dissenting:
I dissent. In my view appellants’ right to a speedy trial, as those rights are defined by Rule 1100 of the Rules of Criminal Procedure and our case law, were violated here, and appellants ought to be discharged.
Rule 1100(c) provides that applications by the Commonwealth to extend the time for trial may be granted “only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Since Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), Rule 1100(c) has been interpreted to require a record showing of due diligence. The Supreme Court stated there:
Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the *62court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.
Id., 469 Pa. at 222, 364 A.2d at 1349-1350. Cf. Commonwealth v. Mines, 282 Pa.Super. 157, 422 A.2d 876 (1980); Commonwealth v. Berry, 271 Pa.Super. 466, 414 A.2d 130 (1979); Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978). Mere assertions of due diligence and allegations of fact do not establish cause for an extension of time under Rule 1100(c). See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978); Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976). Of course, the Commonwealth may obtain the extension it seeks if it presents sufficient evidence at the hearing on the Rule 1100 application. Commonwealth v. Mines, supra; Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978). In our review of the hearing court’s ruling we may consider the evidence presented by the Commonwealth and only so much of the defense evidence which goes uncontradicted. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Mines, supra.
There were two Rule 1100 hearings in this case, one in December, 1977 and another in January, 1978. At the first such hearing the Commonwealth presented extensive evidence of the case backlog in the county and the heavy workload of the three judges who sat during the November criminal sessions. There was little evidence, however, pertaining to the “age” of the cases tried during the November sessions. It would appear that at least one case could have been postponed until the December criminal sessions in order to make room for trial of the instant case. This could have been done without creating a Rule 1100 problem in the other case, because the run date on that case was not until December 5. Furthermore, in that case there was time which was chargeable against the defendant which would have permitted even further extension. In its order granting the first petition for extension of time the court stated the following:
*63Counsel has indicated that the court should make a determination as to the age of each case that was tried before each court, taking the position, apparently, that the only consideration for the scheduling of trials should be the age of the cases. While we do agree that that should be a factor, we must recognize the position of the District Attorney in this area, and that the consideration of other matters enumerated by them should also be considered. Obviously, the severity of the charge, the availability of witnesses, the availability of counsel, whether or not the Defendant is incarcerated, are all factors, among others, that must be considered by the District Attorney in the scheduling of criminal cases.
I do not dispute the correctness of the lower court’s reasoning, there are clearly other factors which must be considered when cases are scheduled for trial. However, the mandate of Rule 1100 is clear insofar as it concerns the time in which a case may be brought to trial. One hundred eighty days is the period fixed by our Supreme Court.1 When there are no problems, such as unavailable witnesses or counsel’s time conflicts, then an extension of time for trial simply because other cases have been scheduled by the District Attorney for trial ahead of the one with Rule 1100 problems is improper. This is all the more true when among those cases tried there is one or more which has no Rule 1100 problem. Furthermore, in a county where the District Attorney has the responsibility not only of scheduling the order in which criminal cases will be tried but also of assigning cases to particular judges, the failure to schedule a case with a Rule 1100 problem in advance of another case lacking such problem cannot reasonably be construed to constitute due diligence on the Commonwealth’s part.
I am fully cognizant of the difficulty which faced the York County court in November of 1977. There were in excess of 170 criminal cases pending at the time and only three judges to hear them. What would have been a difficult situation at any time was made the more so by the *64unexpected absence from the bench during the November criminal sessions of one of the four judges previously scheduled to sit. Nevertheless, Mayfield permits judicial delay only when it could not have been avoided. On this point, Justice Roberts, sitting by designation on this Court, recently wrote:
The court of common pleas held that judicial “delay” is permissible when it results, as is claimed here, from a backlog in the court system. Such a reason, standing alone, however, cannot justify an extension under Rule 1100. This rule was promulgated, in part, as a response to trial delays caused by the existence of case backlogs. See Commonwealth v. Hamilton, [449 Pa. 297, 306, 297 A.2d at 127, 131-32 (1972)]. To now hold that a backlog excuses delay would be contrary to the very objectives of our Rules of Criminal Procedure.
In any event, the court of common pleas did not conclude that the judicial “delay” could not have been “avoided” as required by Mayfield. There is nothing in the opinion of the common pleas court or the record to suggest, for example, that appellant’s case could not have been scheduled for trial ahead of other cases which did not suffer similar Rule 1100 problems. Recognizing that the Commonwealth has the burden of proving by a preponderance of the evidence that the requirements of Rule 1100(c) have been satisfied, Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979), we accordingly must conclude that the judicial “delay” here did not justify the time extension granted the Commonwealth.
Commonwealth v. Crowley, 281 Pa.Super. 26, 30, 421 A.2d 1129, 1131 (1980).2 And see Commonwealth v. Levitt, 287 *65Pa.Super. 115, 429 A.2d 1126 (1981). In this case, in its first order granting the extension of time in which to bring appellants to trial, the lower court stated:
... We do not find the [court’s idle] periods to be out of the ordinary, and as we have indicated, we do not find that the particular cases could have been tried unless other cases that were tried would not have been tried.
I take this to mean that in order to have brought appellants timely to trial, the trial of other cases would have to have been postponed. Postponing appellants trial would not have been error if the cases tried before theirs presented some special scheduling problem, or were more “aged” by Rule 1100 standards. However, to rely merely on the fact that the District Attorney had scheduled one case in place of another without specifically inquiring into the reason for such schedulings, particularly where the age of the case is such an important factor, does not, in my opinion, constitute permissible judicial delay.
There was, however, a second petition for extension of time for trial in this case. If the first Rule 1100 extension was not erroneous the second order granting extension certainly was. The pertinent portion of the court’s order reads:
Other than argument, the record before us is limited to a statement of the Clerk of Courts offered to support the conclusion that this Court had no other time available to handle more cases than were handled during the December term, which was a period of one week.
The issue before the Court, as we see it, is whether the cases were not tried notwithstanding due diligence by the Commonwealth. Focusing on that issue, we do first conclude that the time of this Court was fully occupied with the trial of cases. We will concede that [Defense Counsel] himself was no doubt available for trial of other cases on Thursday and Friday of the one week term, but the Court *66was then dealing with other matters called by the district attorney.
As we understand the law, the district attorney still has the prerogative of presenting cases that he considers appropriate and, therefore, we do not consider the availability of [Defense Counsel] relevant to this issue. Further, we propose to rule on this matter limiting ourselves to whether we were able to handle these additional cases without attempting to interrogate every other judge in this county to see if they could have handled one more case on some theoretical assumption. The district attorney does prepare a trial list which is an administrative device indicating what cases will be heard in what court rooms, handled by what assistant district attorneys.
We will concede that this is not followed religiously, that when cases fold, a matter may be transferred from one court room to another. But, we consider it sound administrative advice which is a great aid to all involved, including counsel for the defendants and their witnesses and we think it sufficiently deals with these Rule 1100’s on the basis that we in this court room could not have handled more, without going further afield.
I believe the court erred in finding due diligence on the part of the Commonwealth. The record is devoid of any evidence pertaining to the case load or trial activity before the other York County judges. Nor is there any indication of the Rule 1100 age of any of the cases actually heard by the judge to whom appellants’ case was assigned, and who incidentally also heard the Rule 1100 petition. Surely this does not constitute the required “record showing” of due diligence on the Commonwealth’s part. To hold so flies directly in the face of Rule 1100 and the reasons for its institution. Furthermore, judicially conceived justifications for granting applications for extension of the time for trial have been disapproved by our case law. See Commonwealth v. Ehredt, supra; Commonwealth v. Berry, supra; Commonwealth v. Miller, 270 Pa.Super. 178, 411 A.2d 238 (1979).
For the reasons set out above I would reverse appellants’ convictions and order them discharged.
. Florida allows only 120 days.
. Crowley involved an appeal from a finding of effective assistance of counsel by the lower court following remand of appellant’s direct appeal by this Court. The remand was necessitated by appellant’s contention that his Rule 1100 rights had been violated and that trial counsel had been ineffective for failing to oppose the Commonwealth’s petition for extension. The court based its finding of effectiveness on the theory that even if he had opposed the petition it would have been granted, because, in its view, the judicial delay which prompted the Commonwealth’s petition was supposedly a *65“permissible delay.” We reversed, holding such judicial delay an improper basis for granting a petition for extension and thus counsel to be ineffective for not opposing the petition. The conviction was reversed and appellant ordered discharged.