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May 12, 2026
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Velocity Investments, LLC v. Marte, No. 25-437 (C.C.P. Berks County Apr. 2, 2026) (Gavin, J.)

Under the law, the old adage that it is better to ask for forgiveness than for permission does not hold true. In a memorandum opinion issued on April 2, 2026, Judge James E. Gavin of the Berks County Court of Common Pleas addressed a question of first impression regarding service of process: whether an exception to the general rule requiring sheriff service is self-executing, or whether a party must first obtain court approval before invoking it. The Court found the exception is not self-executing, set aside the defective service, and directed the Appellant to seek court authorization before proceeding under the exception.

Key takeaways:

• A party wishing to invoke Rule 400(b)(4)’s alternative to sheriff service must first obtain court authorization via a special order under Rule 430.
• The proponent of an exception to a general rule bears the burden of proving it applies.
• Due process was never intended to be convenient, and shortcuts require judicial oversight.
• Practitioners must understand the difference between final orders, interlocutory appeals as of right, and interlocutory appeals by permission, and follow the correct procedure.
• The Berks County bench has limited patience for collection counsel who treat procedural rules as suggestions rather than requirements.

Background

Velocity Investments, LLC, filed a collection complaint seeking $4,645.45 from Wilfredy Marte. After unsuccessful sheriff service, the Appellant reinstated the complaint and used a third-party process server without obtaining court authorization. The Court questioned the propriety of service and, after briefing, found it improper and struck it without prejudice.

The Court also commented on the broader conduct of counsel in debt collection cases, observing that lawyers handling these matters “treat the foregoing rules as little more than invitations or mere suggestions that they are free to ignore as opposed to directives they are required to follow.” The dilatory conduct, the Court noted, was “fundamentally unfair” to defendants left with “the specter of ‘pending litigation’ hanging over” them.

Is the Rule 400(b)(4) exception self-executing?

Rule 400(a) of the Pennsylvania Rules of Civil Procedure states plainly that “original process shall be served within the Commonwealth only by the sheriff.” The rules governing service of process “must be strictly followed,” there is no presumption as to the validity of service, and “jurisdiction of the court over the person of the defendant is dependent upon proper service having been made.”

Rule 400(b)(4) provides an exception: original process may be served by a competent adult in a civil action where there is complete diversity of citizenship between all plaintiffs and all defendants, and at least one defendant is a citizen of Pennsylvania. Velocity argued that this exception is “self-effectuating” and that it was the Plaintiff, and the Plaintiff alone, who gets to decide whether the exception applies and to determine that there is complete diversity. The Court disagreed.

The proponent of an exception bears the burden

Although Judge Gavin acknowledged that no case law directly addressed whether this particular exception is self-executing, he drew upon a well-established principle across Pennsylvania jurisprudence: the proponent of an exception to a general rule bears the burden of proving the exception applies. The Court cited several analogous scenarios: a party invoking a hearsay exception bears the burden of proving it applies, see Millcreek Twp. Sch. Dist. v. Erie Cnty. Bd. of Assessment Appeals, 140 A.3d 737, 741 (Pa. Commw. Ct. 2016); a plaintiff asserting fraudulent concealment as an exception to the statute of limitations bears the same burden, see Fine v. Checcio, 870 A.2d 850, 860 (Pa. 2005); and so too does a PCRA petitioner claiming a timeliness exception, see Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007).

Viewed collectively, the Court concluded, “each of the foregoing suggests a broad policy exists that a party seeking to invoke the powers of an exception to a general rule bears the burden of proving the applicability of the exception.”

Proposed amendment bolsters the Court’s reasoning

Adding further support to the Court’s analysis, Judge Gavin noted that the Pennsylvania Supreme Court’s Civil Procedural Rules Committee had recently proposed amending Rule 400(b)(4) to require that the amount in controversy meet the federal jurisdictional limit outlined in 28 U.S.C. § 1332(a). The Committee explained that the exception “was intended to apply to those cases for which removal to Federal court was possible because the requirements for Federal diversity jurisdiction were met,” but that “some litigants have been serving original process by a competent adult in certain cases that technically comply with the rule’s stated requirements but were never its intended focus.” As the Court pointedly observed, “Clearly, the Appellant’s case was never intended to fall within the scope of Rule 400(b)(4) of the Pennsylvania Rule of Civil Procedure due to the amount in controversy.”

Given the “important and fundamental rights of due process associated with the service of original process,” the Court held that a party seeking to deviate from the general rule and invoke the exception under Rule 400(b)(4) must submit a request for service through a special order of court pursuant to Rule 430 of the Pennsylvania Rules of Civil Procedure. As the Court emphasized, “due process was never intended to be convenient.”

The appeal

The Court also suggested the appeal should be quashed. The order was not final, and the Appellant remained free to reinstate and obtain proper service, nor did it qualify as an interlocutory order appealable as of right or a collateral order. The Appellant also failed to follow Chapter 13 of the Pennsylvania Rules of Appellate Procedure for seeking permission to appeal an interlocutory order, which alone requires quashing the appeal. See Patton v. Hanover Ins. Co., 612 A.2d 517, 518–19 (Pa. Super. Ct. 1992).

A copy of the opinion can be found here.