concurring:
While I agree with the result reached in the lead opinion, my reasons for reaching that result differ somewhat from the analysis therein. I note first that the Commonwealth argues that, by failing to object on February 5 to the continuance to March 27, appellant waived Rule 1100 until March 27. The lead opinion’s response to this argument is that there could be no waiver of an extension of the Rule 1100 period because no petition for extension was under consideration. This response would seem to be a non sequitur since the Commonwealth is arguing not that appellant waived Rule 1100 by failing to object to a requested extension via a Rule 1100 petition, but that waiver occurred because appellant failed to object to a continuance that *399scheduled a trial date beyond the Rule 1100 period.1 If the Commonwealth were correct in its contention, it would then be completely irrelevant that when an extension was requested by a petition filed on February 10 appellant objected to it. However, I agree that the Commonwealth’s argument does lack merit.
It is certainly true that, if a defendant or his counsel agrees to a continuance where trial is scheduled beyond the Rule 1100 period, the defendant may not thereafter complain that the rule was violated. Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). However, as a general principle, this type of waiver only applies in cases in which the defendant (or his counsel) actively agreed to a late trial date. Commonwealth v. Lovera, 248 Pa.Super. 439, 441, 375 A.2d 178, 179 (1977) (Spaeth, J.) (no waiver where there was no evidence that appellant made any statements or otherwise indicated that he accepted the delay).
An exception to this general principle can be found in the case of Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981), upon which the Commonwealth relies. In Brown, the court found a waiver of Rule 1100 where the defendant and his counsel sat silently in open court and listened to the judge announce a trial date beyond the last day for trial under Rule 1100. The Commonwealth fails to note, however, the special circumstances involved in that case emphasized by the Brown court in explaining its decision. Of particular importance to that court was the fact that the defendant understood the nature and scope of his rights under Rule 1100, as well as the consequences of waiving these rights, as he had on an earlier occasion expressly and validly waived these rights. The Brown court further noted that the defendant was not prepared to proceed to *400trial during the Rule 1100 period and that the trial date was set solely for the defendant’s benefit.
None of the circumstances emphasized in Brown is of record in the case sub judice.2 There is no indication on record that appellant was even present when the continuance was granted and the trial date set let alone that he and his counsel sat in silence while the trial date was announced. There is also no reason from the record to believe that appellant was fully aware of his Rule 1100 rights or that he was not prepared to proceed to trial. The record does demonstrate, however, that unlike Brown, the continuance was granted solely for the Commonwealth’s benefit. Thus, I find Brown to be clearly distinguishable from the case at bar and, accordingly, conclude that the Commonwealth’s claim of waiver lacks merit.
Secondly, I believe the lead opinion and the dissent are essentially debating a question which, on the state of the record, this court cannot answer. They differ over whether the Commonwealth at the March 18 hearing, proved due diligence. However, as the lead opinion itself points out, the hearing judge made no findings, one way or the other, regarding due diligence. Instead, the record clearly shows that his order was based solely on the finding that the Rule 1100 period had already been extended on February 5. Since we, as an appellate court, cannot make factual findings regarding due diligence and since we are without the benefit of such findings by the hearing judge, it is impossible for us to conclude, one way or the other, whether due diligence was proved.
Under such circumstance, I believe the proper inquiry becomes whether or not the evidence produced by the Commonwealth at the March 18 hearing was sufficient to *401prove due diligence. In other words, looking at the evidence in the light most favorable to the Commonwealth, would it support a finding of due diligence. See Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). If we were to find the evidence to have been sufficient, I would then remand the case for a new Rule 1100 hearing.3 If, however, we were to find the evidence to have been insufficient, it would be improper to remand the case simply to give the Commonwealth a second opportunity to prove due diligence and I would simply reverse the judgment of sentence and discharge the appellant.
Instantly, I find that the analysis of the lead opinion, although framed in terms of whether or not the Commonwealth’s evidence proved due diligence instead of in terms of the sufficiency of that evidence, nevertheless demonstrates that the evidence was, in fact, insufficient to prove due diligence. Therefore, I agree with President Judge Spaeth that the judgment of sentence should be reversed and appellant discharged.
. While it is clear that a defendant may waive a Rule 1100 claim by failing to contest a petition to extend, see Commonwealth v. Yancey, 301 Pa.Super. 427, 447 A.2d 1041 (1982), that is not the type of waiver alleged by the Commonwealth in this case.
. The record before us is, of course, incomplete since, as noted in the lead opinion, no transcript of the February 5 proceeding was made. However, the case of Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 precludes us from remanding the case for an evidentiary hearing.
. I do not believe that such a remand would be precluded by Commonwealth v. Donaldson, supra. Unlike Donaldson, in which we held that, since it was the Commonwealth’s burden to construct a recorded hearing, we would not give the Commonwealth a second opportunity to do so by remanding the case, there would be no reason to penalize the Commonwealth over a procedure of which it had no control (the making of findings regarding due diligence). Cf. Commonwealth v. Spaulding, 275 Pa.Super. 261, 418 A.2d 712 (1980) (where suppression court fails to make findings of fact and conclusions of law, a new suppression hearing is required).