ARTICLE: Pa. Rules of Civil Procedure Should be Amended to Allow for Email as a Permissible Means of Communication Across the Board

The below article of mine was recently published in the August 27, 2026 edition of the Pennsylvania Law Weekly.

Pa. Rules of Civil Procedure Should be Amended to Allow for Email as a Permissible Means of Communication Across the Board

August 27, 2026

By

Daniel E. Cummins

Would you believe, in this digital day and age, that Pennsylvania lawyers, if they so desired, can refuse to communicate via email with other lawyers in personal injury lawsuits? That such an attorney could insist that written communications between counsel be by regular mail or fax only? Sounds absurd, doesn't it?

Well, believe it or not, the Pennsylvania Rules of Civil Procedure currently allow attorneys to take such a position and some are doing so.

Generally speaking, the applicable Rules of Civil Procedure in this regard do allow for the service, or communication, of legal papers other than original process by fax machines and emails, but only where the parties have agreed to such communication methods or where an email address and/or fax number was included in the attorney’s provided contact information in an entry of appearance or on prior legal papers filed by that attorney in the matter.

It is rare, but some attorneys, having an apparent fear of technology and just to be irksome, refuse to communicate with opposing counsel via email in civil litigation matters. Instead, they insist that all written communications be made via letters sent by regular mail or by fax.

This issue may also come up in other scenarios. Some attorneys resort to utilizing the applicable rules in this regard as a vexatious weapon when they get cornered in one aspect or another in a case. For example, even after earlier communicating in a case with opposing counsel via email, the nonmoving attorney faced with a motion to compel may assert that the motion should be denied on the basis that the non-moving attorney never agreed to communicate via email. Their silly, but possibly hyper-technically correct argument then becomes that they were never properly served with the motion, or even the discovery requests at issue, because the requests were provided to them via email.

Now that we are more than a quarter of a century into the 21st century, the time has come for a change with respect to the Pennsylvania Rules of Civil Procedure regarding the service of legal documents other than the original process. These rules on the permissible methods service of legal papers have become outdated and result in inefficiency and unnecessary costs.

In a land of paperless law offices, where the overwhelming majority of lawyers and their staff, like the rest of society, use email as the preferred form of communication, the Rules of Civil Procedure should be amended to allow for the use of email as a permitted means of communication.

With email as a quick, valid alternative, the archaic requirement under the rules requiring law firms to use paper for the time-consuming and annoying process of printing out letters in order to send them by fax is just silly. Moreover, a requirement that volumes and volumes of papers be utilized to produce discovery responses, medical records, exhibits, or motions and briefs that can be easily and freely delivered electronically is needlessly time-consuming and costly. The need to buy reams of paper and pay postage to send volumes of paper enclosures when such items can be sent efficiently and free of charge via email is totally unnecessary. The time for change to the rules applicable to service of legal papers has arrived.


Applicable Rules of Civil Procedure

Under Rule of Civil Procedure 440, which is titled “Service of Legal Papers Other Than Original Process,” the service of legal papers other than original process is only by way of hand delivery, regular mail, or facsimile. Notably, that Rule does not allow for communication by way of email. As such, it appears that Pa.R.C.P. 440 has become archaic in this digital age where communications by email have become the norm in all walks of life.

Pennsylvania Rule of Civil Procedure 205.4, which covers the “Electronic Filing and Service of Legal Papers,” touches upon the issue of communications by email.

Under Pa.R.C.P. 205.4(g)(1)(ii), attorneys are allowed to serve documents, other than original process, by fax or email, but only in limited circumstances. That rule provides that email can only be used in civil litigation matters where the parties have agreed to such a communication method or where an email address has been included by the attorneys involved on their entries of appearance or in the contact information included in any prior legal paper filed by the attorneys in the action.

Rules Are Slow to Catch Up With the Times

History shows that the amendments to the Pennsylvania Rules of Civil Procedure typically take a while to catch up with the change in time of the various types of communication that have developed over the years. Take for example, the rise of communication by facsimile machines. Commentators note that the use of facsimile machines came into vogue in the early 1980s.

Yet, although the use of fax machines became common in the early 1980s, the amendments of Pennsylvania Rules of Civil Procedure regarding the service of legal papers other than original process did not allow for the use of facsimile transmission to serve such papers until approximately 1993 in the federal courts and 1998 in the Pennsylvania state courts.

The Federal Rules of Civil Procedure were amended in 1993, which was approximately 13 years after the use of fax machines to communicate became the norm.

It took even longer in the Pennsylvania state courts for the Rules of Civil Procedure to catch up. It was not until Aug 3. 1998, that a specific amendment was made to Pa. R.C.P. 440 to allow for fax communications. At the time of that amendment, service by facsimile transmission became permissible only where the attorneys agreed to utilize that form of communication or where an attorney had provided a fax number in a filed entry of appearance.

Commentators have otherwise noted that the use of email became standard business practice during the 1990s. By the late 1990s, the use of email widely replaced the use of faxes as the commonly utilized form of quick written communications.

However, it was not until several years later until 2001 that the Federal Rules of Civil Procedure were amended to allow for service by electronic means, including email, provided that the recipient gave written consent to such communications in advance.

As the technology evolved, these Federal Rules of Civil Procedure were further amended to authorize electronic service through the court’s electronic/filing system as a uniform national practice. These amendments took place on Dec. 1, 2018, which was nearly 20 years after the use of email seemed to become the norm as a form of communication in the world.

With regards to the even slower evolution of the separate Pennsylvania state Rules of Civil Procedure, those rules were amended to allow for service of papers other than original process by email only if an email address was explicitly included on a prior entry of appearance or legal paper filed in the action by the recipient attorney, or by the written agreement of the parties. As noted above, these allowances were permitted under Pa. R.C.P. 205.4(g), which went into effect on July 1, 1999.

Currently in Pennsylvania, there are only a number of county courts that utilize electronic filing. As such, there is no uniform, statewide allowance for service of legal papers other than original process through county court electronic filing systems.

In fact, some of the county court electronic systems that have been adopted do not even have a mechanism under which an electronically filed document submitted to the court is also automatically served on the parties involved in the action. This leads to uncertainty in the bar as some attorneys assume that, if a county court has electronic filing, there must also be electronic service of any documents filed on all counsel in all instances.

In the end, since it went effective over a quarter of a century ago, Pa.R.C.P. 205.4 has not been amended to allow for email to be freely utilized as a valid form of communication in all civil litigation matters in all instances.

Using the Rules as a Weapon

While almost all attorneys across the commonwealth of Pennsylvania appear to be willing and able to utilize email as a proper means of communication, believe it or not, there are still some holdouts who still inexplicably refuse to utilize email for communications with opposing counsel during the course of the litigation.

There are also other attorneys who resort to using the technicalities in the current Rules of Civil Procedure to assert, after the fact, that they have not been properly served with legal papers or communications in accordance with the Pennsylvania Rules of Civil Procedure because the document was served by email as opposed to being sent via fax or regular mail.

More specifically, such a scenario can arise when an attorney is hit with a motion to compel and is facing trouble or sanctions in light of the same. Such an attorney, in addition to having already failed to comply with the Rules of Civil Procedure in other aspects, may also resort to asserting that they were not properly served with either the discovery requests or the motion to compel at issue because it was served upon them by email.

Some attorneys making this argument do so, even though that attorney may have already otherwise previously communicated by email for every other aspect of the case. Yet, suddenly, when such attorneys are faced with the threat of a motion, all of a sudden, assert that they never agreed to accept email service of documents. They may also point out that they did not include their email address to their contact information listed in any entry of appearance or previous filing they submitted to the court.

Such hyper-technical positions do not further the proper practice of law and the rules should be changed to prevent such arguments.

Time for a Change

Given that the federal courts have a nationwide rule in place that recognizes email as a valid form of communication and a valid form of service of documents other than original process, the Pennsylvania Rules of Civil Procedure should also be amended and updated to allow for the same.

Currently, even though the use of email has become universal in both society and the legal field over the past 25 years, the current wording of the Pennsylvania Rules of Civil Procedure provides that email is a proper form of communication in civil litigation only if the parties agree to the same or if the opposing party had included their email address in their contact information in their entry of appearance or in some other filing with the court.

The Pennsylvania Rules of Civil Procedure should be amended to make it permissible, across the board, for litigating attorneys to communicate with one another via email, including with respect to the service of legal documents other than service of process. In its present form, the wording of the Rule is subject to possible abuse. Perhaps the Civil Rules Committee of the Pennsylvania Supreme Court can review this need for an update to Pa.R.C.P. 205.4 and work towards such a change.

Furthermore, now that email has become the ordinary means of communication in society, there would be no harm caused by such an amendment. Rather, such an amendment would further the interests of efficiency and the reduction of costs in civil litigation matters. It can be easily predicted that, if a survey were to be taken of the members of the Pennsylvania civil litigation Bar on the topic, there would be overwhelming support for an amendment of the rules to allow for the use of email communications as permissible and acceptable.

Last but certainly not least, an amendment to the above Rules of Civil Procedure allowing for the use of email as a valid form of communication in all aspects of civil litigation would make the rules consistent with recent changes in the Pennsylvania Rules of Professional Conduct placing an affirmative duty on all Pennsylvania attorneys to maintain their competence which includes keeping up with the use of technology in the practice of law for the benefit of their clients.

Daniel E. Cummins is the managing partner at Cummins Law in Clarks Summit, Pennsylvania. He is also the sole creator of the Tort Talk blog at www.TortTalk.com.  Contact him at dancummins@cumminslaw.net.

Reprinted with permission from the August 27, 2026 edition of the "The Pennsylvania Law Weekly © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.