*433Concurring Opinion by
Mr. Justice Cohen:I agree with the majority that Wilson was denied the right to “adequate and timely notice” mandated by In re Gault, 387 U.S. 1 (1967), and that the record must be remanded for a new trial. I do not, however, concur in the reasoning expressed by the majority in the paragraph entitled “Equal Protection.”
First, it is absolutely unnecessary to reach this issue as the failure to give adequate notice makes a new trial mandatory. Also, assuming the majority is correct in holding that the sentence given Wilson violates the Equal Protection Clause, the remedy, if that were the only error below, would be to remand for resentencing. Since we have already determined that a whole new trial must be held, there is no point in discussing the narrower question of the proper sentencing procedure.
Second, the majority states that Wilson was found delinquent as a result of the assault and battery charges and that “[i]t is our view that there can be no constitutionally valid distinction between a juvenile and an adult offender which justifies making one of them subject to a longer maximum commitment in the same institution for the same conduct.” This reasoning is directly contradictory to that expressed in the paragraph on notice. In that section the majority states: “It is quite clear that the hearing judge in this case drew no distinction between those issues which were relevant to the adjudication and those which were important only in determining the length of commitment. Rather, he obviously based the adjudication of delinquency on two previous incidents in which Wilson had been involved, a school suspension and a ‘burglary/ as well as on the finding that he had participated in the street fight that led to the initiation of the proceedings.”
*434The record discloses the following colloquy. The Court: Were you suspended from school also? You seem to be in need of some stricter discipline. Isn’t that about right? Wilson : I don’t know. The Court : You don’t know. Well, if you don’t know, the court so finds from the testimony in this ease and from your prior eonduet. The court adjudges Charles Láveme Wilson a delinquent and commits, him to the State Correctional Institution at Camp Hill, Pennsylvania. . . .” (Emphasis added) It is because Wilson was not given notice of the fact that conduct other than that involved in the assault and battery charge would be evaluated in determining whether he were a delinquent that the majority remands for a new trial. I do not understand how it can then say that the conduct which led to his five-year sentence was the same as would lead to a maximum two-year sentence if he had been tried as an adult. The conduct which led to the finding of delinquency and the five-year sentence was not only -that conduct which would support a charge of simple assault and battery.. Additional conduct was involved, and as such, it is incorrect to state that Wilson was denied the equal protection of the laws because the conduct for which he was sentenced was the same as that which would have pi^odueed a two-year sentence if he had been tried as an adult.
Finally, I cannot concur in the majority’s conclusion that a. juvenile may be committed for a period longer than that to which he would be subject were he an adult if their three factors are present. The first two factors must be present in every delinquency adjudication regardless of the prospective sentence, and as to them there can be no question. The third factor, however, states “it must be clear that the longer commitment will result in the juvenile’s receiving appropriate rehabilitative care and not just in his being deprived of his liberty for a longer time.” I do not see how the sen-*435fencing court at the time of imposing sentence or the Superior Court or this Count on appeal can determine whether a certain period of commitment will result in appropriate rehabilitative care or deprivation of liberty. Use of -this approach will require courts to guess what the defendant will be doing and what will be done for him during the period of commitment, and it is being unrealistic to expect that courts can make such a determination in a meaningful way. Aside from these three factors, I do not believe that a juvenile can ever be incarcerated for a longer period than an adult for the game conduct. However, the record discloses that this is not the factual situation now before us.
As I agree with the majority that Wilson did not receive the notice required by Gault, I concur in the grant of a new trial.
Mr. Chief Justice Bell joins in this opinion.