Name Availability after Act 122 of 2022
Name availability in Pennsylvania has changed dramatically and been greatly simplified with Act 122 of 2022. The repeal of the decennial report and related name availability provisions on January 3, 2023, results in constricted name availability until full implementation of annual reports and administrative dissolutions/cancellations in 2028. However, the rules are much less complicated beginning in 2023.
All language relating to decennial reports and the register of names has been removed from the law with the repeal of 54 Pa.C.S. §§ 501-506. This includes 15 Pa.C.S. § 504 (Effect of failure to make filings), which made a name available if an entity did not file a decennial report when required. Name availability is governed by an amended 15 Pa.C.S. § 202(b) (relating to Duplicate use of names). This subsection makes it clear that the proper name of a covered association1 must be distinguishable on the records of the Department from the following:
The proper name of another covered association, unless the covered association has:
- consented to use of the name stating that it is about to change its name, is about to cease to do business, is being wound up or is a foreign association about to withdraw from doing business in this Commonwealth;
- filed a tax return or certificate with the Department of Revenue indicating that the covered association or other association is out of existence or has failed for a period of three successive years to file with the Department of Revenue a report or return required by law and the fact of the failure has been certified by the Department of Revenue to the Department of State;
- abandoned its name under the laws of its jurisdiction of formation, by amendment, merger, consolidation, division, expiration, dissolution or otherwise, without its name being adopted by a successor, and an official record of that fact, certified as provided under 42 Pa.C.S. § 5328 (relating to proof of official records), is presented by a person to the department.
These revisions mean that names will no longer be made available automatically because of failure to file a decennial report or because officer information is not on file from the Department of Revenue.
The Department of State estimates that there are hundreds of thousands of entities which are "active" on the Bureau's records (having never formally dissolved or terminated), but which have not filed anything with the Department in decades and are likely no longer operating.
The names of those “active” entities will not be released for use unless the company seeking that name has:
- consent from the blocking association in the form of a completed Consent to Appropriation of Name [DSCB:19-17.2]
- a Name Availability Certificate from the Department of State or
- certification from another jurisdiction that a registered foreign association has abandoned its name in its home state.
Filers using any of these three options must submit the appropriate documentation (e.g. executed consent, Name Availability Certificate or certificate from other jurisdiction) together with the filing that is seeking to use the name of an “active” entity.
If the company seeking the name cannot show any of these three circumstances, it will need to wait until 2028, when (assuming the blocking company does not file an annual report) the name will be made available upon the administrative dissolution or cancellation of the blocking company.
How to request a Name Availability Certificate
- If you are unable to reach the prior filing association to obtain Consent to Appropriation of Name [DSCB:19-17.2] and suspect the association is no longer doing business, contact the Department of State to inquire about availability of the specific name which is currently in use by the prior filing association. Email RA-CORPS@pa.gov with the subject line: Name Availability to request an inquiry about the specific association name. Be sure to specify the complete name, exactly as it is used by the prior association, as well as the Department of State file/entity number and initial filing date.
- The Department will respond by email in 7-10 days with either a Name Availability Certificate (if the name is available) or a response that the name is not available.
- Upload the Name Availability Certificate .pdf as part of your online filing. The certificate becomes part of the filed document.
1 15 Pa.C.S. § 201. Definitions.
The following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Covered association." Any of the following:
- (1) a domestic filing entity;
- (2) a domestic limited liability partnership;
- (3) an electing partnership; or
- (4) a registered foreign association.