J. A14006/14

* Retired Senior Judge assigned to the Superior Court

. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF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

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BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURG ER,* 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 Departme nt of
Trans portation (“PennDOT”) regulations, 75 Pa.C.S.A. § 4107 (b)(2). We affirm. On July 9, 2011, Officer Jacob Clevenger was on routi ne patrol when he observed appellant’s vehicle with dark sun screening o n the vehicle windows. (Notes of testimony, 2/1/12 at 6.) Officer C levenger effectuated a traffic stop and measured the light transmittance in t he glass using a self-calibrating light meter. ( Id. at 7.) According to Officer Clevenger, appellant’s windows had a light meter reading of onl y 13%, and the legalJ. A14006/14

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minimum as defined by PennDOT regulations is 70%. ( Id. ) Officer Clevenger advised appellant that he was in vio lation of 67 Pa.Code § 175.67(d)(4), and issued a “5

- day card,” directing him to remove all tint from the windows within five days. ( Id. at 6, 9-10.) Officer Clevenger did not receive the card back within five days, and after b eing informed that appellant did not intend to remove the tint, he issue d 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 t he two above-mentioned summary offenses, and following a tri al de novo , the
convictions wer e affirmed. The trial court disagreed with appellant ’s argument that the charges must be dismissed because he shoul d have been cited under 75 Pa.C.S.A. § 4524(e)(1), which specifical ly governs window tinting, rather than under the “catch

- all” provision of 75 Pa.C.S.A. § 4107(b)(2). On May 15, 2013, the trial court foun d appellant guilty of both charges and imposed an aggregate fine of $525. O n 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, 2 013, 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 filedJ. A14006/14

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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 p rior order of May 15, 2013. Appellant has raised the following issue for this court’ s review:
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)? Appellant’s brief at 4 (capitalization omitted). Because ap pellant’s issue presents a pure question of law, our 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). Section 4524 of the Vehicle Code, “Windshield obstruction s and

w ipers,” provides, in relevant part:

(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 While it appears that appellant’s Rule 1925( b) statement was untimely filed, because the trial court accepted the late stateme nt and addressed appellant’s substantive issues, we will not find waiver. Commonwealth v. Rodriguez , 81 A.3d 103, 105 n.2 (Pa.Super. 2013), appeal denied , 91 A.3d 1238 (Pa. 2014).J. A14006/14

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75 Pa.C.S.A. § 4524(e)(1). At trial, appellant pre sented testimony that a person would be able to see the inside of his vehicle through the tinted windows. However, appellant was not charged with vio lating Section 4524(e)(1), he was charged with violating Secti on 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. 75 Pa.C.S.A. § 4107(b)(2). Appellant’s citation for violating Section 4107(b)(2) was based on his violation of the Pe nnDOT regulation at 67 Pa.Code § 175.67(d)(4), concerning sun screening m aterial:

§ 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 . . . . SeeJ. A14006/14

- 5 - 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 undispu ted that the PennDOT regulations for appellant’s particular vehicle require 70% light
transmittance. 2 Appellant argues that the statutory provision at Secti on 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 PennDO T regulation are in conflict, and statutes always supersede administrative reg ulations. See Commonwealth v. Kerstetter , 62 A.3d 1065, 1069 (Pa.Cmwlth. 2013), affirmed , 94 A.3d 991 (Pa. 2014) (“It is axiomatic that a statu te is the law and trumps an administrative agency’s regulations.”), citing Joyce Outdoor Adver., LLC v. Dep’t of Transp. , 49 A.3d 518, 524 (Pa.Cmwlth. 2012). However, “This Court has held an ‘administrative agency’ s interpretation of its own regulations is controlling unless the interpretat ion is plainly

2 Appellant testified that his sun screening allows 20% li ght transmittance. (Notes of testimony, 2/1/12 at 16.) This would still b e well below the 70% standard.J. A14006/14

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erroneous or inconsistent with the statute under which it is promulgated.’” Id. , quoting Joyce Outdoor Adver., LLC , supra . Section 4103(a) of the Vehicle Code grants PennDOT au thority to promulgate vehicle equipment standards: “The departmen t shall promulgate vehicle equipment standards for vehicles, equ ipment and devices required under this part. To the maximum exte nt possible, consistent with safety, the standards shall be expressed in terms of minimum acceptable performance levels, measured agains t objective testing parameters.” 75 Pa.C.S.A. § 4103(a). 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 id entical. Both prohibit sun screening devices or other material which does not p ermit a person to see or view the inside of the vehicle. The cases reli ed 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 Educa tion regulations in their respective definitions of “compulsory school age.” Th e departmental regulations defined “compulsory school age,” as, inter alia , children enrolled in grades above k indergarten; while the Code’s compulsory school attendance provisions applied to any student enrolled i n public school, regardless of whether they were enrolled in kindergar ten. The appellant inJ. A14006/14

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Kerstetter

relied on the Department regulations, arguing that because her children were only enrolled in kindergarten, they we re not subject to the compulsory school attendance law. The Commonwealth Cou rt disagreed, finding that the Department’s regulations conflicted with the Code’s definition of “compulsory school age,” which took precedence over any 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 Pub lic Utility Commission (“PUC”), as wel l as a regulation governing late payments of utilit y bills set forth in the Pennsylvania Code. Both these provision s were in clear conflict with the statute governing post-judgment interest, whi ch 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 Legislatur e, and are not “statutes” under Pennsylvania law. Id. at 718. Therefore, they cannot

su persede 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. Bo th the statute and the regulation prohibit driving with sun screening material which does not permit a person to see inside the vehicle. PennDOT then implementedJ. A14006/14

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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 permissi ble light transmittance thresholds, police would have no objective testing parameters to determine whether a vehicle’s sun screening was in violation of the law. Finally, appellant also cites this court’s decision in Commonwealth v. Brubaker , 5 A.3d 261 (Pa.Super. 2010), which is wholly inappo site. In Brubaker , the appellant was stopped and charged with violating Section 4524(e)(1). Id. at 262. However, at trial, the investigating office r conceded that he could, in fact, see into the appellan t’s vehicle even though there was sun screening material present on the subject w indows. 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 wi ndow tint meter to measure the percentage of light transmitted through th e glass, and only 36.3% of light was passing through the appellant’s fro nt passenger side window, well below the 70% threshold. Id. at 264. However, appellant was not charged with violating Section 4107(b)(2), and Se ction 4524(e)(1) does not refer to the 70% light transmittance standard. Th e terms of 67 Pa.Code § 175.67(d)(4) could not be utilized to sustain a convi ction under Section 4524(e)(1). Id. This court found that given the officer’s testimonyJ. A14006/14

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that he could, in fact, see into the vehicle, the evide nce was insufficient to sustain a conviction for violating Section 4524(e)(1). Obviously, our holding in Brubaker does not inure to appellant’s benefit, where appellant was charged with violating Section 4107(b)(2), making it unlawful to operate a motor vehicle in vio lation of PennDOT regulations, which would include the 70% light trans mittance 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 do es 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