In Re: Order Amending Rule 400 of the Pennsylvania Rules of Civil Procedure ( 2022 )

CIVIL PROCEDURAL RULES COMMITTEE
ADOPTION REPORT
Amendment of Pa.R.Civ.P. 400
On January 18, 2022, the Supreme Court amended Pennsylvania Rule of Civil
Procedure 400 to add a category of actions in which original process may be served either
by the sheriff or a competent adult. 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.
Pursuant to a request, the Committee examined the holding in Encompass Ins.
Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d Cir. 2018), concerning the
removal of actions from state to federal court and permitting pre-service or “snap” removal
pursuant to 28 U.S.C. § 1441. Section 1441(a) provides that a civil action brought in a
state court may be removed to federal court where there is federal subject matter
jurisdiction, including where there is complete diversity of citizenship between all plaintiffs
and all defendants. Section 1441(b) states the “forum defendant” exception: an action
otherwise removable on the basis of diversity jurisdiction “may not be removed if any of
the parties in interest properly joined and served as defendants is a citizen of the State in
which the action is brought.” 28 U.S.C. § 1441(b) (emphasis added).
To obviate the constraints of the “forum defendant rule”, a practice has developed
in which defendants will remove actions commenced in state court to federal district court
after filing suit, but before service has been effectuated on the in-state defendant. The
advent of electronic access to court dockets in state court has increased the opportunity
for defendants to monitor the filing of lawsuits before service has been effectuated and to
make a determination whether to remove to federal court before the in-state defendant
has been served.
The propriety of this procedural maneuver was the subject of Encompass Ins. Co.
In that case, the defendant agreed to accept electronic service of process instead of
requiring formal service of the complaint. See id. at 150. However, when the plaintiff
then filed suit against the defendant in the plaintiff’s home state and sent the defendant a
copy of the filed complaint and a service acceptance form via email, counsel for defendant
refused to accept service and thereafter removed the action to federal
court. Id. Interpreting the statutory language, the Third Circuit Court of Appeals
concluded that the plain language of Section 1441(b) does not prevent removal to federal
court on the basis of diversity jurisdiction when the forum defendant has not yet been
served. The Third Circuit concluded that any change to the statutory language should be
appropriately addressed by the legislative branch. Id. at 153 n. 4.
The Committee recognized that the delay between the filing of the complaint and
service of original process provides the opportunity for “snap” removal. As reported to
the Committee, the method of original service available to plaintiffs can be a significant
factor in the magnitude of that delay. For example, employing a private process server
permits prompt, plaintiff-directed service on defendants whereas the timing of sheriff-
effectuated service varies widely within Pennsylvania. The Committee focused its efforts
on reducing this potential inconsistency in statewide practice as it relates to “snap”
removal.
The Committee observed that Pa.R.Civ.P. 400(a) provides that the sheriff must
serve original process of civil actions within the Commonwealth. Pa.R.Civ.P. 400(b) sets
forth certain, discrete civil actions for which, in addition to service by the sheriff, original
process within the Commonwealth may be served by a competent adult. These include
civil actions in which the complaint includes a request for injunctive relief, perpetuation of
testimony, appointment of a receiver, partition, and declaratory judgment when
declaratory relief is the only relief sought. Yet, Pa.R.Civ.P. 400.1 carves out an exception
for the service of original process in Philadelphia County; service may be made either by
the sheriff or a competent adult for all actions commenced in the First Judicial District.
The various means for permissible service of original process in Pennsylvania, as
provided by the current Rules of Civil Procedure, have resulted in disparate delays in that
service, and has led to inconsistent “snap” removal opportunities based upon the county
of filing. To address this disparity, the Committee considered two options to address the
potential delay in service. First, the Committee considered a modest amendment of
Pa.R.Civ.P. 400(b) extending service of original process by a competent adult for the
narrow category of cases impacted by the Encompass Ins. Co. decision. Service by the
sheriff would remain an option. Service by a competent adult would allow for plaintiff-
directed service rather than sheriff-directed service.
Alternatively, the Committee considered an option to remove the category of cases
subject to “snap” removal from operation of Pa.R.Civ.P. 400(b) so that such cases must
also be served by sheriff pursuant to Pa.R.Civ.P. 400(a). However, it rejected this
approach, which seemingly fosters additional delay, because it appeared contrary to the
purpose of the Rules to obtain speedy determinations of actions. See, e.g., Pa.R.Civ.P.
126.
The Committee published the proposed amendment of Pa.R.Civ.P. 400 for
comment. See 50 Pa.B. 3573 (July 18, 2020). The Committee received four comments
supporting the proposal. A suggested revision to augment the rule to state that the filing
of a petition for removal operates to join and serve a defendant was not incorporated into
the proposal. Accordingly, the Committee made no changes to the proposal following
publication.
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In sum, the amendment of Pa.R.Civ.P. 400(b) adds a narrow category of cases for
which a competent adult, in addition to the sheriff, may serve original process for any civil
action in which there is a complete diversity of citizenship between all plaintiffs and of all
defendants, and at least one defendant is a citizen of Pennsylvania. The amended rule
is intended to ameliorate “snap” removal and the holding of Encompass Ins. Co.
The amendment becomes effective April 1, 2022.
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