dissenting:
For the following reasons, I dissent. The majority asserts that appellee waived his rights under Rule 1100.. I disagree with their assertion and also with the Commonwealth’s alternative argument.
On September 16,1977, the Commonwealth filed a petition to extend the rúndate. Appellee opposed the petition. An opposition to a petition for an extension of a rúndate can serve in lieu of a motion to dismiss for purposes of avoiding a finding of a waiver. See Commonwealth v. Hughes, 256 Pa.Super. 105, 389 A.2d 623 (1978). In the instant case, the petition was dismissed on the stipulations and statements of counsel; thus, the petition was never argued on the merits. It is clear from the record that all parties, including the court, were proceeding under the assumption that the petition was premature, an assumption that was incorrect. I see no reason why only appellee should be prejudiced when the erroneous assumption was one shared by all the parties, including the lower court judge. For these reasons, I feel that appellee did not waive his Rule 1100 rights.1
The Commonwealth, in the alternative, asserts that a remand is necessary to enable them to show due diligence, contending that the erroneous assumption at the Rule 1100 hearing prevented the introduction of necessary testimony on the record. From a close reading of the appropriate dates, it is apparent that such a remand would serve no purpose because the September 16 petition was not timely presented.
Giving the Commonwealth the benefit of the doubt on all excludable periods, the September 16 petition was still ten days late. Thus, the Commonwealth violated Section C of Rule 1100, precluding any showing of due diligence.
For the foregoing reasons, I feel that the lower court correctly discharged appellee. Accordingly, I dissent.
. Admittedly, the scenario in this case is confusing. Much of the problem was caused by a written waiver of 1100 rights signed by appellee on May 3, 1977. The waiver was deficient in many respects, namely in that it appeared to be indefinite.