J. A14006/14

NON-PRECEDENTIAL DECISION                SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
JOHN JAMISON,                             :          No. 1403 MDA 2013
                                          :
                         Appellant        :


            Appeal from the Judgment of Sentence, May 15, 2013,
                in the Court of Common Pleas of York County
              Criminal Division at No. CP-67-SA-0000441-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 06, 2014

        John Jamison appeals from the judgment of sentence of May 15, 2013,

following his conviction of two summary counts of failure to comply with the

requirements of a police officer, 75 Pa.C.S.A. § 6311, and operating a motor

vehicle    that   does   not    comply   with   Pennsylvania   Department    of

Trans

affirm.

        On July 9, 2011, Officer Jacob Clevenger was on routine patrol when



windows. (Notes of testimony, 2/1/12 at 6.) Officer Clevenger effectuated

a traffic stop and measured the light transmittance in the glass using a

self-calibrating light meter.    (Id. at 7.)    According to Officer Clevenger,




* Retired Senior Judge assigned to the Superior Court.
J. A14006/14

minimum     as    defined   by     PennDOT       regulations   is    70%.         (Id.)

Officer Clevenger advised appellant that he was in violation of 67 Pa.Code

§                                  -

from the windows within five days. (Id. at 6, 9-10.) Officer Clevenger did

not receive the card back within five days, and after being informed that

appellant did not intend to remove the tint, he issued a citation for a

Section 6311 violation, failure to respond regarding the compliance card, as

well as the citation for violating Section 4107(b)(2), failure to comply with

PennDOT regulations. (Id. at 6-9.)

     A    magisterial   district   judge   convicted     appellant    of    the    two

above-mentioned summary offenses, and following a trial de novo, the

convictions wer

argument that the charges must be dismissed because he should have been

cited under 75 Pa.C.S.A. § 4524(e)(1), which specifically governs window

                                             -                        75 Pa.C.S.A.

§ 4107(b)(2).    On May 15, 2013, the trial court found appellant guilty of

both charges and imposed an aggregate fine of $525.             On July 15, 2013,

appellant was granted permission to file a nunc pro tunc appeal, and notice

of appeal was filed on August 1, 2013. On August 9, 2013, appellant was

ordered to file a concise statement of errors complained of on appeal within

21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; appellant filed




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his statement on September 5, 2013.1 On October 23, 2013, the trial court

filed an opinion, relying on the transcript and its prior order of May 15,

2013.



            I.    Whether the explicit language of 75 Pa.C.S.
                  § 4524(e), which regulates sun screening on
                  car windows, should supercede [sic] the
                  equipment regulations that regulate the same
                  topic as incorporated into the Vehicle Code via
                  the    catch-all  provision   at  75    Pa.C.S.
                  § 4107(b)(2)?



        Because ap

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014) (citation omitted).



w

            (e)   Sun screening       and    other    materials
                  prohibited.--

                  (1)   No person shall drive any motor
                        vehicle with any sun screening
                        device or other material which
                        does not permit a person to see or
                        view the inside of the vehicle
                        through the windshield, side wing
                        or side window of the vehicle.

1
                                               b) statement was untimely
filed, because the trial court accepted the late statement and addressed
                                                       Commonwealth v.
Rodriguez, 81 A.3d 103, 105 n.2 (Pa.Super. 2013), appeal denied, 91
A.3d 1238 (Pa. 2014).


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75 Pa.C.S.A. § 4524(e)(1).    At trial, appellant presented testimony that a

person would be able to see the inside of his vehicle through the tinted

windows.       However,    appellant    was   not   charged     with   violating

Section 4524(e)(1), he was charged with violating Section 4107(b)(2), which

provides:

            (b)   Other violations.--It is unlawful       for   any
                  person to do any of the following:

                  (2)   Operate, or cause or permit
                        another person to operate, on any
                        highway in this Commonwealth any
                        vehicle or combination which is not
                        equipped as required under this
                        part      or     under department
                        regulations or when the driver is in
                        violation of department regulations
                        or the vehicle or combination is
                        otherwise in an unsafe condition or
                        in     violation    of department
                        regulations.



Section 4107(b)(2) was based on his violation of the PennDOT regulation at

67 Pa.Code § 175.67(d)(4), concerning sun screening material:

            § 175.67. Glazing.

            (d)   Obstructions. A vehicle specified under this
                  subchapter shall have glazing free from
                  obstructions as described in § 175.80 (relating
                  to inspection procedure).

                  (4)   A sun screening device or other
                        material which does not permit a
                        person to see or view the inside of
                        the vehicle is prohibited . . . . See


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                       Table X for specific requirements
                       for   vehicles  subject  to   this
                       subchapter.       Passenger    car
                       requirements relating to the rear
                       window are delineated by vehicle
                       model year in Table X.

67 Pa.Code § 175.67(d)(4). Table X sets forth specific light transmittance

requirements for different passenger cars.      It is undisputed that the



transmittance.2

     Appellant argues that the statutory provision at Section 4524(e) of the

Vehicle Code supersedes the PennDOT regulation found at 67 Pa.Code

§ 175.67(d)(4); and therefore, both citations should have been dismissed.

According to appellant, Section 4524(e) and the PennDOT regulation are in

conflict, and statutes always supersede administrative regulations.     See

Commonwealth v. Kerstetter, 62 A.3d 1065, 1069 (Pa.Cmwlth. 2013),

affirmed

                                                            Joyce Outdoor

                                   , 49 A.3d 518, 524 (Pa.Cmwlth. 2012).



its own regulations is controlling unless the interpretation is plainly




2
  Appellant testified that his sun screening allows 20% light transmittance.
(Notes of testimony, 2/1/12 at 16.) This would still be well below the 70%
standard.


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J. A14006/14




Id., quoting Joyce Outdoor Adver., LLC, supra.

      Section 4103(a) of the Vehicle Code grants PennDOT authority to



promulgate vehicle equipment standards for vehicles, equipment and

devices required under this part.       To the maximum extent possible,

consistent with safety, the standards shall be expressed in terms of

minimum acceptable performance levels, measured against objective testing



      We can discern no conflict between 75 Pa.C.S.A. § 4524(e)(1) and

67 Pa.Code § 175.67(d)(4); indeed, they are nearly identical. Both prohibit

sun screening devices or other material which does not permit a person to

see or view the inside of the vehicle. The cases relied upon by appellant,

Kerstetter, supra, and Equitable Gas Co. v. Wade, 812 A.2d 715

(Pa.Super. 2002), are readily distinguishable.

      In Kerstetter, the Commonwealth Court found a clear conflict

between the Public School Code and Department of Education regulations in



                                                      inter alia, children

enrolled in grades above k

attendance provisions applied to any student enrolled in public school,

regardless of whether they were enrolled in kindergarten. The appellant in



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Kerstetter relied on the Department regulations, arguing that because her

children were only enrolled in kindergarten, they were not subject to the

compulsory school attendance law.      The Commonwealth Court disagreed,




inconsistent regulation. Kerstetter, 62 A.3d at 1070.

      Similarly, in Wade, the gas company sought post-judgment interest of

18% based on a lawful tariff it received from the Public Utility Commission

                l as a regulation governing late payments of utility bills set

forth in the Pennsylvania Code. Both these provisions were in clear conflict

with the statute governing post-judgment interest, which is set at the legal

rate of 6% per year. Wade, 812 A.2d at 717, citing 42 Pa.C.S.A. § 8101;

41 P.S. § 202. The Wade court noted that both the regulation and the tariff

were issued by the PUC, not the Pennsylvania Legislature, and are not

                                       Id. at 718.   Therefore, they cannot

supersede Section 8101 which sets forth the legal rate of post-judgment

interest. Id.

      Both Wade and Kerstetter presented clear conflicts or inconsistencies

between the relevant statutes and regulations. In the case sub judice, as

stated above, there is no such conflict or inconsistency.   Both the statute

and the regulation prohibit driving with sun screening material which does

not permit a person to see inside the vehicle. PennDOT then implemented



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this requirement, pursuant to its legislative mandate, by establishing a

minimum standard, i.e., 70% light transmittance. 75 Pa.C.S.A. § 4524(e) is

silent as to acceptable levels of light transmittance, so there is no

inconsistency.     Without the PennDOT standards for permissible light

transmittance thresholds, police would have no objective testing parameters



                                                         Commonwealth v.

Brubaker, 5 A.3d 261 (Pa.Super. 2010), which is wholly inapposite.          In

Brubaker,    the   appellant   was   stopped   and   charged   with   violating

Section 4524(e)(1). Id. at 262. However, at trial, the investigating officer



there was sun screening material present on the subject windows.        Id. at

263-264.    Therefore, the plain terms of Section 4524(e)(1) were not met.

There was testimony at trial that the officer used a window tint meter to

measure the percentage of light transmitted through the glass, and only



window, well below the 70% threshold. Id. at 264. However, appellant was

not charged with violating Section 4107(b)(2), and Section 4524(e)(1) does

not refer to the 70% light transmittance standard. The terms of 67 Pa.Code

§ 175.67(d)(4) could not be utilized to sustain a conviction under

Section 4524(e)(1). Id.




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that he could, in fact, see into the vehicle, the evidence was insufficient to

sustain a conviction for violating Section 4524(e)(1).

      Obviously, our holding in Brubaker

benefit, where appellant was charged with violating Section 4107(b)(2),

making it unlawful to operate a motor vehicle in violation of PennDOT

regulations, which would include the 70% light transmittance standard

referenced in 67 Pa.Code § 175.67(d)(4) and Table X.        The defendant in

Brubaker was charged under 75 Pa.C.S.A. § 4524(e)(1), which does not

prohibit a person from driving a motor vehicle which possesses sun

screening material that reduces transmittance of light to below any

particular standard. As such, Brubaker is inapposite.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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