Section 11.16. Summary judicial review of rejection of documents not involving examination of mark or insignia

(a) Whenever the Department rejects a document, other than a document relating to a mark or insignia requiring examination under 54 Pa.C.S. (relating to names), delivered for filing under the code or related legislation or fails to make available a certified duplicate copy of the document within the time provided by § 11.13 (relating to immediate certified copy), section 137(a) of the code (relating to court to pass upon rejection of documents by Department of State) provides that: the original document or copies thereof, the statement, if any, of the Department made under § 11.13(b)(2) and other papers relating thereto may be delivered to the Prothonotary of the Commonwealth Court, which is the court vested by 42 Pa.C.S. § 763 (relating to direct appeals from government agencies) with jurisdiction of appeals from the Department. The Prothonotary is required to transmit the papers to the Court without formality or expense to the person who delivered the original document to the Department. The question of the eligibility of the document for filing in the Department is required to be, at the earliest possible time, heard by a judge of the Court, without jury, in the Court or in chambers, and that the true intent of section 137 of the code is to secure for applicants an immediate hearing in court and a determination by the Court without delay or expense to the applicants. This special summary procedure has been saved from suspension by 210 Pa. Code Rule 5102(b)(6) (relating to statutes saved from suspension), which under 1 Pa.C.S. § 1937(a) (relating to references to statutes and regulations), as made applicable by 210 Pa. Code Rule 107 (relating to rules of construction), continues to apply to section 137 of the code notwithstanding the fact that it has been renumbered from former section 135 of the code (relating to requirements to be met by filed documents).

(b) The finding of the Commonwealth Court, or a judge thereof, that a document is eligible for filing in the Department will be treated by the Department as final and the Department will act in accordance therewith. It is provided in section 137(b) of the code that the Department will not have a right in the exercise of its functions under the code or related legislation to seek judicial review of an adverse order entered under section 137(a) of the code by the Commonwealth Court and that a right which the Department might enjoy under the Constitution of the Commonwealth or otherwise has been waived by the General Assembly. A department, board or commission of the Commonwealth which contends that the document fails to comply with section 135(a)(6) of the code may seek judicial review of the order. See also § 13.14 (relating to governmental approvals).

(c) The corporation or an incorporator of a proposed corporation or other aggrieved applicant may within the time and in the manner provided by law seek judicial review in the Supreme Court of Pennsylvania of an adverse order of the Commonwealth Court entered in the appeal.

(d) The appeal rights existing under section 137 of the code by their terms do not impair the right of a person to proceed under § 11.18 (relating to statement of correction) nor impair the right of the Attorney General to institute proceedings under section 503 of the code (relating to actions to revoke corporate franchises).

The provisions of this § 11.16 adopted April 17, 1992, effective April 18, 1992, 22 Pa.B. 1993.

Notation

Cross References

This section cited in 19 Pa. Code § 11.17 (relating to judicial review of rejection of documents including examination of mark or insignia).