dissenting:
The majority finds the period from June 24, 1980 to July 7, 1980 excludable under rule 1100 and the Commonwealth’s petition to extend therefore timely filed. I disagree and, accordingly, dissent.
The majority agrees with the Commonwealth’s assertion that June 24 through July 7 should be excluded because appellee was on vacation and was thus “unavailable.” I find this conclusion erroneous. The Commonwealth’s argument is based upon Commonwealth v. Smith, 262 Pa.Superior Ct. 258, 896 A.2d 744 (1978). In Smith, the trial date had been listed, and one week before the trial, defendant’s attorney advised the court that he would be unavailable on that date because of vacation. Therefore, the trial was continued to a later date. The court held that defendant’s attorney’s vacation time was excludable. The court acknowledged that the distinction between a delay caused by a continuance and a delay caused by unavailability is often hazy, especially if the defendant requests a continuance because of unavailability.
Here, however, the preliminary hearing date had not been scheduled; rather, the magistrate’s office contacted all of the parties to determine the acceptability of June 24 as the preliminary hearing date. Upon learning that appellee would be on vacation, the magistrate scheduled the preliminary hearing for July 7, a date more convenient for all parties. Therefore, appellee’s unavailability did not disrupt a scheduled hearing date and the delay in the preliminary hearing was in effect a continuance. Because the period of the continuance was less than thirty days, I find none of the time excludable under rule 1100(d)(2).
Although not addressed by the majority, I also find the period of time from April 24 to May 5 not excludable as well. The Commonwealth asserts the excludability of this period because appellee’s allegedly volitional act in refusing to pick up her notice made her unavailable, causing the delay in the preliminary hearing from May 20 to June 2. For excludable periods, the Commonwealth must show both *545defendant’s unavailability and its due diligence in attempting to determine defendant’s whereabouts. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Appellee’s whereabouts, although unknown, could have been determined by due diligence. Appellee lived and worked in Allentown; thus the Commonwealth had means of locating her either at her home or place of employment. While sending a summons via certified mail is a reasonable form of notice, appellee did not in fact receive the notice and the Commonwealth has presented no evidence that appellee was at fault for not receiving it. Therefore, I hesitate to find appellee “unavailable,” and would not exclude April 24 to May 5.
Because under rule 1100 I would not exclude either period discussed by the Commonwealth, I would find its petition to extend untimely and the lower court’s dismissal of the charges correct.