dissenting:
I respectfully dissent.
Rule 1100(c)(1) provides that:
At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for the commencement of trial.1
The issue before this Court is the interpretation of the words “may apply to the court.” The significance of whether appellee did apply to the court in a timely fashion lies in the fact that: “Failure to file a timely extension petition precludes the granting of an extension because the Commonwealth is not permitted to file a petition nunc pro tunc.” Commonwealth v. Bytheway, 290 Pa.Super. 148 at 152, 434 A.2d 173 at 175 (1981).
In Commonwealth v. Shelton, 469 Pa. 8 at 15, 364 A.2d 694 at 697 (1976) the Supreme Court of this Commonwealth used language which appeared to equate the language of Rule 1100(c) — “apply to the court” — with filing.
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 extension ... The trial court relied upon Shelton in holding that the
instant petition — filed, but not presented to the court — was timely.
However, as this Court noted in Commonwealth v. Wharton, 250 Pa.Super. 25 at 30, 378 A.2d 434 at 437 (1979) (Cercone, J.), the filing/apply to the court distinction was not present in Shelton and, consequently, its language should not be interpreted to supply an answer to a question which was not before that court in that case.
*435While the case sub judice does not replicate the factual situation present in Wharton, I conclude that Wharton’s rationale dictates the outcome here. In Wharton the operative facts were the reverse of those before us: the petition was timely presented to the court but not timely filed.2
The unanimous, seven-judge court held:
... the question of timely filing should be decided on whether or not said petition is properly before the lower court prior to the expiration of the mandatory period, not whether or not the petition is docketed in the clerk of court’s office prior to the expiration of the period. It is the court, not the clerk of court, which must act on the petition.
Id.
The trial court opinion, endorsed by the en banc court below, found that Wharton was not relevant here. “The holding of this case [ Wharton] cannot be extended to mean that filing is inadequate to place an application for extension of time before the trial court.”
While I agree with the trial court that “this precise question has not been decided by the appellate courts,” 3 I disagree about the applicability of Wharton to the situation before us.
If all that Wharton had said was that having a petition presented to the court met the requirements of Rule 1100, notwithstanding its tardy filing; then, indeed, it would be possible to consistently hold here that a timely filing, notwithstanding a tardy presentation to the court, also met Rule 1100. In other words, it would be possible then to state that as long as one or the other was timely the Rule 1100 requirements were met.
But that is not where Wharton stops. It goes further and states that the dispositive factor is whether the petition is properly before the court — and distinguishes that from filing with the clerk. Wharton binds us, as I see it, to *436accept that it is crucial that the court receive the petition; because “it is the court, not the clerk of court, which must act on the petition.” Following the rationale of Wharton, we are obliged, in all intellectual integrity, to find that the tardy presentation to the court itself will not suffice.4
* * *
Other considerations lead me to the conclusion that the result dictated by Wharton is correct.
First we have the plain language of the rule. It does not require that the Commonwealth file a petition, but rather it states “the attorney for the Commonwealth may apply to the court for an order extending the time.”
Second, such a practice would be consonant with general pre-trial practice. The comment to the rule in effect at the time of the proceedings under review stated:5
All applications should be submitted to a judge of the court first keeping in theory the practice of rules to show cause subject to modification by local court rule where desirable.
Pa.R.Crim.P. 304.6
A misapprehension of the consequences of this case was presented in the trial court opinion.
In the absence of a contrary holding by an appellate court, particularly in view of the language which the *437courts have used in construing Rule 1100(c), we are unwilling to hold that a petition for extension of time filed on the 180th day is untimely merely because the court did not on the same day issue a rule or set a date for hearing.
That is not what I am stating here. Nor is it what Wharton held. The timeliness of petition to extend is determined by the prosecution’s actions — not by the timing of the court’s response to the petition. It is determinative that the petition is directly before the court in time; while it is not relevant whether or not the court itself acts upon the petition that day.7
One other statement in the trial court opinion, repeated in appellee’s brief, also merits treatment here. The trial court noted that appellant’s motion to dismiss under Rule 1100(f) was also filed and not presented directly to the court. Rule 1100(f) also has the critical language present in Rule 1100(c): “... may apply to the court...” 8 The trial court held that appellant’s motion to dismiss, as well as appellee’s petition to extend, were properly submitted. I disagree.
Appellant’s motion to dismiss, filed but not presented to the court, was not properly submitted. This follows from my conclusion that appellee’s petition was improperly submitted. It would be obviously unjust to have different requirements for submission of Rule 1100 motions depending on whether the moving party was the Commonwealth or the defendant. This is particularly true when the pertinent language of the rule, “may apply to the court,” is the same in subdivisions (c), for the Commonwealth, and (f), for the defendant.
The impropriety, or not, of a motion to dismiss is significant because a criminal defendant can waive his Rule 1100 claim by failing to contest the Commonwealth’s petition to *438extend. Commonwealth v. Garnett, 258 Pa.Super. 115 at 118 n. 6, 392 A.2d 711 at 712 n. 6 (1978).
While appellant did not properly submit his motion to dismiss, he did not waive his claim here. This is because filing a motion to dismiss is not the only method a defendant has to challenge the grant of an extension.
Thus he must either file a motion under Rule 1100(f) or contest the Commonwealth’s petition to extend, so that by one method or the other the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived.
Commonwealth v. Davis, 261 Pa.Super. 204 at 208, 395 A.2d 1388 at 1390 (1978) (emphasis supplied). See also, Commonwealth v. McFadden, 300 Pa.Super. 299 at 303, 446 A.2d 624 at 626 (1982). At the hearing, appellant did contest the petition to extend.
I would vacate judgment of sentence and discharge appellant.
. Two elements of this provision are of interest here: first, that the application must be made within a certain time frame — prior to the expiration of the Rule 1100 period—Commonwealth v. Morgan, 484 Pa. 117 at 126, 398 A.2d 972 at 976 (1979); second, that the application must be made to the court.
. Here, the petition was timely filed but not timely presented to the court.
. See Commonwealth v. Ryan, 306 Pa.Super. 159 at 166, 452 A.2d 264 at 267 (1982) (Popovich, J.).
. A reluctance to activate the extreme sanction of a Rule 1100 violation — a reversal of judgment of sentence and discharge — has led, on occasion, to strained interpretations of its requirements. Rather than engage in such an exercise, I would choose here to follow the reasoning of Wharton as applied to this situation.
We note that dissatisfaction has been expressed with this rigid rule and the technical points which its proper enforcement obliges us to rely upon. Alternatives to the rule were proposed by Judge Popovich in Commonwealth v. Harris, 323 Pa.Super. 102, at 113 n. 4, 470 A.2d 150, at 156 n. 4 (1983).
. With only punctuation changes, this comment is now part of Pa.R.Crim.P. 306.
. The expressly non-comprehensive list of such applications does not specify Rule 1100 motions. The point here is that the common custom is to present pre-trial motions to the court and Wharton merely enforces the traditional practice.
The local court rules, referred to in the comment, do not modify this procedure. Lehigh County R. 206(a).
. I note, however, that this same misapprehension of the thrust of Wharton was given in the dissenting opinion in Commonwealth v. Groarke, 269 Pa.Super. 243 at 247, 409 A.2d 870 at 872 (1979).
. “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated.” Pa.R.Crim.P. 1100(f).