dissenting.
I dissent and would affirm on the basis of the Memorandum Opinion filed by the Superior Court of Pennsylvania and which is attached hereto.
APPENDIX
Commonwealth of Pennsylvania, Appellant v. Edward Francis Browne, Jr.
In the Superior Court of Pennsylvania
Philadelphia Office
No. 03516 Philadelphia 1987
Nov. 17, 1988.
Appeal from the Order of the Court of Common Pleas, Lancaster County, Criminal Division, at No. 1331 of 1987.
BEFORE: CAVANAUGH, BROSKY, and MONTEMURO, JJ.MEMORANDUM:
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Lancaster County granting appellee’s motion to dismiss the charge of driving under the influence of alcohol, pursuant to Pa.R.Crim.P. 1100.
The Commonwealth contends that the trial court erred in denying its petition for extension of time for commencing trial as the District Attorney exercised “due diligence.” The Commonwealth asserts that appellee’s trial did not commence within the period proscribed under Pa.R.Crim.P. 1100 because of a local rule of court regarding the scheduling of arraignments and court dates.
*93The trial court held for appellee. We, however, disagree and now, respectfully reverse the trial court’s decision.
Appellee was charged, on April 5, 1987, with Driving Under the Influence of Alcohol occurring April 4, 1987. This was filed April 6, 1987 with the issuing authority. On April 21, 1987, the Complaint was sent to appellee by certified mail.
The initial date set by the district justice for the preliminary hearing was June 17, 1987. Appellee requested a continuance and a new preliminary hearing date was set for July 1, 1987. No attorney for the Commonwealth entered an appearance in the proceedings at the district justice level, nor was an attorney for the Commonwealth present at the July 1st preliminary hearing.
The district justice, finding a prima facie case, ordered the matter bound over to the court of common pleas. After the preliminary hearing, the district justice prepared and served on appellee a “Notice of Arraignment”, as is the practice in Lancaster County. The Notice of Arraignment indicated that appellee would be arraigned on September 30, 1987.
The relevant papers were received and filed by the Clerk of Courts on July 8, 1987. Among the papers was the Notice of Arraignment, dated July 1, 1987. The District Attorney’s Office was shown to have received a copy of the Notice of Arraignment.
The judicial district comprised of Lancaster County employs a term system of criminal trials consisting of six terms of court each being two weeks in duration. The judicial district also employs a system of six corresponding dates of “arraignment court”. There was a term of court commencing on September 8, 1987, whose corresponding “arraignment court” date was July 29, 1987. The next term of court commenced on November 9, 1987, and had as its corresponding arraignment date, September 30, 1987. Thus, because appellee’s arraignment was set for September 30, 1987, his trial could not have commenced prior to *94November 9, 1987. The 180 day period for commencing trial under Pa.R.Crim.P. 1100, excluding any delay attributed to appellee, would have expired on October 18,1987, or between the two terms of Court.
On August 31, 1987 the Commonwealth petitioned for an extension of time under Rule 1100. Appellee filed an answer to said petition and a hearing was scheduled for October 5, 1987, but was continued to November 2, 1987. The Petition for Extension of Time was denied, and on November 23, 1987 appellee filed a Motion to Dismiss under Rule 1100, which was granted by the trial court. The Commonwealth now appeals.
Under Pa.R.Crim.P. 1100(c)(3), the Commonwealth is entitled to an extension of time within which to commence trial if the trial cannot be commenced within the prescribed 180 day period, despite due diligence by the Commonwealth and, if the delay is due to the Court’s inability to try the defendant, within the prescribed period. It is the Commonwealth’s burden to prove prosecutorial due diligence by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1981). The standard of due diligence demands that the Commonwealth make a reasonable effort, not that every conceivable effort be made. Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). Furthermore, the test for determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983).
Instantly, it was the district justice who set the date for the arraignment. While the Commonwealth received notice of the arraignment date, no one from the Commonwealth was even present when that date was selected. It is unclear from the record exactly how the district justice chose the arraignment date that it did; however, our concern here is with the Commonwealth’s due diligence.
In Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986), the court did not hold the Commonwealth responsible for a delay caused by the district justice’s *95failure to timely file the necessary papers with the Clerk of Courts. However, it must be noted that in Monosky, there was no proof that the Commonwealth had knowledge of or took part in the case. Instantly, the Commonwealth was made aware of the charges and the date of the arraignment some two to three weeks prior to the end of the “arraignment court” session ending on July 29, 1987. Thus, we must decide the extent of the Commonwealth’s duty to track incoming cases for potential problems such as this and fashion an appropriate remedy.
In our analysis, we find no cases to be directly on point, especially in view of the particular system for trials employed by Lancaster County. Therefore, we will look for guidance to somewhat analogous situations. In Commonwealth v. Colon, supra, the failure of the warrant service unit to serve a bench warrant on the defendant, resulting in defendant’s failure to appear for trial, did not reflect a lack of due diligence on the part of the Commonwealth.
Similarly, in Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983), the failure of the Commonwealth to attempt to have the case relisted for trial between the date of the administrative error on the part of the Trial Coordinator and the extension deadline, was not a lack of due diligence by the Commonwealth.
And, in Commonwealth v. Lewis, 287 Pa.Super. 64, 429 A.2d 721 (1981), the Commonwealth did not fail to act with due diligence where the court administrator failed to recall the case and rescheduling resulted in a trial date beyond the run date. Thus, in all of these cases it was the failure on the part of one of the elements of the “system”, other than the District Attorney’s office, which caused the delay. Consequently, the District Attorney’s office was not held to be responsible for these other agents, nor was it penalized for their actions.
The case which we find to be most closely analogous, however, is Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983). There, the Commonwealth petitioned for an extension under Rule 1100 alleging that, despite due *96diligence, the Commonwealth would be unable to try the defendant within the prescribed period because the trial list for the June term was such that the case could not be scheduled. The petition requested that the time be extended through the commencement of the next criminal trial term which was the following September 17th, beyond the Rule 1100 rúndate. The court in Lamb began its analysis by quoting from Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).
[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the due diligence of the prosecution, and (2) the certification that the trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the cause of the court delay and reason why the delay cannot be avoided. Id., 469 Pa. at 222, 364 A.2d at 1349-1350.
Commonwealth v. Lamb, supra, 309 Pa.Superior Ct. at 422, 455 A.2d at 682. In concluding that the Commonwealth’s petition was properly granted, the Court stated:
We believe that the Commonwealth adequately met its burden of proving due diligence by: (1) filing the petition to extend the time within which to commence trial well within the 180 day period; (2) entering into the stipulation with counsel for appellant that each of the criminal cases that were tried in the May and June 1979 terms of criminal court, the last terms of criminal court before the term commencing September 17, 1979, had Rule 1100 rundates which would have expired prior to the rúndate in the instant case; and (3) representing to the court that the Commonwealth was able to go to trial prior to the expiration of the 180 day period but was unable to do so by reason of the unavailability of any criminal trial terms prior to the expiration of the rúndate. The due diligence of the Commonwealth is implicit in the text of the stipulation which demonstrates that the instant case simply could not have been scheduled any earlier than the next *97available criminal trial to commence in September, without delaying other cases, all of which had earlier Rule 1100 rundates. We further believe that the nature of this stipulation, together with the action of the court in taking judicial notice of the criminal trial calendar in a one judge county, made sufficiently clear both the cause of the trial delay as well as the reason why the delay could not be avoided in a fashion as to satisfy the Mayfield test.
Id., 309 Pa.Superior Ct. at 423-424, 455 A.2d at 683. Instantly, while we have a timely petition from the Commonwealth, we lack a stipulation as was made in Lamb. We, however, do not find the lack of a stipulation to be fatal to our analogy. Here, there is absolutely no dispute that, given the September 30th arraignment date, there was no possibility that appellee’s trial could have been held before the November trial term. Even the trial court stated that it was simply a matter of changing the arraignment date. (Trial Court Opinion at 3). However, as we discussed earlier, it was the district justice who scheduled the arraignment date. Even though the Commonwealth was sent notice of the date of the September arraignment before the July 29th arraignment term ended, we will not condemn the Commonwealth for not acting as “watchdog” over the actions of the district justice, just as we have not held the Commonwealth responsible for derelictions on the part of other agencies within the system. See discussion of Colon, Harris and Lewis, supra.
The Commonwealth did file a timely Petition for Extension of Time which listed the next possible trial term. This, along with the acknowledgement by all concerned that the September 30th arraignment date was the reason for the tardiness of the trial date, is sufficient to satisfy the test of Commonwealth v. Mayfield, supra. Accordingly, we reverse the order in question and remand this case to the trial court for reinstatement of the charges against appellee.
Order reversed. Case remanded. Jurisdiction relinquished.
MONTEMURO, J., files a dissenting memorandum.