Appeal from the order of the Court of Common Pleas of Philadelphia County in the case of Calhoun H. Williams v. City of Philadelphia, No. 2180 May Term, 1987.
Kevin M. McKenna, Assistant City Solicitor, with him, Carl Oxholm, III, Chief Deputy City Solicitor, for appellant.
Bruce W. McCullough, Swartz, Campbell & Detweiler, for appellee.
Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 122 Pa. Commw. Page 631]
The City of Philadelphia (City) appeals from a decision of the Court of Common Pleas of Philadelphia County granting a petition to open judgment filed by Calhoun H. Williams (Williams). We reverse.
This suit has its genesis in a writ of summons filed by Williams on May 13, 1987. The City thereafter filed a rule to file a complaint on June 19, 1987. When Williams did not file a complaint, the City filed a praecipe for non pros judgment 17, 1987. For some unknown reason, the non pros judgment was not entered on the court's docket until August 17, 1987. Williams filed a petition to open judgment on September 23, 1987 -- thirty-six days after a non pros judgment had been entered. This petition was granted on January 20, 1988. Hence, this appeal.*fn1
[ 122 Pa. Commw. Page 632]
The City argues on appeal that (1) Williams did not satisfy the necessary criteria for opening a non pros judgment and (2) the court of common pleas erred as a matter of law in opening judgment based on the facts set forth in Williams's petition to open judgment because there were facts in dispute. We will proceed with our analysis keeping in mind that a petition to open judgment is addressed to the equitable powers of the court and the exercise of those powers may not be reversed on appeal absent an abuse of discretion. Toczylowski v. General Bindery Co., 359 Pa. Superior Ct. 572, 519 A.2d 500 (1986).
Before a court may grant a petition to open judgment there must be a coalescence of three factors: (1) the petition to open judgment must be timely filed, (2) there must be a reasonable explanation or excuse for the default, and (3) facts constituting grounds for a cause of action must be alleged. Toczylowski; Storm v. Golden, 338 Pa. Superior Ct. 570, 488 A.2d 39 (1985); Buxbaum v. Peguero, 335 Pa. Superior Ct. 289, 484 A.2d 137 (1984); Perri v. Broad Street Hospital, 330 Pa. Superior Ct. 50, 478 A.2d 1344 (1984); Walker v. Pugliese, 317 Pa. Superior Ct. 595, 464 A.2d 482 (1983); Lewis v. Reid, 244 Pa. Superior Ct. 76, 366 A.2d 923 (1976).*fn2
[ 122 Pa. Commw. Page 633]
Therefore, our first consideration must be to determine whether the petition to open judgment was timely filed. Although it may be relevant, the length of the delay is not determinative. Rather, in making our assessment we must look to the reasonableness of the explanation for the delay. See Versak v. Washington, 359 Pa. Superior Ct. 454, 519 A.2d 438 (1986); Alston v. Philadelphia Electric Co., 337 Pa. Superior Ct. 46, 486 A.2d 473 (1984).*fn3
In the matter herein, Williams offers no reason as to why he waited thirty-six days before filing his petition to open judgment. Instead, Williams asserts that he timely filed his petition. Where no explanation has been offered as to why a party has waited thirty-six days before filing a petition to open judgment, we must hold that the petition was untimely filed. See McCoy v. Public Acceptance Corp., 451 Pa. 495, 500, 305 A.2d 698, 700 (1973) (delay of two and one-half weeks); Pappas v. Stefan, 451 Pa. 354, 358, 304 A.2d 143, 146 (1973) (delay of fifty-five days); Texas Block House Fish and Game Club v. Bonnel Run Hunting and Fishing Corp., 388 Pa. 198, 203, 130 A.2d 508, 511 (1957) (delay of twenty-seven days after becoming aware of default judgment); Bottero v. Great Atlantic and Pacific Tea Co., 316 Pa. Superior Ct. 62, 70, 462 A.2d 793, 797-98 (1983) ...