Commonwealth v. Kurtz

¶1dissenting:

¶2I respectfully dissent.

¶3Rule 1100(c)(1) provides that:

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 the commencement of trial.1

¶4The issue before this Court is the interpretation of the words “may apply to the court.” The significance of whether appellee did apply to the court in a timely fashion lies in the fact that: “Failure to file a timely extension petition precludes the granting of an extension because the Commonwealth is not permitted to file a petition nunc pro tunc.” Commonwealth v. Bytheway, 290 Pa.Super. 148 at 152, 434 A.2d 173 at 175 (1981).

¶5In Commonwealth v. Shelton, 469 Pa. 8 at 15, 364 A.2d 694 at 697 (1976) the Supreme Court of this Commonwealth used language which appeared to equate the language of Rule 1100(c) — “apply to the court” — with filing.

The Commonwealth may not seek an extension pursuant to section (c) of the Rule nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting extension ... The trial court relied upon Sheltonin holding that the

¶6instant petition — filed, but not presented to the court — was timely.

¶7However, as this Court noted in Commonwealth v. Wharton, 250 Pa.Super. 25 at 30, 378 A.2d 434 at 437 (1979) (Cercone, J.), the filing/apply to the court distinction was not present in Sheltonand, consequently, its language should not be interpreted to supply an answer to a question which was not before that court in that case.

¶8*435While the case sub judice does not replicate the factual situation present in Wharton, I conclude that Wharton’s rationale dictates the outcome here. In Whartonthe operative facts were the reverse of those before us: the petition was timely presented to the court but not timely filed.2

¶9The unanimous, seven-judge court held:

... the question of timely filing should be decided on whether or not said petition is properly before the lower court prior to the expiration of the mandatory period, not whether or not the petition is docketed in the clerk of court’s office prior to the expiration of the period. It is the court, not the clerk of court, which must act on the petition.

¶10Id.

¶11The trial court opinion, endorsed by the en banc court below, found that Whartonwas not relevant here. “The holding of this case [ Wharton] cannot be extended to mean that filing is inadequate to place an application for extension of time before the trial court.”

¶12While I agree with the trial court that “this precise question has not been decided by the appellate courts,” 3 I disagree about the applicability of Whartonto the situation before us.

¶13If all that Whartonhad said was that having a petition presented to the court met the requirements of Rule 1100, notwithstanding its tardy filing; then, indeed, it would be possible to consistently hold here that a timely filing, notwithstanding a tardy presentation to the court, also met Rule 1100. In other words, it would be possible then to state that as long as one or the other was timely the Rule 1100 requirements were met.

¶14But that is not where Whartonstops. It goes further and states that the dispositive factor is whether the petition is properly before the court — and distinguishes that from filing with the clerk. Whartonbinds us, as I see it, to *436accept that it is crucial that the court receive the petition; because “it is the court, not the clerk of court, which must act on the petition.” Following the rationale of Wharton, we are obliged, in all intellectual integrity, to find that the tardy presentation to the court itself will not suffice.4

¶15…

¶16Other considerations lead me to the conclusion that the result dictated by Whartonis correct.

¶17First we have the plain language of the rule. It does not require that the Commonwealth file a petition, but rather it states “the attorney for the Commonwealth may apply to the court for an order extending the time.”

¶18Second, such a practice would be consonant with general pre-trial practice. The comment to the rule in effect at the time of the proceedings under review stated:5

All applications should be submitted to a judge of the court first keeping in theory the practice of rules to show cause subject to modification by local court rule where desirable.

¶19Pa.R.Crim.P. 304.6

¶20A misapprehension of the consequences of this case was presented in the trial court opinion.

In the absence of a contrary holding by an appellate court, particularly in view of the language which the *437courts have used in construing Rule 1100(c), we are unwilling to hold that a petition for extension of time filed on the 180th day is untimely merely because the court did not on the same day issue a rule or set a date for hearing.

¶21That is not what I am stating here. Nor is it what Whartonheld. The timeliness of petition to extend is determined by the prosecution’s actions — not by the timing of the court’s response to the petition. It is determinative that the petition is directly before the court in time; while it is not relevant whether or not the court itself acts upon the petition that day.7

¶22One other statement in the trial court opinion, repeated in appellee’s brief, also merits treatment here. The trial court noted that appellant’s motion to dismiss under Rule 1100(f) was also filed and not presented directly to the court. Rule 1100(f) also has the critical language present in Rule 1100(c): “... may apply to the court...” 8 The trial court held that appellant’s motion to dismiss, as well as appellee’s petition to extend, were properly submitted. I disagree.

¶23Appellant’s motion to dismiss, filed but not presented to the court, was not properly submitted. This follows from my conclusion that appellee’s petition was improperly submitted. It would be obviously unjust to have different requirements for submission of Rule 1100 motions depending on whether the moving party was the Commonwealth or the defendant. This is particularly true when the pertinent language of the rule, “may apply to the court,” is the same in subdivisions (c), for the Commonwealth, and (f), for the defendant.

¶24The impropriety, or not, of a motion to dismiss is significant because a criminal defendant can waive his Rule 1100 claim by failing to contest the Commonwealth’s petition to *438extend. Commonwealth v. Garnett, 258 Pa.Super. 115 at 118 n. 6, 392 A.2d 711 at 712 n. 6 (1978).

¶25While appellant did not properly submit his motion to dismiss, he did not waive his claim here. This is because filing a motion to dismiss is not the only method a defendant has to challenge the grant of an extension.

Thus he must either file a motion under Rule 1100(f) or contest the Commonwealth’s petition to extend, so that by one method or the other the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived.

¶26Commonwealth v. Davis, 261 Pa.Super. 204 at 208, 395 A.2d 1388 at 1390 (1978) (emphasis supplied). See also, Commonwealth v. McFadden, 300 Pa.Super. 299 at 303, 446 A.2d 624 at 626 (1982). At the hearing, appellant did contest the petition to extend.

¶27I would vacate judgment of sentence and discharge appellant.