dissenting:
The complaint in the instant case was filed against the appellant on May 7, 1974. The Commonwealth was therefore obliged under Pa.R.Crim.P. 1100(a)(1)1 to bring the appellant to trial within 270 days, or by February 3, 1975. Trial, however, did not begin until September 9, 1975. The *142appellant thus contends that his right to a speedy trial as embodied in Rule 1100 was violated. I agree with this contention.
The record shows that on January 20, 1975, prior to the expiration of the prescribed period, the Commonwealth filed a petition to extend the time for trial. See Pa.R.Crim.P. 1100(c).2 The Commonwealth’s form petition to extend alleged that the Commonwealth was prepared to proceed to trial, but was unable to do so because the Court Administrator of Montgomery County had failed to list the case for trial. On February 21, 1975, the court below, after a hearing, allowed the Commonwealth until April 30, 1975, to bring the appellant to trial. On March 10, 1975, the Commonwealth requested by form petition that trial be continued due to the unavailability of an important Commonwealth witness. Although the Commonwealth’s application for a continuance was signed by the lower court, the appellant, and appellant’s counsel on March 10th, the application was not docketed in the lower court until August 26, 1975, one day after the appellant filed a motion to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f).3 The appellant’s motion to dismiss was denied by the court below on September 9, 1975, when trial began.
For various reasons, the majority affirms the action of the court below. Before discussing my differences with the rationale of the majority, I am constrained to note that the lower court, in its opinion, mistakenly equates the Commonwealth’s March 10th motion for a continuance with an *143application for an extension under Pa.R.Crim.P. 1100(c). The two are not the same, differing substantially in legal effect. See Commonwealth v. Kincade, 246 Pa.Super. 389, 371 A.2d 894 (1976). Under Rule 1100, no part of the delay in trial caused by the grant of a continuance to the Commonwealth may be excluded from the computation of the prescribed period unless the continuance is agreed to or caused by the appellant or his counsel. See Pa.R.Crim.P. 1100(d)(1) and (2)4 On the other hand, Section (c) of Rule 1100 provides that the Commonwealth may be granted an extension of time for trial if it can demonstrate that trial cannot be commenced within the prescribed time despite its due diligence. See note 2, supra. Moreover any order by the lower court granting the Commonwealth’s request for an extension of time must specify the date or period of time within which trial shall be commenced. Compare Pa.R. Crim.P. 1100(c) with Pa.R.Crim.P. 301(a).5 Here, the record shows that no petition for extension or order granting such extension was ever filed other than those papers pertaining to the order of extension dated February 21, 1975. The Commonwealth’s motion of March 10th was undeniably a request for a continuance and not a petition for a time extension.
The majority finds that the appellant abandoned absolutely any rights under Rule 1100 by consenting in writing to the Commonwealth’s March 10th request for a continuance. Certainly, “[r]ule 1100, like the right to a speedy trial which it protects, may be waived.” Commonwealth v. Myrick, 468 *144Pa. 155, 159, 360 A.2d 598, 600 (1976). The record, however, belies the majority’s conclusion that the appellant’s consent to a continuance for the Commonwealth constituted consent to an indefinite delay in bringing his case to trial.
The Commonwealth must establish on the record that the appellant’s decision to waive his Rule 1100 rights was voluntary and informed. Commonwealth v. Myrick, supra. Here, the Commonwealth predicated its form request for a continuance solely upon the unavailability of a key witness. The record, however, conclusively established that the witness was present in Montgomery County, and available for trial, on March 19,1975. On that date, the reason for the delay in trial, and the appellant’s consent to that delay, ended. There is nothing in the record to demonstrate that the appellant agreed to any delay in trial other than the nine day period of delay caused by the absence of the Commonwealth’s witness.
At the hearing on the appellant’s motion to dismiss, the Commonwealth explained that its failure to bring the appellant to trial from March 19, 1975, until September 9, 1975, was due to the lack of available courtroom space in Montgomery County. While we can exclude the period of delay to which the appellant consented, nine days, from the calculation of the prescribed time, we cannot so exclude periods of delay attributable to the judiciary. Commonwealth v. Shelton, 239 Pa.Super. 195, 361 A.2d 873 (1976), aff’d 469 Pa. 8, 364 A.2d 694 (1976); Pa.R.Crim.P. 1100(d). Under the terms of the extension order dated February 21, 1975, the Commonwealth was required to bring the appellant to trial by April 30, 1975. On August 25, 1975, when the appellant filed his motion to dismiss, the mandatory period had already been exceeded. Any period beyond this date “. must be either excluded from the computation [of the mandatory period] under [1100(d)] or justified by an order granting an extension pursuant to [1100(c)], if the Commonwealth is to prevail.” Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). The Commonwealth failed to apply for a second extension of time, as it assuredly should have, and *145the exclusion of nine days fails to account for the entire period of delay. I would therefore order the appellant discharged.6
HOFFMAN and SPAETH, JJ., join in this dissenting opinion.. Pa.R.Crim.P. 1100(c) provides in pertinent part:
“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 commencement of trial. . . Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.”
. Pa.R.Crim.P. 1100(f) provides in pertinent part:
“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(d) provides:
“In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.”
. Pa.R.Crim.P. 301(a) provides:
“The court may, in the interests of justice, grant a continuance, of its own motion, or on the application of either party. The court shall on the record identify the moving party and state of record the court’s reasons justifying the granting or denial of the continuance.”
. I have assumed in my opinion that the appellant had in fact waived his Rule 1100 rights in regard to the period of delay caused by the unavailability of the Commonwealth witness. However, the validity of the appellant’s consent is not beyond question. The form petition containing the Commonwealth’s continuance request, and the appellant’s consent thereto, is woefully incomplete. It is true that both the appellant and his counsel signed the Commonwealth’s petition and that “waive 1100” is scrawled above counsel’s name. However, the appellant’s counsel failed to note on the petition, as required, that he was not opposed to the continuance. The appellant himself failed to indicate on the petition, as required, that he had no objection to the continuance. And, the lower court failed to mark on the petition whether the application was granted or denied. In fact, the record shows that the application was not officially docketed until August 26, 1975, long after the expiration of the mandatory period. In Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976), we noted our strong disapproval of the use of wretchedly incomplete form petitions for time extensions under Rule 1100. The use of similarly afflicted continuance petitions must also be condemned.