J. S51033/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL FISCHETTI,                       :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :          No. 694 EDA 2018
                                         :
LISA MARIE FISCHETTI                     :


                  Appeal from the Order, January 25, 2018,
               in the Court of Common Pleas of Wayne County
                       Civil Division at No. 221-2014 DR


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 23, 2018

      Michael Fischetti (“Husband”) appeals from the January 25, 2018 order

denying his petition for special relief to terminate his contractual alimony

obligation to his former wife, Lisa Fischetti (“Wife”), entered in the Court of

Common Pleas of Wayne County. We quash.

      The record reflects that the parties were married on June 19, 1987.

Husband filed a complaint in divorce on June 6, 2012, alleging irretrievable

breakdown pursuant to Section 3301(d) of the Divorce Code. At the time

Husband filed the complaint, the parties had no minor children.             On

January 23, 2015, the parties, represented by counsel, entered into a

stipulation that set forth their agreement with respect to equitable

distribution and alimony. With respect to alimony, the parties agreed that

“Wife shall receive in the form of alimony the sum of $450 per month with
J. S51033/18

first payment due 30 days from the date of the divorce decree.”

(Stipulation, 1/23/15 at 8.)    The stipulation incorporated into, but did not

merge with, the parties’ divorce decree, which was entered on April 23,

2015.

        On August 18, 2017, Husband filed a petition for special relief to

terminate alimony alleging that the parties’ January 23, 2015 alimony

stipulation is unenforceable and/or void because the stipulation does not

have a termination date and “[i]t is believed and thereafter alleged that

[Wife] is cohabitating with a person.” (Husband’s petition for special relief to

terminate alimony, 8/18/17 at 1, ¶¶ 4-5.) Following the submission of briefs

and a hearing on the matter, the trial court denied Husband’s petition by

order entered and served January 25, 2018. Consequently, the last day to

timely file a notice of appeal was Monday, February 26, 2018.              See

Pa.R.A.P. 903(a) (providing that a notice of appeal “shall be filed within

30 days after the entry from which the appeal is taken”); see also

1 Pa.C.S.A. § 1908 (providing that when a statutory filing deadline falls on a

Saturday, Sunday, or holiday, the deadline will be extended to the next

business day). Husband filed his notice of appeal on February 28, 2018.

        We note that the certified record contains a letter dated February 20,

2018, indicating that Husband’s counsel mailed the notice of appeal to the

Wayne County prothonotary for filing on that date.       Attached to the filed

notice of appeal, which reflects a stamped docketing date of February 28,



                                     -2-
J. S51033/18

2018, is an envelope that bears a postage-meter stamp indicating that

postage was placed on the envelope on February 20, 2018. The notice of

appeal, however, was not filed until February 28, 2018, which rendered it

untimely. Although Pa.R.A.P. 121(e) permits additional time for service of

certain papers by mail, our supreme court has held that Rule 121(e) does

not apply to a notice of appeal. Coney Island, II v. Pottsville Area Sch.

Dist., 441 A.2d 747, 749 (Pa. 1982) (finding that the comment to

Rule 121(e) accurately reflects our supreme court’s intention that the rule

does not apply, among other things, to the filing of a notice of appeal, which

comment is consistent with the text of the rule, as the text excludes matters

that respond to a court order). Despite the untimeliness of Husband’s notice

of appeal, the trial court ordered Husband to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Husband

complied. The trial court did not, however, file a Pa.R.A.P. 1925(a) opinion.

      Pennsylvania Rule of Appellate Procedure 902 requires that a notice of

appeal be filed in the time allowed by Rule 903. See Pa.R.A.P. 902. With

respect to Rule 902, this court has stated:

            The rule provides of no exceptions. In fact, the rule
            emphasizes that the filing of a timely notice of
            appeal is the sine qua non of a proper appeal from
            a final order by stating that “[f]ailure of an appellant
            to take any step other than the timely filing of a
            notice of appeal does not affect the validity of the
            appeal. . . .” This clearly implies that the only failure
            that does affect the validity of the appeal is the
            failure to file a timely notice of appeal. It is this
            failure that we have no jurisdiction to excuse.


                                      -3-
J. S51033/18



Cubano v. Sheehan, 146 A.3d 791, 794 (Pa.Super. 2016), citing

Thermo-Guard, Inc. v. Cochran, 596 A.2d 188, 192 (Pa.Super. 1991)

(emphasis in original) (superseded by statute on other grounds).

      Here, the docket demonstrates that Husband filed his notice of appeal

on February 28, 2018, which was two days beyond the deadline set forth in

Rule 903(a).1 Consequently, because Husband’s appeal was untimely filed,

this court is divested of jurisdiction, and we must quash the appeal.    See

Cubano, 146 A.2d at 794.

      Even if Husband’s untimely filing of his notice of appeal did not result

in quashal, Husband would not be entitled to relief.     The parties’ divorce

decree states that the parties’ January 23, 2015 stipulation is “incorporated

but not merged in this Decree and Order.” (Decree, 4/23/15.) As such, the

stipulation constitutes a separate and independent contract that survived the

divorce decree and must be construed under the law of contracts.         See

McMahon v. McMahon, 612 A.2d 1360, 1363 (Pa.Super. 1992). As aptly

stated by the trial court,

            [t]he January 23, 2015 Agreement clearly states that
            [W]ife shall receive in the form of alimony the sum
            of $450 per month with first payment due 30 days
            from the date of the divorce decree. The Agreement
            does not contain conditions for modification or

1 We remind Husband’s counsel that our supreme court has held that
because delays in the U.S. mail are both foreseeable and avoidable, an
appellant’s failure to anticipate a potential delay in the mail does not
constitute a non-negligent circumstance for which an appeal nunc pro tunc
may be granted. Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).


                                    -4-
J. S51033/18


           termination.    Absent fraud, misrepresentation, or
           duress, spouses should be bound by the terms of
           their agreements. Simeone v. Simeone, 581 A.2d
           162 (Pa. 1990). Here, the parties were free to
           include conditions in the agreement under which
           alimony payments would be terminated.        If the
           parties had intended the payments to cease upon
           cohabitation, they could have so provided.

Order of court, 1/25/18 at n.1.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/23/18




                                  -5-
