No. 62 Harrisburg, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Union County, No. 32, 1978.
Graham C. Showalter, District Attorney, Lewisburg, for appellant.
William F. Donovan, State College, for appellee.
Price, Wieand and Lipez, JJ. Price, J., did not participate in the consideration or decision of this case due to his death.
[ 310 Pa. Super. Page 548]
This is a Commonwealth appeal from an order granting defendant's motion to dismiss the charge under Rule of Criminal Procedure 1100(f). The trial judge concedes in his opinion that his determination is based on "facts" which are not of record, but taken from the briefs of the parties filed in the lower court. The statement in the opinion that the briefs are "not in dispute" as to the facts is incorrect, and even if it were true, the trial judge in ruling on the motion should not have made factual determinations
[ 310 Pa. Super. Page 549]
based on the parties' briefs. Erie Indemnity Company v. Coal Operators Casualty Company, 441 Pa. 261, 265, 272 A.2d 465, 466-67 (1971). Moreover, the Commonwealth's failure to file an answer to defendant's Rule 1100 motion is not an admission of any factual allegations in the motion. Pa.R.Crim.P. 308(a). There is no indication in the record that there has ever been a hearing on defendant's motion. Therefore, we shall vacate the lower court's order, and remand with the direction to hold a hearing, in order to develop a record on which disposition of the motion may be based.*fn1
Order vacated, indictment reinstated, and case remanded for further proceedings. ...