No. 1303 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County at Nos. 1261-1265 of 1977.
W. Hamlin Neely, Allentown, for appellant.
James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.
Cavanaugh, Brosky and Popovich, JJ. Brosky, J., filed dissenting opinion.
[ 335 Pa. Super. Page 428]
This appeal comes to us from a judgment of sentence imposed upon appellant, Jeffrey Kurtz, after his conviction in a non-jury trial in connection with violations of the Controlled Substance Act, 35 P.S. §§ 780-101, et seq., and
[ 335 Pa. Super. Page 429]
criminal conspiracy. Appellant's sole contention on appeal is that the Commonwealth violated his constitutional right to a speedy trial under Pa.R.Crim.P. 1100, thereby requiring that his convictions be dismissed. Specifically, Kurtz alleges that the Commonwealth failed to timely file its petition to extend under Rule 1100, because the Commonwealth's Rule 1100 Petition and Rule to Show Cause Why the Time for Commencement of Trial Should Not be Extended was filed with the clerk of courts but was not presented to the court before the run date. We disagree and therefore affirm.
The pertinent and undisputed facts are as follows: Two of the charges which are relevant to this appeal had a Rule 1100 expiration date of January 31, 1978. On that date the Commonwealth filed with the Clerk of the Court of Common Pleas in Lehigh County, a Petition for an Extension of Time to Commence Trial pursuant to Pa.R.Crim.P. 1100. The clerk docketed the petition upon receipt. On the same day appellant and his counsel were mailed copies of the Commonwealth's petition. On February 14, 1978, the Commonwealth's petition was presented to the lower court, who in turn issued a rule to show cause, returnable on March 6, 1978. On February 15, 1978, appellant's counsel filed a Motion to Dismiss pursuant to Rule 1100(f), alleging that the Commonwealth failed to comply with Rule 1100(c). On March 9th and 10th, 1978, the Commonwealth's and appellant's respective petitions were heard simultaneously with those of several co-defendant's.*fn1 The court below ruled that the Commonwealth was not required to apply directly to the court for an extension of time under Rule 1100. The court further concluded that the Commonwealth need only file its Rule 1100 petition with the clerk of the court within the 180 day period in order to satisfy the requirements of Rule 1100(c) and since the Commonwealth had complied with this Rule, appellant's Motion to Dismiss was denied and the Commonwealth's request for an extension of time
[ 335 Pa. Super. Page 430]
was granted. Subsequently, appellant was found guilty. Post-verdict motions were timely filed and denied and sentencing followed. This appeal followed.
The precise issue we must consider is whether the filing of a Rule 1100 motion with the clerk of courts constitutes a timely application to the court within the meaning of Rule 1100.*fn2
In Commonwealth v. Shelton, 469 Pa. 8, at 15, 364 A.2d 694, at 697 (1976) our Supreme Court stated:
The Commonwealth may not seek an extension pursuant to Section (c) of the Rule  nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting an extension. Commonwealth v. O'Shea, supra [465 Pa.] at 498 n. 9, 350 A.2d  at 875 n. 9 ; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). Whether an application for extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant to Section (d) of the Rule. If the time so computed exceeds the mandatory period of the Rule or, in cases where an extension or extensions have been properly granted, exceeds the mandatory period set forth in the order granting the last extension, then the application is untimely. (Emphasis added).
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We agree with the court below in its reliance upon Shelton and its progeny in its conclusion that the language of Rule 1100(c) "apply to the court," means to file an application with the clerk of the court. Furthermore, although the exact issue in the instant appeal was not before the court in Shelton, supra, the Supreme Court did state that the Commonwealth's obligation was to file its request for an extension within the mandatory time period, not that the Commonwealth must actually have its application before the court. See also, Official Comment to Rule 1100.
The appellant contends that Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977) is dispositive of the issue in the case at bar. We disagree.
In Wharton, the Commonwealth submitted a Rule 1100 petition on the last day of the mandatory period. The application was not docketed in the lower court prior to the expiration of this period, however, the court did act on the application by setting a hearing date. Our Court en banc held that "Even though the application was not docketed, and the order granting the extension was not made until the following day, we find that the Commonwealth properly complied with the rule and that the Commonwealth ...