*2 PRICE, Bеfore WATKINS, CAVANAUGH and JJ. WATKINS, Judge:
This is an appeal from the judgment of sentence of the Court of Common Pleas of Chester County involves defendant-appellant’s apрeal from his conviction for rob- theft bery, unlawful by taking, theft stolen by receiving property, and criminal conspiracy.
A criminal complaint charging with defendant various offenses was filed against him on 1977. The January offenses had been committed on 12,1977. January Time commencement of trial pursuant to Pa. Rule of Criminal Procеdure 1100 expired on July case Defendant’s was scheduled for trial on 1977. When defendant’s case was called it was passed at the request of the Common- weаlth because the Commonwealth desired to the de- try fendant at the same time as a co-defendant whose attorney was unavailable for trial at that dаte. Although Com- monwealth moved for a continuance of the case its request was denied the lower court and by the court directed the Court Administrator to call the case for trial as soon as counsel for both defendants were available. The Court Administrator, who the court below acknowledged worked for and was supervised the court and not the district *3 office, attorney’s failed to call the case again during the May Term, even though counsel for both defendаnts and the Commonwealth were prepared proceed. to
The case was then June, listed for the 1977 Criminal Term as case Number 61. It was not reached during thаt trial term the court and was re-scheduled for the August Term which would be outside the 180 day which was period expire July 7,1977
On the July Commonwealth filed a timely petition seeking to extend the time in which to the bring defendant to trial. A thereon hearing was held on August 23, 1977 after which the court granted the Commonwealth’s petition and denied the defendant’s motion to dismiss the charges failure to with Rule comply 1100. The defendant was then tried and on August 1977 was found of guilty robbery, theft and receiving stolen He property. then rais- appealed ing, alia, inter the as question to whether the court below committed reversible error when it the granted Common- wealth’s petition to extend thе time which to bring the defendant to trial.
Because the Commonwealth’s petition to extend the time in which to the bring defendant to trial was timely the only
67 question on this is whethеr the appeal Commonwealth had failed to diligence” exercise “due in its the attempt bring Pa. Rule 1100(c). Criminal Procedure defendant to trial. Under the facts of the instant case it is the apparent prepared Commonwealth was the try defendant at both June Sessions of the 1977 court schedule. Either one of these times would have been within period. day The reason the case was not tried in the May, 1977 session of court was because of the failure Court Administrator to recall defendant’s case after it had been passed at the Commonwealth’s so that request the defendant could be tried awith co-defendant. The lowеr court denied the Commonwealth’s motions for a continuance and had directed the Court Administrator to recall the case. The defendant’s case wаs not tried in June of 1977 because the court never reached it. The court below in its explained opinion that the district office of attorney’s County Chester has no control over the case list.
Judicial or delay scheduling an extension may justify of time within which to commence calendaring trial. The cases is within the ultimatеly power and responsibility of trial court. Commonwealth Mayfield, A.2d 1345 (1976).
Because the court administrator is under the direction of the court and because the сourt is prosecutorial not a arm of the district attorney’s office but impartial an entity established to administer justice evenhandedly we hold that in the instant case the court administrator’s failure to recall the defendant’s case cannot be attributed to the Common wealth but must be attributed to the court. Likewise the *4 сourt’s failure to reach the defendant’s case the during term ensuing of court cannot be attributed to lack of any due diligence on part of the Commonwealth. Because the Commonwealth was indeed to prepared proceed trial both June, and 1977 court sessions and because the scheduling of defеndant’s case was entirely within the court, control of the we hold that the Common wealth cannot be found have failed to exercise “due diligence” Thus, in prоceeding to trial. the court below did timely petition.
not err in Commonwealth’s granting The raised the defendant are devoid of merit. by other issues of sentence аffirmed.
Judgment
PRICE, J.,
dissenting opinion.
files a
PRICE,
dissenting:
Judge,
discharged.
I believe the
must be
Pa.R.Crim.P.
appellant
it is now well-set-
days,
1100 mandates trial within 180
and
tled
of time for commencement of trial
that an extension
be
the Commonwealth
may only
granted upon showing by
not be had
diligence
that
its own due
could
despite
8,
Shelton, 469 Pa.
within that time limit. Commonweаlth v.
(1976).
extend? correct,
MR. JOYNER: That get Wait until I that. This is your 7th, is cоrrect? application filed that July correct, Honor. MR. JOYNER: That is Your Hal- Now I notice here Mrs. and a rule was petition granted trecht 20th filed a July hearing that. had to do with the Apparently only correct? date on the is that application, Commonwealth’s Yes, application sir. We filed an MRS. HALTRECHT: event, as But, hearing for dismissаl. date any *5 I originally scheduled was for a time when was to be on it, vacation. than it reassign Rather because is one of those cases with all of testimony argument, and that sort I had asked to have thing, it moved ahead. That correct- ed rule was it. merely change right. COURT: All Now have attached to it you dismissal, an application for so that is before apparently us also.
MRS. HALTRECHT: Yes. correct, MR. JOYNER: That’s THE COURT: Now is John E. Lewis in the Courtroom? MRS. HALTRECHT: He He certainly right is. the front row. All right. Mr. Joyner? Honor, pursuant
MR. JOYNER: Your to that applica- tion, and the myself the Defendant E. attorney John Lewis have entered into a stipulation. And that stipula- tion would be that basically original complaint was filed on January and 180 days expired approximately 7/12/77.
THE COURT: 7/12/77? correct,
MR. JOYNER: That is Your Honor. And that was on preliminary hearing had this matter January 24th, 1977, and that the Defendant wаs and arraigned 11th, waived that on March arraignment this matter was listed for trial criminal term as number ten and that case was on the passed of request the Commonwealth due to the fact that Mr. Gavin was in a murder trial and we requested Judge pass Pitt to this case until he was available so that we could try both together Defendants at that time. That case was passed and never called. The Criminal Trial List ten, went past number and at one in time I point believe Mr. Gavin and Mrs. were Haltrecht available but it was never called the Court Administrator or Pitt. Judge
And, Mrs. Haltrecht has a of the copy transcript of that request at the call the list. *6 the June It was listed again
MR. JOYNER: trial term it was not term, and оn that criminal reached. the number there? Do know you COURT: it was that. I believe I don’t have
MR. JOYNER: list, in the of— neighborhood somewhere further No. 61. HALTRECHT: MRS. Sixty-one,
MR. JOYNER: August is listed on the And the case MR. JOYNER: trial term. further by way All right. Anything
stipulation? No, basically Your Honor. And that
MR. JOYNER: case. Commonwealth’s due diligence by any The does not establish simply above does not meet the certainly known proof, measure of the Commonwealth. placed upon standard of the burden “second is no longer permitted the Commonwealth Since and order bite”, I of sentence judgment would vacate appellant discharged.
429 A.2d CO., INC., LUMBER NARROWSBURG HOPKINS, Hopkins, his Jr. and Eleanor William
wife, Appellants. Superior Pennsylvania. Court of March 1980.
Submitted 15, Filed