dissenting:
Because I find merit to Appellant’s argument that Pennsylvania’s helmet law, as presently implemented by regulation, is unconstitutionally vague as applied, I respectfully dissent.
In Park Home v. City of Williamsport, 545 Pa. 94, 680 A.2d 835 (1996), our supreme court noted that:
[V]ague statutes deny due process in two ways: they do not give fair notice to people of ordinary intelligence that their contemplated activity may be unlawful, and they do not set reasonably clear guidelines for law enforcement officials and courts, thus inviting arbitrary and discriminatory enforcement.
Id., 545 Pa. at 101, 680 A.2d at 838 (citation omitted). “A statute is unconstitutionally vague where it fails to provide reasonable notice of the [proscribed] conduct to the person charged with violating its prohibitions.” Commonwealth v. Balog, 448 Pa.Super. 480, 487, 672 A.2d 319, 322 (1996), alloc. denied, 545 Pa. 660, 681 A.2d 176 (1996), cert. denied, - U.S. -, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997).
Pennsylvania’s helmet law provides, in pertinent part, as follows:
(a) Protective headgear. — Except as provided in subsection (d) [relating to three-wheeled motorcycles with an enclosed cab], no person shall operate or ride upon a motorcycle or a motor-driven cycle (other than a motorized pedalcycle) unless he is wearing protective headgear which complies with standards established by the department.
(c) Approval of Equipment. — The department may approve or disapprove protective headgear and eye-protective devices required under this section and may issue and enforce regulations establishing standards and specifications for the approval of the headgear and devices. The department shall publish lists of all protective headgear and eye-protective devices by name and type which have been approved.
75 Pa.C.S. § 3525.
The Pennsylvania Department of Transportation (PennDOT) has not approved or disapproved any specific type of protective headgear, nor has it issued any regulations establishing standards and specifications for the approval of such headgear, despite being given express authority to so by the legislature in 75 Pa.C.S. § 3525. Consequently, a list of protective headgear approved for use in this Commonwealth has not been published by PennDOT.
Further, although PennDOT has promulgated regulations for protective headgear, published at 67 Pa.Code § 107.1 et seq., these regulations simply mirror standards issued by the federal Department of Transportation, which were intended for designers and manufacturers of protective headgear. At the present time, these highly technical performance standards are the only source to which a Pennsylvania motorcyclist may refer to ascertain whether a particular helmet is legal.
*916In Washington v. Maxwell, 74 Wash.App. 688, 878 P.2d 1220 (1994), a statutory scheme similar to the one presently at issue was considered by the Washington Court of Appeals. In Maxwell, the defendant was charged with violating a statute, RCW 46.37.530(l)(c), which required motorcyclists to wear approved protective headgear, because his helmet did not conform to the requirements of a Washington state patrol regulation, WAC 204-10-040. That regulation had adopted the same federal performance standards for motorcycle helmets as PennDOT adopted in 67 Pa.Code § 107.5.
The Washington Court of Appeals concluded that such a scheme is void for vagueness because it does not provide the average citizen with fair notice and ascertainable standards to clearly understand the proscribed conduct. In this regard, the Maxwell court stated:
The federal regulation has numerous sections relating to the qualities and tests to be supplied by the manufacturer. Ordinary citizens would not be able to tell which protective helmet met those requirements, even if they could find the regulation. In adopting the entire regulation, the state patrol has made it impossible for ordinary citizens to understand what is required to comply with the Washington statute. The state patrol should redraft the regulation in ordinary language so that ordinary citizens would know what to look for to be certain they are complying with the law.
Id., 74 Wash.App. at 693, 878 P.2d at 1222-1223 (emphasis added). Because I perceive no meaningful distinction between the helmet law which was struck down in Washington and the statutory scheme presently in effect in our Commonwealth, I find the reasoning employed by the Washington Court of Appeals in Maxwell persuasive.
Unlike the majority, I do not find our court’s decision in Commonwealth v. Kautz, 341 Pa.Super. 374, 491 A.2d 864 (1985), to be dispositive of the issue presented in this appeal. In Kautz, this court held that the legislature did not exceed its constitutional authority by enacting Pennsylvania’s helmet law because the statute is reasonably related to a rational state interest, protecting our Commonwealth from the negative effects of motorcycle accidents on our highways. Kautz also rejected a claim that the helmet law was unconstitutionally vague because it placed upon a motorcyclist the burden of obtaining a list of approved headgear, finding that “promulgation of standards by the Department of Transportation represents a constitutional delegation of authority.” Kautz, supra, 341 Pa.Super. at 381, 491 A.2d at 867. The issue here, however, is not whether the statute is constitutional as written, but rather, whether it is constitutional as applied.
PennDOT has not issued a list of approved headgear, and the standards which it has published are insufficient, in my view, to enable the average motorcyclist in this Commonwealth to readily ascertain which helmets are permitted, and which are prohibited. In sum, § 3525(a) of the Motor Vehicle Code, as implemented through 67 Pa.Code § 107.5, simply does not give proper notice to the general public of the types of conduct which are proscribed and I would therefore hold that this statutory scheme is unconstitutionally vague, as applied to the facts of this case.
Accordingly, I respectfully dissent.