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PA Bulletin, Doc. No. 96-130

THE COURTS

PART I.  GENERAL

[231 PA. CODE CH. 400]

Amendment of Rules 401 and 404 Governing Service of Original Process; Proposed Recommendation No. 133

[26 Pa.B. 428]

   The Civil Procedural Rules Committee has issued Recommendation No. 133 which proposes the amendment of Rules of Civil Procedure 401 and 404 governing service of original process. The recommendation is published in full in the Pennsylvania Bulletin, the advance reports of West's Atlantic and Pennsylvania Reporters, the Philadelphia Legal Intelligencer and the Pittsburgh Legal Journal. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court. All communications should be sent no later than April 12, 1996 to Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, PA 17055.

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] Amended Original Process. [Substitution] Substituted [of] Original Process. Alternative Original Process. Copies for Service.

   (a)(1)  Original process shall be served [within the Commonwealth] upon a defendant within [thirty] one hundred eighty days after the issuance of the writ or the filing of the complaint first naming that defendant.

   Official Note: The amendment of original process under subdivision (b)(2), the substitution of original process under subdivision (b)(3) or the filing of a complaint as alternative original process under subdivision (b)(5) does not extend the time for service upon a party defendant previously named.

   (2)  If service of original process is not made within the required one hundred eighty days, the court, upon motion filed within that period and good cause shown, may extend the time for service for an appropriate period. The court may also provide, if appropriate, for an alternative method of service as provided by Rule 440. If the time for service has been extended and if service is not made within the extended period, the court, upon motion filed within that period and good cause shown, may extend the time for service for one or more additional periods.

   Official Note: [See Rule 404 for the time for service outside the Commonwealth.] Good cause to extend the time for service may be shown by affirmative action taken by the plaintiff to serve original process.

   The plaintiff must act with reasonable diligence to see that the motion is promptly presented to the court if required by local practice.

   (3)  If service of original process is not made within the required one hundred eighty days under subdivision (a)(1) or an additional period of time under subdivision (a)(2) and either a motion to extend the time for service has not been filed within that time period or a motion has been denied, the process shall be deemed never to have been filed.

   (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, 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.]

   Rescinded.

   (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.] Prior to service upon any named defendant, original process may be amended to name a new party 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.] Rescinded.

   (5)  If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff instead of [reissuing] serving the writ may [treat] serve 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].

   [Official 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.]

   (c)  The copy of the original process to be served upon the defendant shall be attested by the prothonotary or certified by the plaintiff to be a true copy.

Rule 404.  Service Outside the Commonwealth.

   Original process shall be served outside the Commonwealth [within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof]:

   [Official Note: For reissuance and reinstatement of original process, see Rule 401(b).]

   (1)  by a competent adult who is not a party in the manner provided by Rule 402(a);

   (2)  by any competent adult by mail in the manner provided by Rule 403;

   (3)  in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction;

   (4)  in the manner provided by treaty; or

   Official Note: A treaty may provide that to effect service a plaintiff must satisfy requirements which are in addition to the procedures specified by this rule.

   (5)  as directed by the foreign authority in response to a letter rogatory or request.

   Official Note: See Rule 401(a) for the time in which to make service.

   Sections 5323 and 5329(2) of the Judicial Code, 42 Pa.C.S. §§ 5323, 5329(2), provide additional alternative procedures for service outside the Commonwealth.

Explanatory Comment

   Recommendation No. 133 proposes amendment of Rules of Civil Procedure 401 and 404 to facilitate making a good faith effort to effectuate service of original process.

Rule 401.  Time for Service. Amended Original Process. Substituted Original Process. Alternative Original Process. Copies for Service

   The thirty-day period for service under present subdivision (a) is to be replaced with a one hundred eighty day period. The one hundred eighty day period for serving a defendant commences upon the filing of the original process naming the defendant. Upon expiration of that period, service may be made only pursuant to an order of court extending the time. The rule provides for the order to be made upon motion filed during the one hundred eighty day period and upon good cause shown. If service is not made during the extended period, the party seeking to make service may obtain further extensions of time in a manner similar to obtaining the initial extension, that is, upon motion filed during the extended period and upon good cause shown. If an extension is not sought or is sought but denied, the process is deemed to have been never filed.

   In light of the revisions to subdivision (a), several amendments to subdivision (b) are proposed. Subdivision (b)(1) is to be rescinded and the practice of reissuing a writ of summons and reinstating a complaint abolished. Similarly, subdivision (b)(4) providing the time for service of a reissued writ or a reinstated complaint is also to be rescinded.

   Subdivision (b)(2) will be revised to delete references to reissuance of the writ and reinstatement of the complaint. The practice of adding a new party defendant prior to service of original process upon any defendant in an action will be continued upon the filing of ''amended original process.'' The filing of amended original process does not extend the time for service upon a party defendant previously named.

   Subdivision (b)(3) providing for a substituted writ or complaint when original process is lost or destroyed will remain unchanged.

   Subdivision (b)(5) providing for alternative original process will be revised by deleting reference to reissuance of the writ or reinstatement of the complaint. The filing of the complaint as alternative process does not extend the time for service under subdivision (a)(1).

Rule 404. Service Outside the Commonwealth

   Rule 404 is revised by deleting references both to the ninety-day period for service outside the Commonwealth and to reissuance of the writ and reinstatement of the complaint. The time for making service of original process prescribed by Rule 401 will apply uniformly, both within and outside the Commonwealth.

By the Civil Procedural Rules Committee

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 96-130. Filed for public inspection February 2, 1996, 9:00 a.m.]



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