Rule 400(b)(4): Opening the Door to Efficiency in First Legal Service

Scott A. Dietterick    September 13, 2022

Lenders in Pennsylvania foreclosures have traditionally endured the unpredictable nature of employing a sheriff to serve a defendant. Common service delays create conciliation and mediation continuances and forestall judgment entries in likely uncontested matters. However, recent changes to the rules of civil procedure have opened the door for expanded use of private process service (PPS), paving the way for potentially shorter timelines between first legal and judgment. 

In the Encompass case, the Pennsylvania appellate court interpreted federal law to allow defendants to remove their case to federal court, as long as they filed a removal notice before receiving service of process. Coined as “snap removal,” this interpretation created an effective avenue for Pennsylvania defendants to further exploit the usual delays in service through the sheriff, which under Rule 400, was mandatory for most civil actions in all counties except Philadelphia.  

In response, the Committee for Pennsylvania’s rules of civil procedure submitted for approval PA Civ. Pro Rule 400(b)(4), permitting a “competent adult” to efficiently serve in-state defendants sitting in complete diversity, thereby reducing the opportunity for them to seek snap removal. (Complete diversity for purposes of the rule means the lender/plaintiff is incorporated or headquartered in a state other than Pennsylvania, while at least one defendant is a resident of the Commonwealth.) The state Supreme Court approved the amendments, which took effect on April 1, 2022.  

Although initially designed to combat snap removal, a reasonable interpretation of Rule 400(b)(4) permits the use of PPS to serve defendants in most civil actions where diversity exists, eliminating the need to employ the local sheriff. Because PPS meets the legal definition of “competent adult,” mortgage lenders can take advantage of the option whenever complete diversity is established. Moreover, with the ability to serve defendants through a PPS, a facet of the foreclosure process is made significantly more efficient.  

Indeed, the adversarial nature of civil litigation will generate pushback arguments against a plaintiff-centered reading of Rule 400(b)(4). For example, one might be that the rule was not intended for foreclosure or that the mortgaged property location determines venue, and therefore, diversity is not applicable. At the same time, local sheriffs will naturally want to protect against a challenge to their service monopoly. However, any restrictive interpretation cuts directly against the rule’s purpose, which is to end procedural delay, and is antithetical to the plain language of the rule.  

tags: Foreclosure, Legislation, Pennsylvania


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