Category Archives: Firearms Law

Notarization of Legal Documents, including Gun Trusts, in Pennsylvania

In the past few weeks, I have had two different clients who encountered difficulty in having a notary public verify their signature of legal documents. In the first case, the notary objected because he could not independently confirm whether the statements in an affidavit were true. In the second case, the notary objected because the document was designed to permit the signer to add to a listed schedule of assets of a trust, rather than having all the assets listed before being signed. In both cases, we advised our clients that our office staff would gladly provide notary services that were being improperly withheld.

The role of a notary public in Pennsylvania is defined by statute. The legislature adopted the Revised Uniform Law on Notarial Acts (“RULONA”) which was signed into law on October 9, 2013. Section 302 of RULONA defines six “notarial acts”:

  1. taking an acknowledgment;
  2. administering an oath or affirmation;
  3. taking a verification on oath or affirmation;
  4. witnessing or attesting a signature;
  5. certifying or attesting a copy or deposition; and
  6. noting a protest of a negotiable instrument.

None of those acts purport to include any power to investigate the underlying matter. That fact is made abundantly clear by the definition of each of the notarial acts.

An acknowledgment is defined as “a declaration by an individual before a notarial officer that . . . the individual has signed a record for the purpose stated in the record.” Section 305(a) explains that the duty of the notary is to determine that “the individual appearing before” him “has the identity claimed” and that the “signature on the record is the signature of the individual.” That is, the notary simply witnesses that the individual appearing before him signed the statement, not that the statement is true.

When administering an oath of affirmation, the notary does not vouch for the truth of the statements made by the individual being placed under oath any more than upon administering an oath in open court a bailiff or court clerk is responsible to determine whether the testimony of a witness is truthful.

A notary taking a verification on oath or affirmation means that the notary asks someone to swear that statements are true, not that the notary is swearing they are true. The process is defined as “[a] declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.” Section 305(b) explains that the duty of the notary is to determine that “the individual appearing before [him] and making the verification has the identity claimed” and that the “signature on the statement verified is the signature of the individual.”

When witnessing a signature, the notary represents only that the stated individual signed the document. Section 305(c) explains that the duty of the notary is to determine that “the individual appearing before [him] and signing the record has the identity claimed” and that the “signature on the record is the signature of the individual.” Similarly, when a notary is certifying a copy, he represents only that the copy truly reflects the original, not that statements in the original document are true. Section 305(d) explains that the notary “shall determine that the copy is a complete and accurate transcription or reproduction of the record or item.”

Although certain portions of RULONA were amended on July 9, 2014, in Act 119, none of the amendments address the provisions at issue here.

I feel silly for having to write this explanation. The Pennsylvania Association of Notaries (“PAN”) was incredulous when I explained the problem. PAN publishes a “practical guide” for notaries in Pennsylvania. It explains with respect to an affidavit, for example:

 Your customer—called an affiant in this case—is responsible for the truth and accuracy of the statement he or she makes on the affidavit. You are responsible for guaranteeing, by your signature and seal, that the customer personally appeared and was properly identified, and that you administered an oath or affirmation. You are also responsible for guaranteeing that the customer signed the affidavit in front of you.

Hopefully these explanations may help to minimize future refusals to provide notary services. If a notary still improperly refuses to provide service, complaints may be filed with the Secretary of the Commonwealth. An on-line complaint form can be found here.

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Putting Attorney General Kane’s Legal Opinion to Good Use

Today, utilizing Attorney General Kane’s August 5, 2014, Legal Opinion Letter, I submitted letters to a number of Commonwealth agencies requesting that they rescind their regulations in relation to possession of firearms, which are inconsistent with Pennsylvania’s Crimes Code, referred to as Title 18. Those letters include:

  1. Pennsylvania State System of Higher Education (PASSHE) – here.
  2. Pennsylvania Department of Conservation and Natural Resources (DCNR) – here.
  3. Pennsylvania Department of Labor and Industry (L&I) – here.
  4. Pennsylvania Department of State – here.

As I hear back from these agencies as to what action they will be taking, I will let our readers know.

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Attorney General Kane’s Opinion on Commonwealth Agencies Regulating Possession of Firearms

As I previously blogged about, I wrote a letter to the PA Gaming Control Board requesting that it invalidate 58 Pa.Code § 465a.13, as it had unlawfully regulated the possession of firearms in casinos, pursuant to 18 Pa.C.S. § 6109(m.3)(2). On September 8, 2014, I heard back from the PA Gaming Control Board that it would be rescinding the regulation of firearms, pursuant to a Legal Opinion of Attorney General Kane. At that time, I was not provided a copy of the Legal Opinion but have since come into possession of it.

On August 5, 2014, Attorney General Kane issued a Legal Opinion letter stating:

“…the Board’s regulation at 58 Pa.Code § 465a.13(a) contravenes 18 Pa.C.S. § 6109(m.3)…Section 6109(m.3), on the other hand, prohibits a Commonwealth agency from regulating the possession of a firearm in any manner inconsistent with Title 18. The Board is a Commonwealth agency….Accordingly, the Board’s regulation is inconsistent with the provisions of Title 18 inasmuch it regulates the possession of firearms in a location (licensed casino facility) not contemplated by Title 18.”

It looks like many other Commonwealth agencies (Dept of State, PASSHE, DCNR, Bureau of Workers’ Compensation, … etc) may be on the receiving end of demands to rescind their unlawful regulations…

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Perry County Update: Nauman Smith Law Firm Requests Extension for Right to Know Law Request

On August 28, 2014, I submitted a Right to Know Law (RTKL) Request to Perry County for all receipts and disbursements by Nauman Smith Law Firm in relation to its representation of the Perry County Auditors. Pursuant to Section 506(d)(1) of the RTKL, third parties possessors must disclose public record, pursuant to the RTKL. On August 29, 2014, it was forwarded to Nauman Smith Law Firm. On September 8, 2014, pursuant to Section 902, Nauman Smith Law Firm requested thirty (30) additional days to respond.

I am somewhat perplexed as to why Nauman Smith Law Firm is unable to immediately provide an accounting of its receipts and disbursements (financial records) related to its representation of the Perry County Auditors. It should not take 30 days to prepare an accounting in a matter that has been billed the entire time. Maybe someone should hire an auditor to assist…It’ll be interesting to see what the accounting reflects….

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Did ATF Approve Your Making of a New Machinegun and Then Rescind It? Contact Us To Discuss

As many of our viewers are aware, on May 14, 2014, I wrote an article: Did ATF’s Determination on NICS Checks Open the Door for Manufacture of New Machineguns for Trusts? At that time, I submitted a paper Form 1 for a minigun, as eFile was not currently available. Several weeks later, eFile would come up and several individuals submitted eForm 1s, utilizing the argument I put forth in my article, to make new machineguns. As paper forms are taking 6+ months, but eFile Form 1s are only taking 30-45 days, several individuals have reported receiving approvals to make a new machinegun. Yesterday, ATF decided to rescind those approvals and started calling individuals to inform them of the rescission.

Some have reported receiving eFile notices from ATF stating the change in determination. ATF’s humorous basis is allegedly:

 THE GUN CONTROL ACT OF 1968 (GCA), AS AMENDED, PROHIBITS ANY PERSON FROM POSSESSING A MACHINEGUN NOT LAWFULLY POSSESSED AND REGISTERED PRIOR TO MAY 19, 1986. SEE 18 U.S.C. § 922(O). THE GCA DEFINES THE TERM “PERSON” TO “INCLUDE ANY INDIVIDUAL, CORPORATION, COMPANY, ASSOCIATION, FIRM, PARTNERSHIP, SOCIETY, OR JOINT STOCK COMPANY.” SEE 18 U.S.C. § 921(A)(1). PURSUANT TO THE NFA, 26 U.S.C. § 5822, AND IMPLEMENTING REGULATIONS, 27 C.F.R. § 479.105(A), ATF MAY NOT APPROVE ANY PRIVATE PERSON’S APPLICATION TO MAKE AND REGISTER A MACHINEGUN AFTER MAY 19, 1986.

THE FACT THAT AN UNINCORPORATED TRUST IS NOT INCLUDED IN THE DEFINITION OF “PERSON” UNDER THE GCA DOES NOT MEAN THAT AN INDIVIDUAL MAY AVOID LIABILITY UNDER SECTION 922(O) BY PLACING A MACHINEGUN “IN TRUST.” CONSEQUENTLY, IN TERMS OF AN UNINCORPORATED TRUST, ATF MUST DISREGARD SUCH A NON-ENTITY UNDER THE GCA AND CONSIDER THE INDIVIDUAL ACTING ON BEHALF OF THE TRUST TO BE THE PROPOSED MAKER/POSSESSOR OF THE MACHINEGUN.

We have discussed these rescission with several individuals and are looking at filing suit against ATF over them. If you received an approved Form 1 to make a new machinegun and have subsequently received notice from ATF that they are rescinding it, contact us to discuss your legal options.

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PA Gaming Control Board Acknowledges That Its Regulation is Unlawful!

As many of our viewers are aware, several months ago, on April 19, 2014, I submitted a written request to the Pennsylvania Gaming Control Board to invalidate Section 465a.13, as it violated 18 Pa.C.S. § 6109(m.3).  In June, I heard from Chief Counsel of the PA Gaming Control Board that the issue had been forwarded to Attorney General Kane. Today, I heard back from Chief Counsel Sherman that the Attorney General issued a Legal Opinion (I don’t yet have a copy) and that the AG determined that

amendments in 2011 to the Pennsylvania Uniform Firearms Act prohibit the PGCB and other Commonwealth agencies from regulating the possession of firearms in a manner inconsistent with that Act.  Accordingly, the Attorney General states that the Board no longer may by Regulation limit the possession of firearms in a licensed casino facility by persons who possess a valid permit to carry a concealed firearm.  Given this result, we are preparing an amendment to Board regulation 465a.13 will be presented to the Board at its September 17, 2014 meeting to address this issue. (emphasis added)

Attorney Sherman then continued on to point out that the

Attorney General’s Opinion is not an evaluation of whether the private owners of a state-licensed casino facility may or may not limit the possession of firearms in the privately-owned casino.  Thus, each licensed casino facility may or may not chose to limit the possession of firearms on its property.  That is a determination which will be left to the discretion of each casino.

So that makes two wins in one day for LTCF holders!

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Perry County Auditors’ Complaint – DISMISSED

Today, Judge Zanic issued his decision on Sheriff Nace’s Preliminary Objections filed against the Perry County Auditors’ Complaint. A copy of the Order can be obtained here. A copy of the Decision can he obtained here.

The Order simply states, “AND NOW, this 8th day of September, 2014, the Preliminary Objection of Defendant in the nature of a demurrer is SUSTAINED and Plaintiffs’ Complaint is DISMISSED.”

The Decision reviews several of the legal issues involved and declares,

In the case at bar, we have determined that the Complaint is legally insufficient, and as such, a dismissal is required. The Auditors have failed to overcome the demurrer of the Sheriff for two clear and distinct reasons. First, the Complaint improperly seeks to increase the statutory authority of the Perry County Auditors by alleging that auditors in this Commonwealth have the duty to obtain information that was never intended by the statutory language of 16 P.S. §1721 or 16 P.S. §1724. Second, the Complaint does not make any allegation that the Sheriff’s actions have caused the Auditors to fail in performing their statutory duty to audit.

The Decision goes on to state,

Thus, the Complaint appears to be nothing more than a fishing expedition for information unrelated to the Plaintiffs’ statutory duty to audit.

Ouch…

 

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