Commonwealth v. Colbert

BECKERT, J.,

This is an appeal from a summary conviction of defendant for violation of section 1002(b) (6) of The Vehicle Code, 75 PS §1002(b) (6). Defendant, Richard P. Colbert, was apprehended on February 19, 1971, by Officer Naegele, of the Northampton Township Police De *420partment, of this county. He was charged with speeding at the rate of 90 miles per hour in a 55-mile-per-hour speed zone. The officer issued to defendant at that time a citation for the offense on which was the typewritten name “Naegele” but which did not contain the handwritten signature of the arresting officer.

On April 22, 1971, a hearing was held before the justice of the peace. At the hearing, counsel for defendant at that time moved that the proceedings be quashed because the citation had not borne the handwritten signature of the police officer. Pennsylvania Rule of Criminal Procedure 132(6) was cited as authority for this position. Rules of Criminal Procedure Nos. 131 to 139, inclusive, pertain only to the practice in Bucks, Erie and Luzerne Counties. The justice of the peace overruled this motion, but ruled that defendant would not waive any right he may have to object to the alleged defect. The transcript of the justice of the peace discloses that both Officer Naegele and defendant were sworn and testified to the merits. Defendant was found guilty of the charge.

Defendant contends that the failure of the police officer to sign the citation was a substantive defect requiring his discharge by the issuing authority under Pa. R. Crim. P. 115. This rule provides:

“If at any time prior to disposition of a case by an issuing authority it appears that a warrant, summons, complaint or citation contains a substantive defect, the defendant shall be discharged, but nothing in this rule shall prevent the filing of a new complaint, and the issuance of process charging another offense in a proper manner.”

Defendant urges that the transcript of the justice of the peace should be quashed and that he be discharged.

*421We would normally feel obliged to discuss but one issue as we believe that the resolution of that issue would be dispositive of the matter before us. That issue is whether the questions posed by defendant can be raised on appeal. However, as the dissenting opinion, which was originally the majority opinion, discusses other aspects of this case, we feel compelled to comment on the other phases and questions raised at the time of argument and at least in part treated in the now dissenting opinion.

Assuming, for purposes of argument, that the arresting officers signature is required on the citation, we would have no difficulty in finding, as have other courts, that an instrument is deemed to be signed if the signature is typed thereon: Weiner v. Mullaney et al., 140 P. 2d 704, 712 (Cal. App. 1943); Piemens v. Didde-Glaser, Inc., 224 A. 2d 464, 467 (Md., 1966).

The word “signature” has been defined as “. . . the act of putting down a man’s name at the end of an instrument, to attest its validity . . .”: Bouv. Law Dictionary, vol. 3, p. 3071. Exactly what constitutes a “signing” has never been reduced to a judicial formula in this Commonwealth (Brennan’s Estate, 244 Pa. 574 (1914)), and, therefore, whether or not a mark of some nature constitutes a signature depends upon all of the surrounding circumstances and the intention of the person affixing the mark to the instrument. Accordingly, it has been held that it is not even necessary that the person’s name be used to designate a good or sufficient signature. See Kimmel’s Estate, 278 Pa. 435 (1924), where the words “will dost your Truly Father” was held to be a good signature, as was the word “Pop” held to be sufficient in Kling Estate, 12 D. & C. 2d 588 (1956).

A serious doubt exists in our minds as to whether *422or not any “signature” is required. It cannot be argued that Pennsylvania Rule of Criminal Procedure 132 entitled “Contents of Citation” sets forth as one of the required averments in the citation “the signature of the police officer and the date of issue.” It is interesting, however, to note that the form of the citation suggested by the rules, as set forth in rule 133(a) does not have any appropriate space or numbered block set aside for the signature of the officer. Therefore, at first blush, one would be inclined to agree that rules 132(a) (6) and 133 are inconsistent when it comes to construing the meaning of the phrase “signature of the police officer.” I submit that the two sections are not at odds after a study is made of the purpose for which the citation is to be used.

The confusion which I contend flows from the dissenting opinion arises partly from the failure of the dissent to distinguish between a citation and a warrant. Rule 134 sets forth the procedure to be followed if defendant does not make a proper response within the time prescribed. The following language is found in subsections (3), (4) and (5) of rule 134:

“(3) An issuing authority before whom a citation is filed shall, if proper response is not made in accordance with these rules by the defendant within the ten (10) days prescribed, notify the police officer within three (3) days thereafter.
“(4) The police officer shall appear within twenty (20) days before the issuing authority, and under oath shall attest to the facts contained in the citation previously filed.
“(5) Thereafter, the issuing authority shall issue a warrant for the arrest of the defendant.”

Therefore, it is submitted that the name and not the signature of the arresting officer is required on the citation, in order that the issuing authority can *423contact that officer, in the event of the failure of defendant to respond to the citation within the time specified therein. The name of the officer also is required for the purpose of advising defendant of the identify of the issuing officer. In many instances, a writing of one’s name would be illegible and would not convey this information, either to defendant or to the issuing authority.

The function to be served by a citation is to avoid the unceremonious removal, perhaps in the middle of the night, of the responsible citizen from the highway and his subsequent incarceration in the local lockup in lieu of bail. The criminal rules, therefore, are designed to permit the officer to execute a citation on the spot and to issue the citation which, in effect, is a release of defendant on his personal recognizance. The citation is not a warrant, this being apparent from the wording appearing in the bold type at the end of the citation, which reads “Failure to respond within the time specified above will result in the issuance of a warrant for your arrest.” The citation does not constitute original process, for, as that term is used, original process means the power to compel a defendant to appear before one possessing legal authority. The citation does not compel appearance and is nothing more than a uniform traffic ticket issued as a courtesy to defendant, giving him advance notice of the prosecution and affording to him the right to voluntarily appear before the issuing authority. Therefore, in my opinion, the citation does not have to comply with article I, sec. 8, of the Pennsylvania Constitution, as it is not this instrument which causes defendant to be seized, but it is the warrant thereafter issued in compliance with rule 134(4) and (5). A warrant under that section cannot issue unless the citation issuing officer shall “under *424oath . . . attest to the facts contained in the citation.”

However, in the event defendant voluntarily appears before the issuing authority, jurisdiction over defendant is obtained. In the instant case, defendant did appear and after having appeared now files this appeal on the grounds that the citation was defective as it failed to contain the officer’s “signature.” In electing to proceed by appeal, rather than by certiorari, defendant has waived all formal defects in the proceedings before the issuing authority: Commonwealth v. Palms, 141 Pa. Superior Ct. 430 (1940); Commonwealth v. Burall, 146 Pa. Superior Ct. 525 (1941); Commonwealth v. Trufley, 170 Pa. Superior Ct. 200 (1952). The basis raised by the appeal falls within the realm of formal defects and, therefore, could not be raised in this manner.

Defendant’s appeal should, therefore, be dismissed and, accordingly, we enter the following

ORDER

And now, February 16, 1972, defendant’s motion to quash the transcript of the justice of the peace and to be discharged is hereby denied and refused. A hearing will be scheduled on defendant’s appeal at a date and time to be fixed by this court.

Satterwaite, P. J., and Walsh, J., join in this opinion. Bodley, J., and Mountenay, J., concur in the result.