Process Flashcards
How to commence an action in PA state court:
By filing with the prothonotary:
(1) a praecipe for a writ of summons; or
(2) a complaint
When an action is commenced by writ of summons, the defendant can…
Defendant can file a praecipe for the prothonotary to issue a rule upon the plaintiff to file a complaint
If a complaint is not filed within 20 days after services of the rule, the protonotary, upon praecipe of the defendant, shall enter a judgment of non prosse
Who can serve?
- Generally, service in PA must be by the sheriff
- If an action is commenced in one county, but service needs to be made in another, the sheriff of the county where service needs to be made can be deputized
- Exception to service by sheriff:
- actions in equity
- partitions
- declaratory judgments
- custody, visitation, divorce, annulment, support, and protection from abuse
- actions to prevent waste
- actions in Philadelphia
- For these service can be made by any competent person at least 18 years old who is not a party or a relative/ employee of a party
Manner of Service for Individuals
Process may be served:
- By handing a copy to the defendant; or
- By handing a copy
- at the residence of the defendant to an adult member of the family with whom he resided, but if no adult family member is found, then to an adult person in charge of the residence
- to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which the defendant resides; or
- at any office or usual place of business of the defendant to his agent or to the person for the time ebing in charge thereof
For minors and incapacitated persons: rule is the same, but copies can also be handed to their guardian
Manner of Service for Partnerships and Unincorporated Associations
Service may be made on the following, provided they are not themselves a plaintiff:
- Any partner, officer, or registered agent of the partnership or association
- An agent authorized by the partnership or association in writing to recieve service of process; or
- The manader, clerk, or other person for the time being in charge of any redular place of business or activity of the partnership or association
Manner of Service for Corporations and Similar Entities
Service may be made upon an authorized agent or manager, clerk or other person for the time being in charge; or
An executive officer, partner or trustee of the corporation
Manner of Service for the Commonwealth and Political Subdivisions
For the Commonwealth or an officer, board, department or instrumentality of the Commonwealth, service shall be made at the office of teh defendant and the office of the attorney general by handing a hard copy to “the person in charge thereof.”
For a political subdivision, a copy can be handed to an agent authorized to recieve service or the person in charge of the office of the defendant
Service Outside of PA
Allows service
(1) By a competent adults under the manner of the rule for individuals
(2) By mail (persuant to mail rule)
(3) In a manner authorized in the jurisdiction where service is to be made; or
(4) In a manner provided by treaty or as directed by a foreign authority
Service by Mail
Rule 403 allows service by any form of mail requiring a receipt signed by the defendant or his authorized agent.
If the mail is returned as refused by the defendant, the plaintiff can serve by ordinary mail
If the mail is returned as unclaimed, teh plaintiff must attempt service by another authorized means
Service Persuant to Special Order of Court
If service by regular methods fails, plaintiff may move the court for a special order directing the method of service
The motion must explain teh investigation to determine the defendant’s location and the reasons service has failed
Time for Service
Whether case is commenced by writ or complaint, process shall be served within PA within 30 days after issuance of write or filing of complaint; service outside of PA must be served withing 90 days
What happens is service is not made within required time frame?
If service is not made within the applicable time period, the original process needs to be revived, through reissuing the writ or reinstating the complaint
This may be done any number of times, and this restarts the time period for service
Service After Statute of Limitations Expires
Service after statute of limitations expires can commence the action only if the statue is tolled or suspended in the interim.
Tollled only if plaintiff makes good faith effort to effectuate service
A plaintiff’s case will be dismissed only when plaintiffs’ failure to comply with the rules has prejudiced the defendant
Proof of Service/ Return of Service
After service is made ot attempted, sheriff or other person shall make a retuen of service, or if no service can be made a return of no service upon the expiration of the period allowed for service.
This is filed with the prothonotary.
Must include:
- Date, time, place, and manner of service
- Identity of person served
- Any other facts necessary for the court to determine whether proper service has been made
If service done by someone other than the sheriff, the return of service shall be by affidavit
Proof of Service for Service Done by Mail
Proof of service shall include
- Return reciept signed by defendant; or
- If the defendant has refused the mail adn plaintiff has used ordinary mail, the returned letter with the notation that the defendant refused acceptance and an affidavit of sending by ordinary maill
