*1 in tо the appellants expired reserved the we appellees admitted removal of coal by conclude that no had a reserved inter- appellants longer est in the сoal and that as a consequence were within their in re- appellees-defendants legal rights moving it.
Affirmed.
SPAETH, J., filed a dissenting statement. JACOBS, HOFFMAN, J., former President did Judge, in the consideration or decision of this case. participate SPAETH, Judge dissenting: I think that judgment pleadings improper. could incorporation of the deed have been intended to be a of what was meant description “Pittsburgh Vein” metes and and not as a 5 imposing [describes bounds] fact, In limitation. it seems this was the year likely deed, intent of the drafter of the 1940 for if he had intended limit, a five he could have written it into the impose year deed very easily.
v. Fred ORLOSKY. Pennsylvania, Appellant, COMMONWEALTH of
v. Thaddeus J. DEDO. Superior Pennsylvania. Court of Submitted Oct. April
Decided *2 Johns, Charles W. Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Byrd Brown, R. Pittsburgh, for appеllee Fred Orlosky. John Corbett, Jr., H. Defender, Assistant Public Pitts- burgh, for appellee Thaddeus J. Dedo. CERCONE,
Before President Judge, and WIEAND and HOFFMAN, JJ.
WIEAND, Judge:
This is a appeal Commonwealth from an of the order Court of Common Pleas of Allegheny which dis- County missed conspiracy charges against Fred Orlosky and Thad- deus J. Dedo because of a failure to commence trial within the time of requirements Pa.R.Crim.P. 1100. We affirm.
The procedural of the history cases is important. Com- plaints were 19, 1976, filed on April charging and Orlosky Dedo, with appellees, to commit conspiracy theft by decep- tion. to the According mandate of Pa.R.Crim.P. 1100(a)(2), it wаs that trial on such necessary charges commence on or before 3, 1976, October 1976. On October the Common- wealth filed applications to extend the time for commence- mеnt of trial. These applications were heard before the Honorable Donald E. Ziegler 12,1976. on October The court separate of the two by Commonwealth granted requests faсt, orders, of which directed unaccompanied by findings 120 named defendants “be tried not later than that the 22 April the final order of the court at No. after Court).” 1977 (Superior order involved a
The rеferred to in the court’s appeal principal but related matter. The Commonwealth separate Miller, be against and Dedo to Clarence Orlosky who alleged had also оne Charles Goldblum the implicated bring private had conspiracy. attempted Goldblum prosecution against Miller for The District Attor- perjury. Gold- approve had declined Allegheny County оf ney and the Court Common requested prosecution, blum’s decision. Gold- Attorney’s Pleas had affirmed the District Court. Superior to the thereupon appealed blum argued Judge Ziegler beforе on Octo- ber it should not be commence required and Dedo so as there remained the against long Orlosky of a conviction wit- possibility perjury principal ness. The trial concluded thаt the requested delay would serve the as well as those of the justice, interests parties, and entered the orders recited.1 previously Superior
Goldblum’s
Court was decided on
appeal
which affirmed the
per
curiam order
January
trial court’s order
denying
requested private prosecution.
11,1977.
May
Allocatur was denied
Court on
The record was remanded to the trial сourt on
May
against Orlosky
Trial of the instant criminal action
*4
13,
Dedo was thereafter
for
1977.
September
scheduled
On
29,1977, Dedo filed an
to dismiss because
August
application
his trial had not commenced within 180 days following April
19,
application
1976.
filed a similar
on
Orlosky
September
12,
12,
September
Both
were heard on
applications
judge
1. The trial
did not
then have the benefit of
Court
Shelton,
8,
decisions
in
v.
Pa.
694
Commonwealth
364 A.2d
(1976)
Mayfield,
v.
469 Pa.
603 points the It to the fact that on dismissing charges. order entered, 12, 1976, period whеn the order was the October the had not filing complaints 180 the days following reveal, know, the does not We do not for record expired. could have commenced trial whether the Cоmmonwealth know, however, 16, We do that the before October 1976. time of trial made it for extending unnecessary order the When, on attempt. the Commonwealth to make such an and nullified 12,1977, the trial court reconsidered September the order, grant an order which did not prior it entered to commence trial. opportunity further any that when the trial court deter- argues The Commonwealth its extension order of October improper mined to set aside as 12, 1976, have been at least the given the should prosecution 180 within days four then from the remaining days which to commence trial. more if the persuasive
This would be Common- argument within the extended period wealth had commenced That order of 1976. allowed the trial court’s October later than order commencement of trial “not directed the at No. 120 the final order of the after days Court).” without decid- (Superior Assuming, 1977 April ing, contemplated only appeal that this order the petition but also a for allocatur to Superior Court Court, trial should have commenced within allocatur. This occurred on denying after the order days Trial, therefore, should have commenced Mаy trial was sched- September Unfortunately, when, for 1977 and had not commenced uled 12, 1977,the trial court dismissed the charges. on September the We the Commonwealth’s contention that rejeсt the start of the 120 triggered day period date which on which the record was remanded to day the May This is based Pa.R.Crim.P. argument trial court. of a new 1100(e) following grant which requires trial, thereof shall bе not more the time for commencement has been remanded to the than 120 after the record case, we are not concerned with trial court. In the instant trial; (e) of a new and subsеction granting is not *6 Instead, we have before us an order which the pertinent. (c) trial court entered to subsection of Rule pursuant The terms of are that order determinative of the time within whiсh trial should have been required commenced. It that trial “120 commence within after the final order of the days court” and not within 120 after the record had been remanded to the trial court.
Undеr these circumstances the of additional granting time would have enabled the Commonwealth to avoid both the and also the extended day period limitation granted the order of Octоber 1976. The by trial declined to result and reach such anomalous dismissed did not receive agree. Appellees prompt indictments. We trials, and the them were dis- charges properly missed. disposition appellants’ argu-
Because of our Rule 1100 ment, it is to determine whether the unnecessary Common- wealth should have been to amend the indictment permitted to facts the Court of Common allege demonstrating jurisdiction Pleas of to hear the Allegheny County criminal charges.
The orders of the trial court are affirmed.
CERCONE, Judge, President concurs the result. HOFFMAN, J., statement. concurring files HOFFMAN, Judge, concurring: I charges proрer that dismissal of the because agree failed to trial bring appellant 8,1977, which was the final for trial allowed day court’s extension order of October Therefore, I the issue of whether the would reach Commonwealth failed to show due diligence by seeking until its was no delay principal appellant’s longer subject possible perjury prosecution.