dissenting:
I join in the well-reasoned dissenting opinion by Judge PRICE, but am compelled to add a brief dissent because of confusion created by the Supreme Court’s recent decisions in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), and Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
Appellant’s preliminary hearing was originally scheduled for July 22, 1974, but was continued until August 13, 1974, because of scheduling difficulties experienced by the justice of the peace. The lower court subsequently granted the Commonwealth’s petition to extend pursuant to Rule 1100(c). However, a prerequisite to such an extension is that the Commonwealth exercise due diligence in bringing an accused to trial. Judge PRICE notes that the Supreme Court in Commonwealth v. Mayfield, supra, held that the judiciary as well as the prosecutor must exercise due diligence. See also, ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 3.8 (Approved Draft, 1972); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial § 1.2 (Approved Draft, 1968). Further, Judge PRICE notes that the justice’s failure to comply with Rule 140(f),1 pre*569eludes a finding that the Commonwealth demonstrated due diligence. I agree.
The Supreme Court reversed our holding in Mayfield, see Commonwealth v. Mayfield, 239 Pa.Super. 279, 362 A.2d 994 (1976), and stated that “[t]he Superior Court, concluding that rule 1100 was intended to promote prompt action by the courts as well as by the prosecution, held that delays attributable to court administration could never justify an extension under rule 1100(c). The rule, however, was not intended to create such an inflexible result.” Commonwealth v. Mayfield, supra, 469 Pa. at 220, 364 A.2d at 1348. Nonetheless, Justice ROBERTS, writing for a unanimous court, was careful to note that the rule did not exempt the judiciary from the exercise of due diligence.
The Majority, however, resolves the instant problem by relying on language in Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), rather than on Commonwealth v. Mayfield, supra: “What has occurred in the case at bar is that a three week delay at the district magistrate’s office resulted in an unavoidable four month delay for trial. Our Supreme Court recently stated that:
“ ‘The “Commonwealth” in the context of the Rule clearly refers to prosecutorial officers and not to the judiciary. Literally read, the Rule quite simply does not attempt to solve the problem of eliminating delay due to the judiciary; rather, it attempts to eliminate delay due to lack of due diligence on the part of prosecutorial officers.’ Commonwealth v. Shelton, supra, 469 Pa. at 16, 364 A.2d at 698.” At 772. Although Shelton and May-*570field were handed down on the same day by a unanimous court, I believe that the Court’s position is inconsistent on whether the “Commonwealth” for purposes of the rule means the prosecutor or the entire court system. See also Commonwealth v. Silver, 238 Pa.Super. 221, 357 A.2d 612 (1976). In Shelton, the Supreme Court disapproved dicta in our Court’s decision in the same case. Compare Commonwealth v. Shelton, supra, 469 Pa. at 19, 364 A.2d at 699 and Commonwealth v. Shelton, 239 Pa.Super. 195, 361 A.2d 873 (1976).2 In turn, the language relied upon by the Majority was also unnecessary to the Supreme Court’s decision. However, the issue was not dicta in Mayfield. Thus, I resolve any contradiction in language by relying on the holding in Mayfield and agree with Judge PRICE’S conclusion that the judiciary must exercise due diligence.
Therefore, I dissent.
PRICE and SPAETH, JJ., joined in this dissenting opinion.. Rule 140(f) provides: “when a preliminary hearing is not waived, the issuing authority shall:
“(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary *569arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth;
“(2) give the defendant notice of the time and place of hearing thus fixed; and
“(3) afford the defendant a reasonable opportunity to post bail, and if bail is not so obtained, commit him to jail according to law.”
. The Supreme Court agreed with this Court that the Commonwealth’s failure to petition to extend pursuant to Rule 1100(c) mandated a dismissal of the charges. Our Court had gone further and discussed whether, had a timely petition been filed, the justification offered by the Commonwealth — courtroom unavailability — could justify an extension.
. 18 Pa.C.S. § 3921.