Dissenting Opinion by
Hoffman, J.:The sole question in this appeal is whether the lower court was justified in quashing the indictments for failure to afford the defendant a reasonable opportunity to challenge the array of the Grand Jury.
On June 17, 1971, the defendant Irving Wasserman was arrested on four counts of receiving stolen goods. A preliminary hearing was held on August 13, 1971, and the defendant was bound over to the Grand Jury. Nearly two years later, the Commonwealth, on June 15, 1973, filed an ex parte petition asking for leave to indict the defendant on the four counts of receiving stolen goods. Commonwealth’s petition was granted the same day and neither the defendant nor his counsel received any notice of the court’s ruling. On August 1, 1973, defendant’s motion to quash said indictments was heard, and the indictments were quashed. This appeal taken by the Commonwealth is now before this Court.
Although the defendant was bound over to a Grand Jury in 1971, bills of indictment were not submitted until nearly two years later. It has long been the law that a defendant is entitled to reasonable notice where the bill is submitted at a term subsequent to the original term at which the bill was to be laid before the Grand Jury. Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972); Commonwealth v. Bruno, 203 Pa. Superior Ct. 541, 546-547, 201 A.2d 4.34 (1964). As we said in Commonwealth v. Rosenfield, 220 Pa. *410Superior Ct. 105, 108, 283 A.2d 870 (1971) : "In Commonwealth v. Johnson, 440 Pa. 342 . . . the Supreme Court clearly delineated the scope of Collemacine: ‘We held in Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968), that a defendant is entitled to notice of presentment of his case to the grand jury if the presentment is to a grand jury other than the next term after the defendant’s preliminary hearing. The purpose of this rule is to enable the defendant to avail himself of his right to challenge the array of grand jurors.’ 440 Pa. at 353, 269 A.2d at 757-758. As the appellant in the instant case was not indicted by the grand jury sitting in the next term after his preliminary hearing, and he never received notice which subsequent grand jury would indict him, Johnson requires that this Court quash the indictments returned.”
While it is true that the delay was caused by a number of continuances some of which were prompted by the defendant, an examination of the record reveals that the Commonwealth was in a position, previous to 1973, to indict the defendant with proper notice to the defendant and his counsel. At no time during the two intervening years did the Commonwealth take any action to indict the defendant though the docket entries reveal occasions where the defendant, his counsel and an assistant district attorney were present in Court prior to the date on which the Commonwealth submitted its ex parte Petition.
I do not agree with the Commonwealth’s position that the defendant was lawfully indicted under the procedure provided by Pa. R. Crim. P. 224, which provides : “When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the defendant cannot be found in the Commonwealth or that the statute of limitations will run prior to the time when a preliminary hearing can be held or that a *411preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for
the Commonwealth to present a bill of indictment to the grand jury without a preliminary hearing.” The defendant was afforded a preliminary hearing. Rule 224 was not designed to encompass a situation where the defendant has obtained a preliminary hearing and is awaiting presentment to a Grand Jury.
In the final analysis, no reason is given by the Commonwealth either for the two-year delay in seeking indictments, or for its failure to inform the defendant or his attorney that it was submitting a Petition for leave to indict the defendant nearly two years after his arrest (only a day before the statute of limitations was to expire). The order of the lower court was properly entered as a violation of the defendant’s constitutional rights of notice under the due process clause of the Constitution.
The order should be affirmed.
Jacobs and Spaeth, JJ., join in this dissenting opinion.