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Stephens v. Messick

Denial of petition seeking to open judgment of non pros affirmed; petitioner did not establish a valid excuse for the more than four year delay between quash of her improper direct appeal of non pros judgment and her filing of the instant proper petition; motion for reconsideration of judgment was not functional equivalent of a promptly filed petition.

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OPINION

� 1 Shan Stephens appeals from the order entered May 10, 2001 in the Court of Common Pleas of Delaware County that denied her petition, filed February 16, 2001, seeking to strike or, alternatively, open the judgment of non pros entered July, 1996. While the judgment of non pros was entered July 3, 1996, her petition to strike or open was not filed until February 16, 2001, four years and two months after this Court quashed her improper direct appeal of the entry of the judgment of non pros. Because there is no excuse for this delay, no issues are preserved for our review concerning the judgment of non pros and we affirm the decision of the trial court refusing to strike it or open it.

� 2 The critical issue in this case is whether Stephens waived her challenge to the initial entry of the non pros by failing to promptly file a Pa.R.C.P. 3051 petition seeking relief from the judgment of non pros. We conclude that filing a motion for reconsideration together with an improper direct appeal of the entry of the judgment of non pros is not the same as filing the proper petition to strike or open the non pros under Pa.R.C.P. 3051. Because Stephens waited for four years and two months after we quashed her improper direct appeal before she filed a proper petition under Pa.R.C.P. 3051, and because that delay is not reasonably explained, it operates as a waiver of issues concerning whether the judgment of non pros was properly entered in the first instance.

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