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PA Bulletin, Doc. No. 22-3

THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[231 PA. CODE CH. 400]

Order Amending Rule 401 of the Pennsylvania Rules of Civil Procedure; No. 725 Civil Procedural Rules Docket

[52 Pa.B. 10]
[Saturday, January 1, 2022]

Order

Per Curiam

 And Now, this 16th day of December, 2021, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published for public comment at 50 Pa.B. 3575 (July 18, 2020):

 It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 401 of the Pennsylvania Rules of Civil Procedure is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective April 1, 2022.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 400. SERVICE OF ORIGINAL PROCESS

SERVICE GENERALLY

Rule 401. Time for Service. Reissuance, Reinstatement, and Substitution of Original Process.

 (a) Original process shall be served within the Commonwealth within 30 days after the issuance of the writ or the filing of the complaint.

 Note: See Rule 404 for the time for service outside the Commonwealth.

 (b)(1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, or a copy thereof, shall continue its validity by [reissuing the writ or reinstating the complaint, by writing thereon ''reissued'' in the case of a writ or ''reinstated'' in the case of a complaint] designating the writ as reissued or the complaint as reinstated.

 (2) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint only if the writ or complaint has not been served on any defendant.

 Note: A new party defendant cannot be added to a reissued writ or reinstated complaint if service has been completed on a defendant already named in the writ or complaint. For cases involving multiple defendants, a new party defendant cannot be added to a reissued writ or reinstated complaint if service has been completed on any defendant already named in the writ or complaint.

 If a new party defendant cannot be added pursuant to this rule, other procedures are available. See Rule 229 to discontinue the action and to start a new action; Rule 1033 to amend the caption of a pleading by agreement of the party or by leave of court; and Rule 2232 to seek leave of court for an order joining a defendant.

 (3) A substituted writ may be issued or a substituted complaint filed upon praecipe stating that the former writ or complaint has been lost or destroyed.

 (4) A reissued, reinstated, or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement, or substitution.

 (5) If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff, instead of reissuing the writ, may treat the complaint as alternative original process and as the equivalent for all purposes of a reissued writ, reissued as of the date of the filing of the complaint. Thereafter the writ may be reissued, or the complaint may be reinstated as the equivalent of a reissuance of the writ, and the plaintiff may use either the reissued writ or the reinstated complaint as alternative original process.

 Note: If the applicable time has passed after the issuance of the writ or the filing of the complaint, the writ must be reissued or the complaint reinstated to be effective as process. Filing or reinstatement or substitution of a complaint, which is used as alternative process under this subdivision, has been held effective in tolling the statute of limitations as the reissuance or substitution of a writ.

ADOPTION REPORT

Amendment of Pa.R.Civ.P. 401

 On December 16, 2021, the Supreme Court amended Pennsylvania Rule of Civil Procedure 401 to update the rule to accommodate electronic filing systems with regard to the reissuance of a writ of summons and the reinstatement of a complaint, and to clarify when a new defendant may be added to a reissued writ or reinstated complaint. The Civil Procedural Rules Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained herein are those of the Committee, not the Court.

 Pa.R.Civ.P. 401 provides that original process must be served within the Commonwealth no later than 30 days after the issuance of a writ of summons or the filing of a complaint. If service is not completed within the 30 days, the rule provides procedures for the reissuance of a writ of summons and the reinstatement of a complaint to continue its validity.

Rule 401(b)(1)

 The Committee received two requests for rulemaking to clarify subdivision (b) in two respects. Subdivision (b)(1) requires the prothonotary, upon praecipe and presentation of the original process, to write on the original process ''reissued'' in the case of a writ, or ''reinstated'' in the case of a complaint when a party seeks to continue the validity of original process. The first requestor suggested that subdivision (b)(1) may conflict with the capabilities of electronic filing systems and should be updated or clarified to address electronically filed documents. Specifically, there was a question as to how a prothonotary can ''write'' on original process that is an electronically filed document.

 Preliminarily, the Committee agreed that the literal reading of the word ''write'' could cause confusion when applying the rule to electronically filed documents. Although some prothonotary offices have a practice of affixing an electronically generated ''Re-issued'' or ''Reinstated'' stamp on the electronic document, it was not apparent that all prothonotary offices using electronic filing would have this capability. As a result, subdivision (b)(1) has been amended to require the prothonotary to ''designate'' rather than ''write'' on the original process, or a copy thereof, presented for reissuance or reinstatement. The amended language is intended to be sufficiently expansive to allow prothonotaries to comply with the rule for electronically filed documents.

 This amendment of subdivision (b)(1) was not published for comment because it was intended to clarify the rule as it relates to electronically filed documents and would not otherwise change current practice or procedure.

Rule 401(b)(2)

 The second request questioned the parameters for when a new defendant may be added to a reissued writ or reinstated complaint. Subdivision (b)(2) provides: ''A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint.'' Pa.R.Civ.P. 401(b)(2). The requestor pointed out that self-represented plaintiffs read this subdivision to authorize adding a new defendant simply by reissuing the writ or reinstating the complaint without first considering the procedural posture of the case, including whether service has been made on any of the originally named defendants. The requestor observed that, on its own, a literal reading of Pa.R.Civ.P. 401(b)(2) suggested that a new party defendant can be added at any time upon the reissuance of a writ or reinstatement of a complaint; neither the rule nor its explanatory comment provide context as to its application.

 To address the ambiguities in this subdivision, the Committee proposed an amendment to provide that a new defendant may be named in a reissued writ or reinstated complaint only if the writ or complaint has not been served on any originally named defendant. Second, a proposed note was added indicating that a new defendant cannot be added pursuant to this rule if service of the writ or complaint has been completed on a defendant already named in either type of original process. Further, the note specifically indicates that, when there are multiple defendants named in the original document, adding a new defendant cannot be accomplished if service has been completed on any of the original defendants. The second paragraph of the proposed note directed the reader to other Rules of Civil Procedure that permit adding a new party depending on the procedural posture of the case.

 The Committee published the proposed amendment of subdivision (b)(2) for comment. See 50 Pa.B. 3575 (July 18, 2020). The Committee received comments to the proposal, both supporting and opposing the proposed amendment. Following review, the Committee added a citation to Yates v. Pacor, 507 A.2d 1258 (Pa. Super. 1986), in the note to support the amendment's requirement that a new defendant cannot be added to a reissued writ or reinstated complaint if a named defendant has already been served, and must do so by procedures other than Pa.R.Civ.P. 401(b)(2). Although Yates refers to former Pa.R.Civ.P. 1010 (reissuance, reinstatement, and substitution of writ or complaint), the content of that former rule was incorporated as subdivision (b) in Pa.R.Civ.P. 401 when it was adopted in 1986.

 The amendment of Pa.R.Civ.P. 401 becomes effective April 1, 2022.

[Pa.B. Doc. No. 22-3. Filed for public inspection December 30, 2021, 9:00 a.m.]


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