THE COURTS
PART I. GENERAL
[231 PA. CODE CHS. 400, 1000, 1300, 1910, 2300, 2950, 2970 AND 3000]
Amendment of Rules Governing Service of Original Process and Other Legal Papers; No. 316 Civil Procedural Rules Doc. No. 5
[29 Pa.B. 3191]
Order Per Curiam:
And Now, this 14th day of June, 1999, the Pennsylvania Rules of Civil Procedure are amended to read as follows:
I. Rules 400, 400.1, 420, 421, 422, 423, 424, and 425, are rescinded.
II. New Rules 400, 400.1, 402.1, 402.2, 402.3, 450 and 451 are promulgated.
III. Rules 402, 403, 410, 1075.1, 1075.4, 1352, 1910.22, 2308, 2958.1, 2973.2, 3111, 3129.2, 3140 and 3283 are amended.
IV. Rules 405, 411, and 412 are amended by the addition of notes.
This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective September 1, 1999.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 400. SERVICE OF ORIGINAL PROCESS
SERVICE GENERALLY Rule 400. Person to Make Service.
Rule 400 is rescinded and new Rule 400 is promulgated to read as follows:
Rule 400. Service. Acceptance of Service.
(a) Service of original process shall be made within the Commonwealth by the persons authorized by Rule 400.2 by handing a copy in the manner provided by Rules 402 through 402.2.
Official Note: Rules 402 through 402.2 govern service upon particular parties.Rule 400(a) insofar as it provides for service of original process by the sheriff or a competent adult who is not a party applies to all courts of the First Judicial District. See the Order of the Supreme Court promulgating the rule.
(b) Service of original process shall be made outside the Commonwealth in the manner provided by Rule 404.
(c) If service cannot be made under the applicable rule, service of original process shall be made in the manner provided by order of court pursuant to Rule 430.
(d) The return of service shall be made in the manner provided by Rule 405.
(e) In lieu of service under these rules, the defendant or the defendant's authorized agent may accept service of original process by filing a separate document which shall be substantially in the form prescribed by Rule 450.
Rule 400.1. Provisions for All Courts of the First Judicial District.
Rule 400.1 is rescinded and new Rule 400.1 is promulgated to read as follows:
Rule 400.1. Person to Make Service. Within the Commonwealth Generally. Within the First Judicial District.
(a)(1) Except as provided in subdivision (b)(1), original process shall be served within the Commonwealth by the sheriff or a competent adult.
Official Note: See Rule 76 for the definition of ''competent adult.'' The definition does not prohibit service by an attorney for a party or an employee of the attorney.Service of original process in domestic relations matters is governed by Rule 1930.4.If original process is to be served by the sheriff in a county other than where the action was commenced, the plaintiff may either deliver the process directly to the sheriff of the county where service is to be made or deliver the process to the sheriff of the county where the action was commenced who shall deputize the sheriff of the county where service may be made.(2) Subdivision (a)(1) shall apply to all courts of the First Judicial District.
(b)(1) A court by local rule may provide that original process shall be served within the Commonwealth
(i) by the sheriff or a competent adult in the actions in equity, partition, prevent waste, and declaratory judgment when declaratory relief is the only relief sought, and
(ii) by the sheriff in all other actions.
(2) Subdivision (b)(1) shall not apply to the courts of the First Judicial District.
(c) If original process is to be served in a county other than the county in which the action is pending, it shall be served only by a person authorized to make service in the other county.
Rule 402. [Manner of Service. Acceptance of Service] Service upon Individuals. Adults. Minors. Incapacitated Persons.
(a) Original process may be served upon a defendant who is an adult
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom [he] the defendant resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the [residence of the defendant] hotel, inn, apartment house, boarding house or other place of lodging at which the defendant resides to the [clerk or] manager or other person authorized to accept deliveries of United States mail [of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides]; or
(iii) at any office or usual place of business of the defendant to [his] the defendant's agent or to the person for the time being in charge [thereof].
[(b) In lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document which shall be substantially in the following form:
(Caption)
Acceptance of Service I accept service of the ______ (on behalf of _________________ and certify that I am authorized to do so).
______ _________________ (Date) (Defendant, or Authorized Agent) _________________ (Mailing Address) Official Note: The plaintiff should insert in the first blank the name of the document being accepted, i.e. writ of summons or complaint.When accepting service in person, the defendant would delete the part of the sentence in parentheses.]
(b) If the defendant is a minor or an incapacitated person, original process shall be served
(1) upon the minor or the incapacitated person in the manner prescribed for service of original process upon an adult defendant, or
(2) by handing a copy to the guardian of the minor or incapacitated person.
Official Note: Rule 76 defines ''minor'' and Rule 2026 defines ''guardian.''The plaintiff cannot obtain a valid judgment against a minor until a guardian has been appointed. A judgment obtained without the appointment of a guardian may be vacated and a guardian appointed forthwith, in accordance with Rule 2034. In all instances, the court in appointing a guardian for a minor may require that the guardian be served with copies of the pleadings already served upon the minor or others and may also grant such continuance as is necessary to prepare and present the case of the minor. The court may also make orders extending the time for filing pleadings on behalf of the minor.Rule 2051 defines ''incapacitated person''. Rule 2053 provides for the representation of an incapacitated person who is a defendant by a guardian or a guardian ad litem.
(Editor's Note: Rules 402.1--402.3 are new and are printed in regular type to enhance readability.)
Rule 402.1. Service upon the Commonwealth and Political Subdivisions.
(a) Service of original process upon the Commonwealth or an officer of the Commonwealth shall be made at the office of the named defendant and the office of the Attorney General by handing a copy to the person in charge.
(b) Service of original process upon a department, board, commission or instrumentality of the Commonwealth, or a member thereof, shall be made at the office of the named defendant and the office of the Attorney General by handing a copy to the person in charge.
(c) Service of original process upon a political subdivision shall be made
(1) by handing a copy to
(i) the person in charge at the political subdivision's office of the solicitor or legal department, or
(ii) the person in charge at the office of the political subdivision, or
(iii) an agent duly authorized by the political subdivision to receive service of process, or
Official Note: See Rule 76 for the definition of ''political subdivision.''
(2) by serving the mayor, or the president, chairman, secretary or clerk of the governing body in the manner prescribed by Rule 402(a).
(d) This rule shall not apply to an appeal from an administrative determination, order or decree of such officer, department, board, commission or instrumentality.
Rule 402.2. Service upon Partnerships, Unincorporated Associations, and Corporations and Similar Entities.
(a) As used in this rule,
''association'' means a partnership and all partners named in the action, an unincorporated association or a corporation or similar entity;
''officer'' when referring to an officer of a corporation or similar entity means an executive officer as defined by Rule 2176.
Official Note: Rule 2176 defines executive officer as ''a chairman, president, vice-president, treasurer, secretary, general manager, or any like officer of a corporation or similar entity.''(b) Provided that the person served is not a plaintiff in the action, service of original process upon an association shall be made
(1) by serving any partner, officer, trustee or registered agent of the association in the manner prescribed by Rule 402(a), or
(2) by handing a copy to the manager, clerk or other person for the time being in charge of any regular place of business or activity of the association, or
(3) by handing a copy to an agent authorized by the association in writing to receive service of process for it.
Rule 402.3. Service upon Additional Defendants.
(a) Original process shall be served upon an additional defendant who is not already a party to the action in the same manner as if the additional defendant were an original defendant. Copies of all pleadings filed in the action shall be served with the complaint against the additional defendant.
Official Note: Prior pleadings must be served with the complaint whether the complaint is original process served upon the additional defendant or a pleading served under Rule 440. See Rule 213(b) for the right of an additional defendant to move for a severance and Rule 1006(d) for the right to move for a change of venue.(b) The defendant or additional defendant who has filed a complaint shall serve a copy upon every prior party but need not attach copies of any pleadings previously filed in the action.
Rule 403. Service by Mail.
If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of United States mail requiring a receipt signed by the defendant or [his] the defendant's authorized agent. Service is complete upon [delivery of the mail.] the defendant or the defendant's authorized agent signing the required receipt.
(1) If the mail is returned with notation by the postal authorities that the defendant refused to accept the mail, the plaintiff shall have the right of service by mailing a copy to the defendant at the same address by ordinary mail with the return address of the sender appearing thereon. Service by ordinary mail is complete if the mail is not returned by the postal authorities to the sender within fifteen days after mailing.
(2) If the mail is returned with notation by the postal authorities that it was unclaimed, the plaintiff shall make service by another means pursuant to these rules.
Official Note: The United States Postal Service provides for restricted delivery mail, which can only be delivered to the addressee or [his] the addressee's authorized agent. Rule 403 has been drafted to accommodate the Postal Service procedures with respect to restricted delivery.Rule 405. Return of Service.
* * * * * (b) A return of service shall set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made.
Official Note: See Rule the form of the return when service is made by a person other than the sheriff.* * * * *
SERVICE IN PARTICULAR ACTIONS Rule 410. Real Property Actions.
* * * * * (b)(l) If in an action involving an interest in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in possession of the property. The sheriff or other person making service shall note the service in the return.
* * * * * Rule 411. Actions for Support.
Rescinded.
Official Note: For service of original process in domestic relations matters, see Rule 1930.4.Rule 412. Actions for Custody, Partial Custody and Visitation.
Actions for Divorce or Annulment of Marriage.
Rescinded.
Official Note: For service of original process in domestic relations matters, see Rule 1930.4.
SERVICE UPON PARTICULAR PARTIES Rule 420. Minors.
Rescinded.
Official Note: For service upon minors, see Rule 402(b).
Rule 421. Incapacitated Persons.
Rescinded.
Official Note: For service upon incapacitated persons, see Rule 402(b).
Rule 422. The Commonwealth and Political Subdivisions.
Rescinded.
Official Note: For service upon the Commonwealth and political subdivisions, see Rule 402.1.
Rule 423. Partnerships and Unincorporated Associations.
Rescinded.
Official Note: For service upon partnerships and unincorporated associations, see Rule 402.2.
Rule 424. Corporations and Similar Entities.
Rescinded.
Official Note: For service upon corporations and similar entities, see Rule 402.2.
Rule 425. Additional Defendants.
Rescinded.
Official Note: For service upon additional defendants, see Rule 402.3.
FORMS (Editor's Note: Rules 450 and 451 are new and are printed in regular type to enhance readability.)
Rule 450. Acceptance of Service. Form.
The acceptance of service provided by Rule 400(e) shall be substantially in the following form:
(Caption)
Acceptance of Service I accept service of the ______ (on behalf of _________________ and certify that I am authorized to do so).
______ _________________ (Date) (Defendant, or Authorized Agent) _________________ (Mailing Address) Official Note: The plaintiff should insert in the first blank the name of the document being accepted, i.e. writ of summons or complaint.When accepting service in person, the defendant would delete the part of the sentence in parentheses.
Rule 451. Return of Service by Person Other than the Sheriff. Forms.
(a) The return of service shall be substantially in one of the following forms when service is made by a person other than the sheriff upon an individual defendant (subdivision (b)), upon an association (subdivision (c)) or by mail (subdivision (d)). Appropriate adjustments may be made to the forms to accommodate methods of service or parties not covered.
Official Note: Appropriate adjustments will be required, for example, when service is made upon a minor, an incapacitated person, the Commonwealth or a political subdivision or where service is made by posting property or pursuant to a special order of court.(b) The return of service upon an individual defendant served pursuant to Rule 402 and Rule 404(1) shall be substantially in the following form:
Caption
RETURN OF SERVICE
(Adult Individual) The undersigned makes the following return of service: _________________ (document) was served upon ______ (Defendant) on ______ (Date) at ______ (Time) __ . m. o'clock at ______ (Address), ______ (Municipality), ______ (County), Pennsylvania, by handing a copy
____ to the defendant.
____ at defendant's residence or place of lodging
to an adult member of the family:
_________________
(name and relationship of family member)to an adult person in charge of the residence:
_________________
(name of person in charge)to the manager or other person authorized to accept deliveries of United States mail:
_________________
(name of manager or person and title or position)____ at defendant's office or usual place of business to the defendant's agent or to the person for the time being in charge:
_________________
(name of agent or person in charge)
Signature and Affidavit I, ______, certify that I am eighteen years of age or older and that I am not a party to the action or an employee or relative of a party.
I verify that the statements made in this affidavit and return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
Date: _____
_________________
Person Making the Return(c) The return of service upon a partnership, unincorporated association, corporation or similar entity served pursuant to Rule 402.2(b) and 404(1) shall be substantially in the following form:
Caption
RETURN OF SERVICE
(Partnership, Unincorporated Association, Corporation or Similar Entity) The undersigned makes the following return of service: _________________ (Document) was served upon _________________ (Defendant) on ______ (Date) at ______ (Time) __ . m. o'clock at ______ (Address), ______ (Municipality), ______ (County), Pennsylvania, by handing a copy as follows, to a person not a plaintiff in the action:
__ to any partner, officer, trustee or registered agent:
_________________.
(Name of partner, officer, trustee or registered agent)__ at the partner's, officer's, trustee's or registered agent's residence or place of lodging to an adult member of the family:
_________________.
(name and relationship of family member)to an adult person in charge of the residence:
_________________.
(name of person in charge)to the manager or other person authorized to accept deliveries of United States mail:
_________________
(name of manager or person and title or position)__ at the partner's, officer's, trustee's or registered agent's office or usual place of business to the agent or to the person for the time being in charge:
_________________.
(name of agent or person in charge)__ at a regular place of business or activity of the association
to any partner, officer, trustee or registered agent of the association:
_________________
(Name of partner, officer, trustee or registered agent)to the manager, clerk or other person for the time being in charge:
_________________
(Name of manager, clerk or other person in charge)__ to an agent authorized by the association in writing to receive service of process for it:
_________________.
(Name of authorized agent)
Signature and Affidavit I, ______, certify that I am eighteen years of age or older and that I am not a party to the action or an employee or relative of a party.
I verify that the statements made in this affidavit and return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
Date: ______
_________________
Person Making the Return(d) The return of service by mail shall be substantially in the following form:
Caption
RETURN OF SERVICE
(United States Mail) The undersigned makes the following return of service: _________________ (Document) was mailed to _________________ (Defendant) on ______ (Date) at ______ (Time) __. m. o'clock at _________________ (Address) , ______ (Municipality), ______ (County), Pennsylvania:
__ The signed receipt is attached.
__ The mail, refused and returned, is attached. A copy mailed to the defendant at the same address by ordinary mail with the return address of the sender appearing thereon has not been returned within fifteen days after mailing.
Signature and Affidavit I, _________________, certify that I am a competent adult not a party to the action.
I verify that the statements made in this affidavit and return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
Date: _____
_________________
Person Making the Return
CHAPTER 1000. ACTIONS AT LAW
Subchapter E. ACTION IN REPLEVIN
CONFORMING AMENDMENTS Rule 1075.1. Writ of Seizure Upon Notice and Hearing.
* * * * * (d) The motion and notice of the hearing may be served by [any competent] an adult by leaving a copy at the address endorsed on an appearance or prior pleading, but if there is no such endorsement, then in the manner provided by [Rule] Rules 402[(a)] through 402.2 for the service of original process or, if that is not possible, then by any other means reasonably calculated to give notice. The return of service shall be governed by Rule 405.
* * * * * Rule 1075.4. Service of the Writ of Seizure.
(a) The sheriff shall serve the writ of seizure, together with a copy of the complaint and motion for ex parte issuance of the writ if the writ has been issued ex parte, upon the defendant and any person not a party who is found in possession of the property, in the manner provided by [Rule] Rules 402[(a)] through 402.2 for service of original process and shall take possession of the property.
* * * * *
CHAPTER 1300. COMPULSORY ARBITRATION
Subchapter B. FORMS Rule 1352. Form of Writ of Summons in Action of Ejectment.
The writ of summons in an action of ejectment [shall be directed to the sheriff and] shall be in substantially the following form:
Commonwealth of Pennsylvania
County of______
(Caption) To [the Sheriff of the County of] ______: (Name(s) of Defendant(s))
[You are directed to notify ______, (Name(s) of Defendant(s)) the defendant(s),] You are hereby notified that ______[, (Name(s) of Plaintiff(s)) the plaintiff(s),] has (have) commenced an action of ejectment against you which [said defendant(s) is (are)] you are required to defend.
This action concerns the land here described: ______(Describe land)
___________________________
___________________________If this land is in your possession [of anyone] but you are not named above as a [party] defendant, you are [directed to notify him that he has] hereby notified that you have been added as a defendant and [is] are required to defend this action.
_________________
(Name of Prothonotary (Clerk))Date: ______
Seal of the CourtBy ______
(Deputy)
CHAPTER 1910. ACTIONS FOR SUPPORT Rule 1910.22. Attachment of Income.
* * * * * (d)(1) The order of attachment shall be substantially in the form prescribed by Rule 1910.31 and shall be served upon the obligor's employer by [a] an [competent] adult in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 governing service of original process or by registered mail, return receipt requested. Service by mail is complete upon the return of the registered mail receipt personally signed by the employer or other evidence of service satisfactory to the court.
* * * * *
CHAPTER 2300. INTERPLEADER BY DEFENDANTS Rule 2308. Service of process on interpleaded claimants.
* * * * * [(d) [Rescinded].]
Official Note: Original process may be served in any county of the Commonwealth under Rule 402. Subdivision (d) of this rule is therefore rescinded as obsolete.
CHAPTER 2950. CONFESSION OF JUDGMENT FOR MONEY Rule 2958.1. Notice Served Prior to Execution.
* * * * * (b) The notice shall be served
(1) upon a defendant in the judgment who has not entered an appearance
(i) by the sheriff or by a competent adult [who is not a party to the action] in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 for the service of original process upon a defendant, or
Official Note: See Rule 76 for the definition of ''competent adult''.
* * * * *
CHAPTER 2970. CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY Rule 2973.2. Notice Served Prior to Execution.
* * * * * (b) The notice shall be served
(1) upon a defendant in the judgment who has not entered an appearance
(i) by the sheriff or by a competent adult [who is not a party to the action] in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 for the service of original process upon a defendant, or
Official Note: See Rule 76 for the definition of ''competent adult''.
* * * * *
CHAPTER 3000. JUDGMENTS
Subchapter D. ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY Rule 3111. Service of the writ on garnishee; effect.
(a) The writ shall be served by the sheriff upon the garnishee in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 except as otherwise provided by Rules 3112 and 3113. The sheriff shall furnish the garnishee with an additional copy of the writ for each defendant. [If the] A garnishee who is served [was] but not named in the writ [he] shall be added as a garnishee and return made accordingly.
* * * * * Rule 3129.2. Notice of sale; handbills. written notice; publication.
* * * * * (c) The written notice shall be prepared by the plaintiff, shall contain the same information as the handbills or may consist of the handbill and shall be served at least thirty days before the sale on all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1.
(1) Service of the notice shall be made
(i) upon a defendant in the judgment who has not entered an appearance and upon the owner of the property.
(A) by the sheriff or by a competent adult [who is not a party to the action] in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 for the service of original process upon a defendant, or
Official Note: See Rule 76 for the definition of ''competent adult''.
* * * * * Rule 3140. Notice by garnishee.
* * * * * (b) Upon filing [his] answers to interrogatories, the garnishee shall promptly forward a copy to the defendant.
(c) A copy is forwarded within the requirement of this rule when it is delivered to the defendant by [a] an [competent] adult at any place within or without the Commonwealth in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 for service of original process or when it is mailed to the defendant by registered mail directed to [his] the defendant's last known address.
Subchapter E. ENFORCEMENT OF JUDGMENTS IN SPECIAL ACTIONS
PROCEEDINGS UNDER SECTION 8103(A) TO FIX FAIR MARKET VALUE OF REAL PROPERTY SOLDRule 3283. Service.
(a) The petition shall be served
* * * * * (2) upon any other respondent
(i) by the sheriff or a competent adult [who is not a party to the action] in the manner prescribed by [Rule] Rules 402[(a)] through 402.2 for service of original process, or
Official Note: See Rule 76 for the definition of ''competent adult''.
* * * * *
Explanatory Comment The rules of civil procedure governing service of original process have been amended to provide that service may be made in all actions by a competent adult who is not a party unless a court by local rule requires that service be made by the sheriff only. Most of the amendments are directed to effecting this revision. In a few instances, rules are made gender neutral.
Rule 400. Service. Acceptance of Service.
Rule 400 which formerly governed the person who may make service has been rescinded. New Rule 400 governing service and acceptance of service provides an overview of service and is substituted in place of the former rule.
Subdivision (a) of new Rule 400 governs service within the Commonwealth and cross-refers to new Rule 400.1 governing the person who may make service and Rules 402 through 402.2 governing the manner of service. Subdivisions (b), (c) and (d) of new Rule 400 cross-refer, respectively, to service outside the Commonwealth under Rule 404, service pursuant to special order of court under Rule 430, and the return of service under Rule 405.
Alternatively, a defendant may accept service of original process and subdivision (e) so provides. The form of the acceptance of service is found in new Rule 450 at the end of the service chapter.
Rule 400.1. Person to Make Service. Within the Commonwealth Generally. Within the First Judicial District.
Rule 400.1, which formerly governed the person who may make service within the first Judicial District, has been rescinded. New Rule 400.1 is substituted in place of the former rule and provides for the person who may make service not only in the First Judicial District but in the remainder of the Commonwealth as well.
Subdivision (a)(1) of the new rule provides for service by the sheriff or a competent adult. The manner in which these persons make service is provided by Rules 402 through 402.2. Previously, the alternative of service by a competent adult was limited to Philadelphia County under former Rule 400.1.
Subdivision (a)(1), however, is qualified by subdivision (b)(1) which allows a local court of common pleas to ''opt out'' of service by a competent adult under subdivision (a)(1) and to restrict service of process to service by the sheriff only. The rule provides no guidelines but leaves the decision to the discretion of each judicial district. Assuming that some courts will exercise this option, it will be necessary for attorneys who commence actions requiring out-of-county service to learn if the particular county requires service by the sheriff only and to have service effected accordingly. Under subdivision (c), an attorney must look to the county where service is to be made to determine whether service must be made by the sheriff alone or may be made by either the sheriff or a competent adult.
Subdivisions (a)(2) and (b)(2) are applicable only to the First Judicial District, Philadelphia County. The Supreme Court of Pennsylvania on July 2, 1998 extended service by competent adult under former Rule 400.1 to all courts of the First Judicial District (Philadelphia County) and subdivision (a)(1) continues this policy. Subdivision (b)(2) prohibits the courts of the First Judicial District from promulgating a local rule ''opting out'' of service by competent adult and restricting service to the sheriff under subdivision (b)(1).
Rule 402. Service upon Individuals. Adults. Minors. Incapacitated Persons
Rule 402(a) continues to state the basic procedures for personal service upon adult individuals by the traditional method of handing a copy to specified persons.
Prior to amendment, subdivision (a)(2)(ii) provided for service upon ''the clerk or manager of the. . .place of lodging at which the defendant resides''. In place of the ''clerk or manager'', service is made under the revised rule upon the ''manager or other person authorized to accept deliveries of United States mail.''
As previously noted, former subdivision (b) of Rule 402 governing acceptance of service is moved to Rule 400 as subdivision (e) and the form of the acceptance to new Rule 450. New Rule 402(b) is derived from Rules 420 and 421, combining service upon minors and incapacitated persons in one subdivision. These revisions merely change the location of the provisions.
Rule 402, therefore, governs service upon all individual defendants: adults, minors and incapacitated persons.
Rule 402.1. Service upon the Commonwealth and Political Subdivisions
New Rule 402.1 governs service upon the Commonwealth and political subdivisions and is derived from former Rule 422.
Subdivision (a) of the new rule is based upon subdivision (a) of former Rule 422. It is limited, however, to the Commonwealth or an officer of the Commonwealth as a defendant. Service of original process upon a particular ''department, board, commission or instrumentality of the Commonwealth, or a member thereof'' is governed by subdivision (b) which requires service at the office of the particular Commonwealth entity being sued and at the office of the Attorney General.
Subdivision (c) governing service upon a political subdivision is divided into paragraphs (1) and (2). Paragraph (1) provides three alternatives for service by handing a copy of the process to three categories of persons. The first alternative for service under subdivision (c)(1)(i) is new: handing a copy to ''the person in charge at the political subdivision's office of the solicitor or legal department.'' The office mentioned is an office maintained by the political subdivision as the office of its solicitor or legal department and not the private office of an attorney retained to perform legal duties. The remaining two categories of persons upon whom service may be made are ''the person in charge at the office of the political subdivision'' under new subdivision (c)(1)(ii) and ''an agent duly authorized by the political subdivision to receive service of process'' under new subdivision (c)(1)(iii). These provisions are derived from former Rule 422(b)(2) and (1) respectively. Subdivision (c)(2) is derived from former Rule 422(b)(3) and provides for service by handing a copy of process ''to the mayor, or the president, chairman, secretary or clerk of the governing body in the manner prescribed by Rule 402(a).'' Subdivision (c)(2) contains two revisions to the prior practice. First, the phrase ''of the governing body'' replaces the language of former Rule 422(b)(3): ''of the tax levying body thereof, and in counties where there is no tax levying body, the chairman or clerk of the board of county commissioners.'' Second, the new rule contains the phrase ''in the manner prescribed by Rule 402(a).'' Whereas service under subdivision (c)(1) is limited to handing a copy of process to the persons specified, the manner of service under subdivision (c)(2) is not so limited but encompasses both handing a copy to the specified persons under Rule 402(a)(1) and substituted service under Rule 402(a)(2).
Rule 402.2. Service Upon Partnerships, Unincorporated Associations, and Corporations and Similar Entities
New Rule 402.2 combines present Rules 423 governing service on partnerships and unincorporated associations and Rule 424 governing service on corporations and similar entities. One service rule governs all three of these types of ''associations.'' The new rule uses the term ''association'' and defines it to include all of the entities mentioned. With one exception, the manner of service remains unchanged.
The one change in practice is in the area of corporations and similar entities. Formerly, service upon a corporation might be made under Rule 424(a)(1) by handing a copy of the process to ''an executive officer, partner or trustee of the corporation or similar entity.'' However, these persons could not be served by means of substituted service under Rule 402(a)(2) by handing a copy of the process, for instance, to a member of the household or the manager of the place of lodging. Under new Rule 402.2(b), service may be made pursuant to any of the provisions of Rule 402(a), i.e., by personal or substituted service, irrespective of whether the party to be served is a partnership, an unincorporated association or a corporation or similar entity. Rule 402.2 describes the manner of service upon an association by handing a copy to specified persons. It is incorporated by reference into Rule 400(a) governing service within the Commonwealth and Rule 404(1) governing service outside the Commonwealth. However, Rule 402.2 is not a limitation upon service outside the Commonwealth. Rules 400(b) and 404 provide for service outside the Commonwealth without restriction upon the type of defendant as an individual or an association and Rule 404 specifies five alternative methods of service, including service by mail.
Rule 402.3. Service Upon Additional Defendants
New Rule 402.3 is derived from former Rule 425. The language of the new rule has been made gender neutral.
Rule 403. Service by Mail
Present Rule 403 governing service by mail is revised in two respects. First, subdivision (a) explicitly states what was previously implied, that the mail to be used is United States mail. Second, subdivision (a) formerly provided that service was complete upon delivery of the mail. The revised subdivision provides that service is complete ''upon the defendant or the defendant's authorized agent signing the required receipt.''
Rule 405. Return of Service
Rule 405 is revised by the addition of a note to subdivision (b) calling attention to new Rule 451 providing forms of return of service when service is made by a person other than the sheriff. Not all instances of service are provided as there are three forms relating to service upon adult individuals, service upon associations and service by mail. New Rule 451(a) advises that appropriate adjustments should be made when service is made upon a defendant or by a method not covered by the forms.
Rule 410. Real Property Actions
Subdivision (b)(1) is revised to accommodate service by competent adult by referring to the sheriff ''or other person making service.''
Conforming Amendments
Several rules cross-refer to service in the manner prescribed by prior Rule 402(a), thus incorporating its provisions for service. The cross-reference is broadened where applicable to include Rule 402 in its entirety and new Rules 402.1 and 402.2.
By the Civil Procedural
Rules CommitteeEDWIN L. KLETT,
Chairperson
[Pa.B. Doc. No. 99-999. Filed for public inspection June 25, 1999, 9:00 a.m.]
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