850 Amendment of rules governing service by a competent adult; no. 313 civil procedural rules doc. no. 5

Title 231--RULES OF CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CHS. 100, 200, 400, 1000, 1910, 1930, 2054, 2950, 2970, 3000 AND 4000]

Amendment of Rules Governing Service by a Competent Adult; No. 313 Civil Procedural Rules Doc. No. 5

[29 Pa.B. 2767]

Order

Per Curiam:

   And Now, this 14th day of May, 1999, the following Pennsylvania Rules of Civil Procedure are amended to read as follows hereto: Rules 76, 234.2, 405, 400.1, 404, 1075.1, 1910.13-1, 1910.13-2, 1910.21-1, 1910.22, 1930.4, 2054, 2958.1, 2973.2, 3129.2, 3140, 3283 and 4009.33.

   Whereas prior distribution and publication of the amendments would otherwise be required, it has been determined that immediate promulgation of the amendments is required in the interest of justice and efficient administration.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective July 1, 1999.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 100.  RULES OF CONSTRUCTION

Rule 76.  Definitions.

   The following words and phrases when used in any rule promulgated by the Supreme Court under the authority of Article V, Section 10(c) of the Constitution of 1968, or of any Act of Assembly, shall have the following meanings, respectively, unless the context clearly indicates otherwise or the particular word or phrase is expressly defined in the chapter in which the particular rule is included:

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   Competent adult--an individual eighteen years of age or older who is neither a party to the action nor an employee or a relative of a party.

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CHAPTER 200.  BUSINESS OF COURTS

Rule 234.2.  Subpoena. Issuance. Service. Compliance. Fees. Prisoners.

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   (b)  A copy of the subpoena may be served upon any person within the Commonwealth by [a competent] an adult.

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CHAPTER 400.  SERVICE OF ORIGINAL PROCESS SERVICE GENERALLY

Rule 400.  Person to Make Service.

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   (b)  In addition to service by the sheriff, original process may be served also by a competent adult [who is not a party] in the following actions: equity, partition, prevent waste, and declaratory judgment when declaratory relief is the only relief sought.

   Official Note: See Rule 76 for the definition of ''competent adult.''

   Service of original process in domestic relations matters is governed by Rule 1930.4.

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Rule 400.1.  Provisions for All Courts of the First Judicial District.

   (a)  In an action commenced in [Philadelphia County] the First Judicial District, original process may be served

   (1)  within the county by the sheriff or a competent adult [who is not a party to the action], or

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   Official Note: See Rule 76 for the definition of ''competent adult.''

   The First Judicial District is comprised of Philadelphia County.

   (b)  In an action commenced in any other county, original process may be served in Philadelphia County by deputized service as provided by Rule 400(d) or by a competent adult [who is not a party to the action].

   Official Note: See Rule 76 for the definition of ''competent adult.''

   (c)  [In an action for protection from abuse, service may be made by any competent adult] Rescinded.

   Official Note: For service in an action for protection from abuse, see Rule 1930.4(b).

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);

   Official Note: See Rule 76 for the definition of ''competent adult.''

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

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CHAPTER 1000.  ACTIONS AT LAW

Subchapter E.  ACTION IN REPLEVIN

Rule 1075.1.  Writ of Seizure Upon Notice and Hearing.

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   (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 402(a) 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.

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CHAPTER 1910.  ACTIONS FOR SUPPORT

Rule 1910.13-1.  Failure or Refusal to Appear Pursuant to Order of Court. Bench Warrant.

   (a)  If a party fails to appear at a conference and/or hearing as directed by order of court, the court may issue a bench warrant for the arrest of the party if it finds

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   (2)  upon the affidavit of a hearing officer or conference officer that

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   (iv)  a competent adult [who is not a party to the action] handed a copy of the court order to the party, and filed an affidavit of service.

   Official Note: See Rule 76 for the definition of ''competent adult.''

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Rule 1910.13-2.  Form of Request for Bench Warrant and Supporting Affidavit. Form of Bench Warrant.

   (a)  Request for a bench warrant pursuant to Rule 1910.13-1 shall be in substantially the following form and shall be attached to the Bench Warrant form set forth in subdivision (b) of this rule:

[CAPTION]

REQUEST FOR BENCH WARRANT AND SUPPORTING AFFIDAVIT

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   2.  The party received the order of court scheduling the conference and/or hearing in the following manner:

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   (d)  A competent adult [who is not a party to this action] handed a copy of the court order to the party. The adult's affidavit of service is attached.

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Rule 1910.21-1.  Civil Contempt. Petition. Service. No Answer Required.

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   (d)  The petition shall be served upon the respondent

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   (3)  by a competent adult [who is not a party to the action]; or

   Official Note: See Rule 76 for the definition of ''competent adult.''

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Rule 1910.22.  Attachment of Income.

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   (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 competent] an adult in the manner prescribed by Rule 402(a) 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.

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CHAPTER 1930.  RULES RELATING TO DOMESTIC RELATIONS MATTERS GENERALLY

Rule 1930.4.  Service of Original Process in Domestic Relations Matters.

   (1)  Persons Who May Serve. Original process in all domestic relations matters may be served by the sheriff or [any] a competent adult [who is not a party to the action]:

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   Official Note:  See Rule 76 for the definition of ''competent adult.''

   (b)  Service in Protection From Abuse Matters. In Protection from Abuse matters only, original process may be served by [any competent] an adult.

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CHAPTER 2050.  INCAPACITATED PERSONS AS PARTIES

Rule 2054.  Actions by and Against Incapacitated Persons. Averments in Plaintiff's Pleadings.

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   (c)  An action in which a defendant is an incapacitated person shall be commenced against the defendant by name in the manner in which a like action is commenced against [a competent] an adult who is not incapacitated.

CHAPTER 2950.  CONFESSION OF JUDGMENT FOR MONEY

Rule 2958.1.  Notice Served Prior to Execution.

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   (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 402(a) for the service of original process upon a defendant, or

   Official Note:  See Rule 76 for the definition of ''competent adult.''

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CHAPTER 2970.  CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY

Rule 2973.2.  Notice Served Prior to Execution.

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   (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 402(a) for the service of original process upon a defendant, or

   Official Note:  See Rule 76 for the definition of ''competent adult.''

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CHAPTER 3000.  JUDGMENTS

Subchapter D.  ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 3129.2.  Notice of Sale. Handbills. Written Notice. Publication.

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   (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 402(a) for the service of original process upon a defendant, or

   Official Note:  See Rule 76 for the definition of ''competent adult.''

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Rule 3140.  Notice by garnishee.

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   (c)  A copy is forwarded within the requirement of this rule when it is delivered to the defendant by [a competent] an adult at any place within or without the Commonwealth in the manner prescribed by Rule 402(a) 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.

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Subchapter E.  ENFORCEMENT OF JUDGMENTS IN SPECIAL ACTIONS

PROCEEDINGS UNDER SECTION 8103(A) TO FIX FAIR MARKET VALUE OF REAL PROPERTY SOLD

Rule 3283.  Service.

   (a)  The petition shall be served

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   (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 402(a) for service of original process, or

   Official Note:  See Rule 76 for the definition of ''competent adult.''

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CHAPTER 4000.  DEPOSITIONS AND DISCOVERY

ENTRY UPON PROPERTY FOR INSPECTION AND OTHER ACTIVITIES

Rule 4009.33.  Motion for Entry upon Property of a Person not a Party.

   (a)  A motion to permit entry upon property of a person not a party shall begin with the notice prescribed by subdivision (c) and shall describe with reasonable particularity the property to be entered and the activities to be performed. The motion shall be served personally by [a competent] an adult in the same manner as original process. A copy of the motion shall also be served upon all other parties to the action pursuant to Rule 440.

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Explanatory Comment

   The rules of civil procedure governing service of original process and other legal papers have used the term ''competent adult.'' In certain instances, the term has been used with the restrictive language ''who is not a party to the action.''

   The Supreme Court of Pennsylvania has amended Definition Rule 76 by adding the following definition: '''competent adult' means an individual eighteen years of age or older who is neither a party to the action or an employee or a relative of a party.'' In view of this new definition, the rules of civil procedure which used the term ''competent adult who is not a party to the action'' have been amended by deleting as unnecessary the restrictive language ''who is not a party to the action.'' These rules using the term ''competent adult'' will be governed by the new definition. The rules which used the term ''competent adult'' without the restrictive language have been amended by deleting the word ''competent,'' thus continuing to permit service by an adult without further restriction.

By the Civil Procedural Rules Committee

EDWIN L. KLETT,   
Chairman

[Pa.B. Doc. No. 99-850. Filed for public inspection May 28, 1999, 9:00 a.m.]