J-S05002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BENEDICT F. DIAZ, JR., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICIA AIKEN, ROBERT AIKEN AND 

WEICHERT REALTORS,

Appellants No. 1087 MDA 2016

Appeal from the Order Entered June 3, 2016

In the Court of Common Pleas of Susquehanna County

Civil Division at No(s): 2015-1304

BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 21, 2017

Appellants, Patricia Aiken, Robert Aiken and Weichert Realtors, appeal 

from the trial court’s order overruling their preliminary objections, which 

asserted, inter alia, that the trial court must dismiss Appellee’s, Benedict F. 

Diaz, Jr., complaint filed in the Court of Common Pleas of Susquehanna 

County because of a binding arbitration clause allegedly present in a 

contract between the parties. For the reasons herein, we quash this appeal 

as untimely.

The trial court summarized the factual background and procedural 

history of this case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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[Appellants], Patricia Aiken and Robert Aiken, Weichert 

Realtors Across Country Associates, filed an appeal to the 

Pennsylvania Superior Court, appealing our order of June 3, 

2016, wherein we overruled [Appellants’] ... Preliminary 

Objections[,] filed [on] January 4, 2016. We further ordered 

[Appellants] to file an answer to [Appellee’s] Complaint within 

thirty (30) days of the order date. 

In the preliminary objections, [Appellants] alleged that the 

Court of Common Pleas was without jurisdiction in that a written 

contract, alleged to be between the parties, contained a clause 

providing for mandatory binding arbitration for the resolution of 

all disputes arising between the parties. 

[Appellants] attached to their preliminary objections a 

written document of six pages, [which] they purported to be a 

copy of a written contract between the parties. We, in 

determining [Appellants’] Preliminary Objections[,] reviewed the 

said writing and found that although the writing was signed by 

[Appellee], Benedict F. Diaz, it was not executed by any 

authorized agent or principal of Weichert Realtors Across 

America Associates. Further the same written document 

contained numerous blank spaces, including but not limited to 

fees the broker would pay the sales associates for sales, rental 

and[/]or purchase of real property. 

Thus, absent any proof otherwise, we cannot accept that 

the writing attached to [Appellants’] Preliminary Objections was 

a written contract binding the parties, [Appellee] and 

[Appellants], in any respect[,] including binding arbitration.

Moreover, [Appellee’s] Complaint alleges an oral contract 

entered into by [Appellee] Diaz with the parties on or about June 

6, 2012.

Trial Court’s “Statement in Lieu of an Opinion Pursuant to Pa.R.A.P. 1925,” 

9/21/2016, at 1-2 (unnumbered pages).

On appeal, Appellants raise the following issue for our review:

Whether the [t]rial [c]ourt erred as [a] matter of law and 

committed an abuse of discretion in refusing to dismiss 

[Appellee’s] [c]omplaint when the allegations of record 

mandated the finding that the parties had agreed to arbitration 
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and the dispute between the parties fell within the scope of that 

arbitration clause?

Appellants’ Brief at 3.

Preliminarily, we must consider the timeliness of Appellants’ appeal, as 

it implicates our jurisdiction. See Valley Forge Center Associates v. RibIt/K.P., Inc., 693 A.2d 242, 245 (Pa. Super. 1997) (“This Court is without 

jurisdiction to excuse a failure to file a timely notice, as the 30-day period 

must be strictly construed. [A]n untimely appeal divests this Court of 

jurisdiction.”) (citations omitted). Appellee asserts that this appeal was filed 

“beyond the 30 day timeframe for filing such an appeal.” Appellee’s Brief at 

7 (unnumbered pages).1 Pennsylvania Rule of Appellate Procedure 903(a) 

sets forth that “the notice of appeal ... shall be filed within 30 days after the 

entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). 

Here, the trial court entered its order overruling Appellants’ 

preliminary objections on June 3, 2016. The thirtieth day after the entry of 

this order — which would ordinarily constitute the last day of the appeal 

period pursuant to Pa.R.A.P. 903(a) — fell on Sunday, July 3, 2016.2 

____________________________________________

1 We additionally note that this Court may raise jurisdictional issues sua 

sponte. Valley Forge Center Associates, 693 A.2d at 243 (citation 

omitted). 

2 See Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the Pennsylvania Consolidated 

Statutes (rules of construction) so far as not inconsistent with any express 

provision of these rules, shall be applicable to the interpretation of these 

rules and all amendments hereto to the same extent as if these rules were 

enactments of the General Assembly.”); see also 1 Pa.C.S. § 1908 (“When 

any period of time is referred to in any statute, such period in all cases ... 

(Footnote Continued Next Page)
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Because that was a Sunday, however, we must omit it from our computation 

of the appeal period.3 Moreover, we also omit the next day, Monday, July 4, 

2016, from our computation because it is a legal holiday.4 Therefore, the 

last day of the thirty-day appeal period fell on Tuesday, July 5, 2016. 

Appellants did not file their notice of appeal until Wednesday, July 6, 2016. 

Thus, because this appeal was not filed within thirty days after the entry of 

the trial court’s order overruling Appellants’ preliminary objections from 

which they appeal, it is untimely. Accordingly, this Court lacks jurisdiction 

over this matter, and we are constrained to quash this appeal.

Appeal quashed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/21/2017

(Footnote Continued) _______________________

shall be so computed as to exclude the first and include the last day of such 

period.”).

3 See Pa.R.A.P. 107, supra; see also 1 Pa.C.S. § 1908 (“Whenever the last 

day of any such period shall fall on Saturday or Sunday, or on any day made 

a legal holiday by the laws of this Commonwealth or of the United States, 

such day shall be omitted from the computation.”).

4 See 5 U.S.C. § 6103(a) (declaring Independence Day, July 4, as a legal 

public holiday); 44 P.S. § 11 (designating the fourth of July as a holiday).