at p. 76.) There is no indication in the record that Appellant proceeded after his permit was confiscated. Indeed, it was only at the direction of the police officer that Appellant moved his vehicle after being stopped. Thus, Appellant lost his permit in mid-transit and was “grounded with an unmovable load.” Commonwealth v. Austin, supra, 500 Pa. at 623 , 459 A.2d at 338 . Had Appellant proceeded after his permit was confiscated, Appellant should have been treated as if he had no permit. It is only in this situation that the fine imposed under § 4941(a) by the trial court and affirmed by the majority would be correct.

I would affirm Appellant’s judgment of sentence for the § 4901(a) conviction and vacate the judgment of sentence in regard to the § 4941(a) conviction.

. 75 Pa.C.S. § 4901(a) (Purdon 1977) prohibits the operation of a vehicle that is not equipped as required by the Vehicle Code or the regulations upon any highway of this Commonwealth.

. At the time of the violation in Austin , the automatic invalidation provision was found at 67 Pa.Code § 51.10(8) and read as follows:

(8) The permit shall be automatically invalidated by the violation of any condition specified therein, by violation of these regulations or by the giving of false information on the application for the permit. Any such violation or falsification will also be grounds for refusal to issue permits on future applications.

. I am not unaware of Commonwealth v. Mercer, 294 Pa.Super. 544 , 440 A.2d 599 (1982) in which a panel of this Court found that the transport of a divisible load, rather than the non-divisible load allowed by statute, rendered the permit void ab initio and, therefore, upheld the overweight penalty imposed upon the defendant. Such a holding necessarily relied on the fact that a special hauling permit could not be issued to carry a non-divisible load. See gen., 75 Pa.C.S. § 4961 (Purdon 1977 & Supp.1991). Thus, Mercer is distinguishable from the facts present in the case sub judice. Moreover, Mercer was decided before our Supreme Court’s decision in Commonwealth v. Austin, supra.

. 67 Pa.Code § 179.16(b)(2) reads as follows:

(2) Other permit violations. If any vehicle or combination operating under a permit to exceed weight limits is found to be operating off the approved route indicated in the permit, the amount of overweight is determined as if there were no permit.