The Safe Harbor

For Your Legal Needs

A Notary Public is an individual appointed and commissioned by the Secretary of the Commonwealth of Pennsylvania.  Notaries as a public official have been granted powers pursuant to the Notary Public Law of 1953, as amended (57 P.S. § 147 et seq.) such as administering oaths and affirmations, taking affidavits and sworn verifications, taking acknowledgements, issuing certifications, taking depositions, and issuing protests of dishonored negotiable instruments .

Notaries, however, are not empowered to give legal advice, unless the notary is an attorney licensed by the state to practice law.  This includes explaining to the customer what to say in an affidavit or affirmation, interpreting or explaining the documents, or telling the customer what forms are used.  A Notary Public is also not allowed to draft legal documents, such as wills, deeds, or contracts.

The history of the public office of a notary is a long one.  In Roman times, the office began with scribes, who were recorders of facts and judicial proceeding, copiers and transcribers.  Later in England and in Colonial America, notaries authenticated official documents and record keeping.  During this time, Notaries played an important role in commerce as being an honest third party among conflicting sides.  Notaries played a large role in early history of Pennsylvania such as acknowledging and recording land records, including the transfer of ownership of land from King Charles II of England to William Pennsylvania that later became Pennsylvania.

In Pennsylvania, the first law that governed notaries was enacted in 1791 and notaries were appointed by the governor.  The Notary Public Law of 1953 transferred the authority to appoint Notaries Public from the Governor to the Secretary of the Commonwealth and updated the procedures to be appointed in the state.

The authority to appoint Notaries Public was transferred from the Governor to the Secretary of the Commonwealth by the Notary Public Law of 1953.  The 1953 statute also streamlined the procedure for being appointed a Notary Public in the state.  The legislature enacted the major amendments to the Notary Public Law of 1953 through Act 151 of 2002 and became effective July 1, 2003.

A Notary Public and must be of good character, integrity and ability and functions as an administrative agent of the state.  The amendments of Act 151 of 2002 required education for some notaries and outlined requirements and standards for customer identification and gave authorization for electronic notarization.

Two of the most important practices of a Notary Public are to require the customer to personally appear before the Notary who shall “know through personal knowledge or have satisfactory evidence that the person appearing before the Notary is the person described in and who is executing the instrument”. (57 P.S. §158.1)

The case of Bessenyei et. al v. Vermillion, Inc. et al, C.A. No. 7572-VCN (DE) illustrates one of the consequences of a signature that was improperly notarized.  The Plaintiffs are shareholders of Vermillion, Inc., a Delaware corporation.  The individual Defendants, certain current and former board of directors, amended Vermillion’s bylaws to reduce the size of the Board from seven to six Members, leaving only one seat up for elections at the June annual stockholders meeting instead of the original two.  The Plaintiffs allege that the individual Defendants breached their fiduciary duties by eliminating the board seat.  The Defendants filed a Motion to Dismiss pursuant to the Court of Chancery Rule 41 (b) after the Defendants learned that the signature of one of the Plaintiffs had been improperly notarized in Pennsylvania in that when each of the documents were signed; Bessenyei, was not in the United States.

The Court of Chancery Rule 3(aa) requires that all complaints and related pleadings be accompanied by a notarized verification from a qualified individual for each named plaintiff.  All three challenged verifications purport to contain representations by Bessenyie that they are “SWORN TO” by Bessenyei and “subscribed before” Jennifer L. Bennett, a Pennsylvania Notary Public.  Signatures on Delaware pleadings notarized outside Delaware are sufficient as long as the Notary signature is valid under the law in the foreign jurisdictions in which it was signed.  In the case of Bessenyei et. al v. Vermillion, Inc. et al., the Defendants allege that although the verifications were signed by Bessenyei , they were improperly notarized by Bennett and therefore invalid as verifications.

Pennsylvania law, P.S.158.1, requires that an “officer notarizing the instrument shall know through personal knowledge or have satisfactorily evidence that the person who is appearing before the Notary is the person described in and who is executing the instrument.” The Delaware case cites several Pennsylvania cases which support the fact that the signatory must appear before the Notary.  (In re Bokey’s Estate, 194 A2d 194,198 (Pa 1963), Commw v. Frey, 392 A.2d 798,799 (Pa Super 1978).  Additionally, “Pennsylvania courts have also concluded that it is unlawful in Pennsylvania to notarize documents that are not signed in the Notary’s presence.”  C.A. No. 7572-VCN, 7 (DE).  Pennsylvania courts regard a failure “to sign the affidavit before the Notary” as “defect that cannot be characterized as merely ‘technical’”, and considers dismissal of an improperly-notarized complaint in an appropriate remedy.”  C.A. No. 7572-VCN, 7 (DE), Bolus v Saunders,833 A.2d 266,270 (Pa Commw 2003).

In the case of Bessenyei et. al v. Vermillion, Inc. et al, Bessenyei failed to appear before the Notary, yet his signature was notarized by Bennett in Pennsylvania.  In fact, Bessenyei was not in the United States at the time

Bennett notarized  Bessenyei’s  signature.  Under  Pennsylvania law,  Bessenyei‘s  verifications  are  therefore

invalid for the Delaware Court of Chancery Rule 3(aa).

The Delaware Court continued its analysis to determine if the Defendant’s effort to obtain a dismissal of this action turns on whether the collective conduct of Bessenyei, Bennett, Goggin, the attorney who employs Bennett, legal assistant and Pennsylvania Notary Public, and Plaintiff’s Delaware attorney rises to the level of a deliberate violation of the Delaware Rules of Court that would warrant an involuntary dismissal of the action.

The Plaintiffs argue that Bennett relied upon a credible witness exception in Pennsylvania Notary Law.  The Delaware Court opined, under Pennsylvania Notary Law, having a credible witness does not excuse a signatory from appearing before the Notary.  A credible witness can attest to the identity of the witness, however, the person is still required to appear before the Notary for the Notary to be valid.  Bennett testified that she notarized the documents because Goggins, a Pennsylvania attorney directed her to do so.

Goggins claimed that he relied on Bennett’s determination that notarizing the document of someone outside her presence was permitted.  According to the Rules of Professional Conduct in both Delaware and Pennsylvania “a lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligation of the lawyer.” Del. Lawyers’ Rules of Prof”l Conduct R. 5.3(b); Pa Rules of Prof’l Conduct R.5.3(b).  The Delaware Court in its opinion referred to a November 2010 e-newsletter issued by Pennsylvania Disciplinary Board of the Supreme Court of Pennsylvania which states an “attorney who directs or encourages an employee-notary to notarize documents not signed in the notary’s presence commits serious misconduct and could face discipline.”  Further, Goggins, with full knowledge that the jurat on the documents incorrectly stated that it had been “SWORN TO and subscribed before” the Notary by Bessenyei, transmitted the documents to Delaware counsel to be used in this litigation.

The Delaware Court, because of the three invalid verifications and conduct by those involved, not only dismissed Bessenyei as a Plaintiff, but also dismissed the action before the Court.

In this case, an Acknowledgement by Attorney at Law was not used by Bennett.  In order to do so, the attorney, Goggins, would have been present “at arm’s length” when Bessenyei signed the documents.  In Pennsylvania, the Uniform Acknowledgment Act allows an attorney, and only an attorney, to witness an individual’s signature and then appear before a notary to testify that the attorney witnessed the signature.  The person who signed is not required to appear before the notary.  The attorney must certify to the notary that the person was present before the attorney and took the acknowledgment.  The jurat for an Acknowledgement by the Attorney at Law must include the identity of the attorney, including the name and Supreme Court identification number of the attorney, the date on the document is prior to or the same as the current date, and the attorney signed the document as a subscribing witness, indicating the attorney was present and witnessed the individual’s signature.

On October 9, 2013, Governor Tom Corbett signed into law P.L. 609, No. 73, Amending Titles 42 (Judiciary and Judicial Procedure) and 57 (Notaries Public) of the Pennsylvania Consolidated Statutes, enacting uniform laws on attestation in the areas of unsworn  foreign  declarations and notarial  acts,  making  editorial  changes, making related repeals, and abrogating a regulation.  The Act added new chapter 62 to Title 42, titled “Uniform Uunsworn Foreign Declarations Act which apples to an unsworn declaration by a declarant who, at the time of making the declaration, is physically located outside the boundaries of the United States.  Chapter 3, titled “Revised Uniform Law on Notarial Acts” was added to Title 57.  Act 73 will be implemented in several phases.  Effective immediately on October 9, 2013 is the Department of State’s authority to make regulations to implement the new law; the Department of State’s authority to approve basic and continuing notary education courses; and section 329.1 of the Act relating to fees of Notaries Public.  The remainder of the Act will be effective 180 days after the Department of State’s notice of approval of courses under 57 Pa.C.S. Section 322(b) and (c) to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.

Key changes include:

 

  • New Notaries will be required to pass an examination to obtain their first commission.
  • All Notaries seeking reappointment must complete continuing education (even those previously exempt) but will have the option of more varied continuing education courses to ensure the maintenance and enhancement of skill, knowledge and competency.
  • A new Notarial Act of witnessing or attesting a signature is defined in the law. Personal appearance before the notary public by the signator continues as a requirement.
  • Basic forms of certificates for most Notarial Acts are set forth in the law .
  • Specific prohibitions on use of the term “notario publico” and practicing law and related new advertising requirements are new in the law. The term “notario public” in most Latin and Spanish speaking countries means that the individual is an attorney and authorized to practice law and give legal advice. A Notary Public is prohibited from practicing law and giving legal advice.  The new law gives the public increased transparency when a Notary Public is required and what they can and cannot do.
  • Increased enforcement and administrative penalties available to the Department for violation of the Act
  • Changes to record keeping journals of the Notary.

The Pennsylvania Department of State had published proposed rules for implementation of the new law and is revising the proposed rules after receiving comments to the proposed rules.

The York PA law firm of Hoffmeyer & Semmelman, LLC has two Notary Publics on staff and can meet your needs should you require a document to be notarized.  If you have questions concerning the documents, our attorneys are available to explain the documents to you, including any legal obligations you may incur by signing such a document.  Our Notaries are available without an appointment; however a scheduled consult with an attorney may be necessary if you require an explanation of the document.  You may contact us by telephone at 717-846-8846 or by e-mail at [email protected].