dissenting:
Appellant was arrested on January 28, 1986, at approximately 7:30 p.m. for the offenses of driving under the influence and driving on. the right side of the roadway. On Monday, February 3, 1986, six (6) days after the arrest, a criminal complaint was filed and a summons issued by the District Magistrate. I respectfully dissent and would affirm the Order of the trial court dismissing the case for failure to file the criminal complaint in a timely fashion.
The Commonwealth contends the criminal complaint was filed in compliance with the requirements of Pa.R.Crim.P. 130(d) as the fifth and final day under Rule 130(d) fell on a Sunday and the court should treat the sixth day (Monday) as the final day for computation purposes.1 The Commonwealth cites to the statutory Rules of Construction, at 1 Pa.C.S.A. 1901 et al., specifically section 1908, “Computation of time” which reads:
When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in Section 1909 of this title (relating to publication for successive weeks) and section 1901 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on *241Saturday 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 computation. (Emphasis added.)
The majority did not follow the reasoning suggested by the Commonwealth but rather relied on Commonwealth v. Schimelfenig, et al., 361 Pa.Super. 325, 522 A.2d 605 (1987), wherein the failure to file a criminal complaint within five days of arrest did not mandate dismissal of the case. Arrest and release of the appellee occurred on January 28, 1986. The fifth day for filing under Rule 130(d) fell on Sunday, February 2, 1986, which was a legal holiday, the complaint being filed on Monday, February 3, 1986.
I am in full agreement with the trial court’s finding that, unquestionably, there was an on-duty magistrate who could have been contacted by the arresting officer and the summons properly filed within the five-day period. The availability of magistrates at all times is, in fact, recognized by our Supreme Court. In an analogous situation, the case of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) requires an accused to be arraigned within six hours of arrest, regardless of the day of the week or the time of day. This requirement presupposes that a magistrate will always be available to conduct arraignments. Likewise, they would be available to receive complaints.
In addition, Pa.R.Crim.P. 23(a) provides that “[t]he president judge of each judicial district shall be responsible for insuring the availability at all times within his judicial district or at least one issuing authority.” And as the comment to Rule 23 states, inter alia, “[t]his rule is intended to impose the responsibility on the president judge to prevent the violation of the rights of defendants caused by the lack of availability of the district justice.”
The Commonwealth’s argument, supported by the majority, is that absent a showing of prejudice Rule 130(d) should not be interpreted as mandatory so as to require dismissal of a criminal complaint filed beyond five days. I disagree. Nowhere in the language of 130(d) can prejudice or lack of *242it be found to be a consideration in resolving this issue. It is quite clear that Rule 130(d) is not merely directory, but mandatory in its plain meaning that a complaint must be filed within five days of arrest and release. In support of its position, the majority holds that Rule 130(d) must be read in conjunction with Pa.R.Crim.P. 150 which provides:
Rule 150. Defects in Form, Content, or Procedure— Court Cases
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.
I believe that Rule 150 has no application to Rule 130(d) in view of the clear language of Rule 150 that it applies only to defects in form or content and procedures, none of which have anything to do with timeliness. The mandate of Pa.R.Crim.P. 130(d) is jurisdictional and not procedural and, therefore, its effect cannot be waived nor may it be modified by judicial or other action. With the majority’s connotation, any failure to file a complaint in a timely fashion, even after a statute of limitations has run, would be considered correctable if prejudice could not be established. Procedure, as it is expressed in the above rule, can only mean those actions which occur after the timely filing of the complaint. Those matters dealt with in Rule 150 are the elements and matters of substance (content); the shape and structure of the complaint (form); and the series of steps followed in a definite order (procedure). Rule 130(d) deals with time. If the complaint is not presented in time, questions of form, content and procedure are nullities and no amount of amending or reconstruction will serve to rehabilitate the action. With the requirement that a magistrate be available at all times and the unequivocal mandate that the complaint be filed within five days, the necessity that the complaint be filed with due diligence, clearly is superior to a *243showing that the defendant is prejudiced by late filing. When the matter is considered in terms of prejudice, there can be no greater prejudice than to be brought to trial and to be subject to criminal sanctions when otherwise one would be free.
. Pa.R.Crim.P. 130(d) provides:
(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.