Subchapter C. FICTITIOUS NAMES

§ 17.201. General checklist for registering fictitious names.

 (a)  The following is a checklist for registration of a fictitious name:

   (1)  Submit a written request to the Department to determine whether the proposed name is available for use.

   (2)  If the proposed name is available, submit a properly completed and executed Form DSCB:54-311 (Application for Registration of Fictitious Name).

   (3)  Submit a check or money order payable to the Department of State in the amount of $52. Cash is not accepted.

   (4)  If the registering entity is one which includes an individual party, officially publish a notice as required by §  17.208 (relating to official advertising of fictitious names involving individual parties), either prior to or after the application is submitted to the Department. Proofs of publication may not be submitted to the Department.

 (b)  The Department will process the Form DSCB:54-311, will endorse the fact and date of filing thereon, and return the form to the applicant. A separate certificate will not be issued.

 (c)  The filing of fictitious name documents in the Office of the Clerk of the Court of Common Pleas or Prothonotary of the several counties of this Commonwealth has been abolished. Amendments to, withdrawals from and cancellations of filings originally made in a county row office under one or more of the statutes specified in §  17.212(d) (relating to effect of registration) shall be made only in the Department.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Business—A commercial or professional activity.

   Entity—An individual, corporation, association, partnership, joint-stock company, business trust, syndicate, joint adventureship or other combination or group of persons.

   Fictitious name—An assumed or fictitious name, style or designation other than the proper name of the entity using the name. The term includes the name of an association, general partnership, business trust, syndicate, joint adventureship or similar combination or group of persons.

 (a)  In 54 Pa.C.S. §  303(a) (relating to scope of chapter), it is provided that one or more entities may elect to register a fictitious name under 54 Pa.C.S. Chapter 3 (relating to Fictitious Names Act) for the purpose of establishing a public record of their relationship to a business or other activity carried on under or through the fictitious name.

 (b)  In 54 Pa.C.S. §  303(b) (relating to mandatory registration) it is provided that:

   (1)  Except as provided in paragraph (2), an entity which either alone or in combination with another entity conducts business in this Commonwealth under or through a fictitious name is required to register the fictitious name under this subchapter and to amend the registration whenever necessary to maintain the accuracy of the information disclosed thereby.

   (2)  Paragraph (1) does not apply to:

     (i)   Nonprofit or professional activities.

     (ii)   Activities which are expressly or impliedly prohibited by law from being carried on under a fictitious name.

     (iii)   A limited partnership which is registered in the Department under RULPA or under corresponding provisions of prior law. The preceding sentence does not apply to an entity which includes the limited partnership as a participant unless the entity is itself such a limited partnership.

     (iv)   Unincorporated association.

     (v)   Electing partnership existing under Chapter 87 of the code (relating to electing partnerships).

   The provisions of this §  17.203 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

 (a)  Although the registration of a fictitious name under this subchapter does not automatically prevent another party from using the same or a confusingly similar name for association use, the law does not permit the Department to register a fictitious name which conflicts with an existing association name. Specifically, in 54 Pa.C.S. §  311(e) (relating to registration), it is provided that a fictitious name may not be the same as or confusingly similar to:

   (1)  The name of a domestic corporation, or a foreign corporation authorized to do business in this Commonwealth, or the name of a corporation or other association registered under 54 Pa.C.S. Chapter 5 (relating to corporate and other association names). See §  17.1(c) (relating to general standards) unless the name is available or is made available for use under the provisions or procedures of §  17.2 or §  17.3 (relating to appropriation of the name of a senior corporation; and use of a confusingly similar name).

   (2)  The name of a limited partnership organized under RULPA.

   (3)  The name of an administrative department, board or commission or other agency of this Commonwealth.

   (4)  A name the exclusive right to which is at the time reserved by another person in the manner provided by statute.

 (b)  In 54 Pa.C.S. § §  311(f) and 312(c) (relating to registration; and amendment) it is provided that a fictitious name, whether set forth in an original application or changed by amendment:

   (1)  Is subject to § §  17.6, 17.8 and 17.9(b) or (d) (relating to banking names; educational names; and professional names).

   (2)  May not contain the word ‘‘cooperative’’ or an abbreviation thereof unless it is subject to Part II Subpart D of the code (relating to cooperative corporations).

   (3)  May not contain a word or phrase not permitted by law to be filed under 54 Pa.C.S. Chapter 3 (relating to Fictitious Names Act) without governmental consent unless there is submitted to the Department written evidence of the consent.

 In 54 Pa.C.S. §  311(b) (relating to registration) it is provided that a registered fictitious name:

   (1)  May not contain a corporate designator such as ‘‘corporate,’’ ‘‘incorporated’’ or ‘‘limited’’ or a derivation or abbreviation thereof unless the entity or at least one entity named in the application for registration of the fictitious name is a corporation. The use of the word ‘‘company’’ or a derivation or abbreviation thereof or the words ‘‘association,’’ ‘‘fund’’ or ‘‘syndicate’’ by a sole proprietorship, a partnership or a corporation is permissible.

   (2)  Is not required to contain a corporate designator, notwithstanding the fact that some or all of the persons interested therein are corporations. This authorization is not to be construed to limit or affect personal liability otherwise existing of shareholders of a corporation to persons who deal with the corporation without knowledge of its status as such.

 In 54 Pa.C.S. § §  311(c) and 312 (relating to registration; and amendment) it is provided that an applicant for registration of a fictitious name or an amendment thereof may designate one or more parties who are authorized to execute Form DSCB:54-312/313 (Application for Amendment, Cancellation or Withdrawal—Fictitious Name) on behalf of then existing parties to the registration.

   The provisions of this §  17.206 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

 (a)  In 54 Pa.C.S. §  311(d) (relating to registration) it is provided that:

   (1)  If the application for registration relates to an entity which includes one or more participants which are partnerships or other entities composed of two or more parties, it is not necessary for each ultimate party to be named in and to execute the application. Only the constituent participants are required to be named in the application. A partner or other authorized representative of a participant may execute the application on behalf of the participant.

   (2)  If the application for registration relates to a trust or similar entity, it is not necessary for each beneficial owner or similar ultimate party to be named in and to execute the application. Only the trustees of the trust or the governing body of the similar entity are required to be named in and to execute the application.

   (3)  Otherwise, the application for registration is required to be executed by each individual party thereto and, in the case of any other entity, by the entity. As to execution by associations who are participants, see §  13.8(a) (relating to execution).

   (4)  The application of a party may be executed by the attorney-in-fact of the party. See §  13.8(e).

 (b)  In 54 Pa.C.S. §  312(b) (relating to amendment) it is provided that Form DSCB:54-312/313 (Application for Amendment, Cancellation or Withdrawal-Fictitious Name) may be executed by doing one of the following:

   (1)  In the same manner as an original application for registration of a fictitious name, including a party who is thereby withdrawing.

   (2)  By the agent designated under §  17.206 (relating to agent for effecting amendments) and by an additional party to the registration.

 (c)  In 54 Pa.C.S. §  313(b) (relating to cancellation or withdrawal) it is provided that Form DSCB:54-312/313 may be executed in the same manner as provided in subsection (b) in the case of an application for amendment of fictitious name registration. Form DSCB:54-312/313 may be executed solely by the withdrawing party in the case of a withdrawal of a fictitious name reservation.

 (a)  Proofs of publication may not be submitted with the Form DSCB:54-311 (Application for Registration of Fictitious Name) or another form submitted under this subchapter. In 54 Pa.C.S. §  311(g) (relating to registration) it is provided that an entity which includes an individual party is required to officially publish in the county in which the principal office or place of business of the entity is or, in the case of a proposed entity, is to be located notice of its intention to file or the filing of an application for registration of a fictitious name. The notice may appear prior to or after the day upon which the application is filed in the Department and shall be kept with the permanent records of the business and shall set forth briefly:

   (1)  The fictitious name.

   (2)  The address, including street and number, if any, of the principal office or place of business of the business to be carried on under or through the fictitious name.

   (3)  The names and respective addresses, including street and number, if any, of the persons who are parties to the registration.

   (4)  A statement that an application for registration of a fictitious name is to be or was filed under 54 Pa.C.S. (relating to names).

 (b)  For the purposes of subsection (a), the term ‘‘officially publish’’ means publish in two newspapers in the English language in the proper county, one of which shall be the legal newspaper, if any, designated by the rules of court for the publication of legal notices or, if there is no legal newspaper, in two newspapers of general circulation in the county. When there is only one newspaper of general circulation in a county, advertisement in that newspaper is sufficient. The notice shall be published one time in the appropriate newspaper. The terms ‘‘newspaper,’’ ‘‘legal newspaper’’ and ‘‘newspaper of general circulation’’ are defined in 45 Pa.C.S. §  101 (relating to definitions). See §  19.3 (relating to name of commercial registered office provider in lieu of registered address).

 (c)  In 45 Pa.C.S. §  307 (relating to effect of failure to advertise when required) it is provided that no legal proceeding or the like, in which notice is required to be given by official or legal advertising, will be binding upon an interested person unless the advertising is effected and proof of publication is filed of record in the matter or proceeding. The proofs referred to in this subsection may not be submitted to, and will not be received and filed by, the Department, but shall be kept with the permanent records of the business as provided in subsection (a).

   The provisions of this §  17.208 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

 (a)  Every registrant of a fictitious name is required by 54 Pa.C.S. §  321(a) (relating to decennial filings required) decennially, during the year 2000 and each year thereafter divisible by ten, to file in the Department Form DSCB:54-321 (Decennial Report of Continued Existence-Fictitious Name).

 (b)  Subsection (a) does not apply to a registrant which during the preceding 10 years has made a filing with the Department under this subchapter under or with respect to the fictitious name in question.

 (c)  On January 1 of the year following the year during which a report is required to be filed under subsection (a), every fictitious name with respect to which no report has been filed during the immediately preceding year is deemed under 54 Pa.C.S. §  321(c) to be no longer registered under 54 Pa.C.S. Chapter 3 (relating to Fictitious Names Act). The registration may thereafter be restored only by the filing under this subchapter of an original application for registration of fictitious name on Form DSCB:54-311 (Application for Registration of Fictitious Name).

   The provisions of this §  17.209 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

 Whenever a decennial filing is required to be made in the Department under §  17.209 (relating to decennial filings), the Department under section 132(d) of the code (relating to functions of Department of State) shall, not earlier than the November 1 of the year—for example, 1999, 2009, and so forth—prior to the commencement of the decennial year wherever practicable, give notice by mail to the registrant of the decennial filing requirement. The notice shall be accompanied by appropriate application blanks or forms. Failure by the Department to give notice to a registrant, or failure by a registrant to receive notice, of a decennial filing requirement does not relieve a registrant of the obligation to make the decennial filing.

 (a)  An entity which has failed to register a fictitious name as required by §  17.203 (relating to voluntary and mandatory registration) is not permitted by 54 Pa.C.S. §  331(b) (relating to contracts entered into by entity using unregistered fictitious name) to maintain an action in a tribunal of this Commonwealth until the entity has complied with this subchapter. An action may not be maintained in a tribunal of this Commonwealth by a successor or assignee of the entity on a right, claim or demand arising out of a transaction with respect to which the entity used the fictitious name until the entity, or an entity which has acquired all or substantially all of its assets, has complied with this subchapter. The failure of an entity to register a fictitious name as required by §  17.203 does not impair the validity of a contract or act of the entity and does not prevent the entity from defending an action in a tribunal of this Commonwealth.

 (b)  Before an entity may institute an action in a tribunal of this Commonwealth on a cause of action arising out of a transaction in respect to which the entity used a fictitious name prior to the date of the registration of the fictitious name, or after the date its registration under this subchapter was cancelled or otherwise terminated as to the entity, the entity is required by 54 Pa.C.S. §  331(b) to pay to the Department for the use of the Commonwealth a civil penalty of $500.

 (c)  The penalties of subsections (a) and (b) are not applicable if there has been substantial compliance in good faith with this subchapter or the corresponding provisions of prior law.

   The provisions of this §  17.211 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

 (a)  In 54 Pa.C.S. §  332(a) (relating to effect of registration), it is provided that registration under this subchapter imparts no legal right to the registering entity other than that the conducting of business by it under a fictitious name will not result in the penalties provided by §  17.211 (relating to effect of nonregistration on enforceability of contracts).

 (b)  The registration required under §  17.211 is in addition to other acts required of a corporation prerequisite to its doing business in this Commonwealth under the code and related provisions of law. The provisions of 54 Pa.C.S. Chapter 3 (relating to Fictitious Names Act) or this subchapter will not be construed as relieving an association of a duty under another statute.

 (c)  In 54 Pa.C.S. §  303(c) (relating to scope of chapter), it is provided that the registration of a fictitious name under this subchapter will not be a defense to an action or proceeding brought to enforce a law which expressly or impliedly prohibits an activity from being carried on under a fictitious name.

 (d)  Fictitious names registered under the former provisions of the following statutes are under 54 Pa.C.S. §  304 (relating to effect of registration under prior statutes) deemed to be registered under this subchapter:

   (1)  The act of June 28, 1917 (P. L. 645, No. 227), relating to individual fictitious names (Repealed).

   (2)  The act of May 24, 1945 (P. L. 967, No. 380), referred to as the Fictitious Name Act (Repealed).

   (3)  The Fictitious Corporate Name Act (Repealed).

   The provisions of this §  17.212 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

   This section cited in 19 Pa. Code §  17.201 (relating to general checklist for registering fictitious names).

FORMS

§ 17.251. Official forms.

 The following official forms have been promulgated under this subchapter and appear in Appendix A:

   Form DSCB:54-311 (Application for Registration of Fictitious Name).

   Form DSCB:54-312/313 (Application for Amendment, Cancellation or Withdrawal-Fictitious Name).

   Form DSCB:54-321 (Decennial Report of Continued Existence-Fictitious Name).

   The provisions of this §  17.251 adopted June 22, 1973, effective June 23, 1973, 3 Pa.B. 1164; reserved January 27, 1984, effective January 28, 1984, 14 Pa.B. 336; amended April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993. Immediately preceding text appears at serial page (87024).