E.O.J., Inc. v. Tax Claim Bureau of Schuylkill County , 1998 Pa. Commw. LEXIS 884 ( 1998 )

McGINLEY, Judge,

dissenting.

I respectfully dissent to the portion of the majority’s conclusion that “the trial court erred as a matter of law in determining that it did not possess jurisdiction over EOJ’s petition for relief from judgment of non pros....”

Pa. R.C.P. No. 3051 provides:

(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.

(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that

(1) the petition is timely filed,

(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and

(3) there is a meritorious cause of action. (emphasis added).

The 1991 Explanatory Comment to this rule states:

In addition to providing a uniform method of obtaining relief from a judgment of non pros, subdivision (b) of the new rule also provides for uniformity in the requirements of the petition to open such a judgment. Since the rule adopts the practice of seeking relief from a judgment of non pros in the trial court prior to taking an appeal, the rule also adopts traditional requirements for the opening of judgment as set forth in the Valley [Peat & Humus v. Sunnylands, Inc.] case, 398 Pa.Super. at 406, 581 A.2d at 196:

In order to open a non pros judgment, three factors must be present: (1) the petition to open must be promptly filed .... (emphasis added).

In the present controversy, the trial court granted the motions for judgments of non pros on February 17, 1997. On May 18, 1997, EOJ petitioned for relief from the judgment of non pros, more than three months after the trial court’s February 17, 1997, order. I believe that EOJ failed to promptly file its petition as required by Pa. R.C.P. No. 3051(b)(1). I would affirm the decision of the trial court.