Use of Fictitious Names by Institutions Under the Banking Code

63 Pa. D. & C.2d 598

• Court: Pennsylvania Department of Justice
• Decided: January 29, 1974
• Docket: Official opinion no. 7
• Status: Published

Opinion

PACKEL, Attorney General,

You have requested our opinion as to whether an institution¹ under the Banking Code of November 30, 1965, P. L. 847 (No. 356), as amended, 7 PS §101, et seq. (Banking Code), can register and do business under a fictitious name. For the reasons set forth hereafter, it is our opinion, and you are so advised, that such institutions can conduct their business under a fictitious name.

The Fictitious Corporate Name Act of July 11,1957, P. L. 783, 15 PS §51, et seq., which provides for the registration of fictitious names used by corporations, defines Corporation as:

“Any profit or nonprofit corporation organized under the laws of the Commonwealth of Pennsylvania or of any other jurisdiction”: 15 PS §52(2).

Since banks are organized as “incorporated institutions” under provisions of the Banking Code² they are, in our opinion, corporations as defined in the Fictitious Corporate Name Act, supra, and the provisions of that act are necessarily available to them.

The various provisions of the Banking Code pertinent to corporate names must also be considered in pari materia with the Fictitious Corporate Name Act. The two laws must be construed together where possible as one law.³ Section 802 of the Banking Code, 7 PS §802, sets forth limitations on the names permitted to be used by institutions. Subsection (a)(x) incorporates by reference the provisions of the Business Corporation Law of May 5, 1933, P. L. 364, as amended, 15 PS §1001, et seq., prohibiting the use of a name the same as or deceptively similar to, the name of a domestic corporation, a foreign corporation authorized to do business in Pennsylvania, an unincorporated association registered with the Department of State, the name of an agency of the Commonwealth, or a name which has been reserved for use by a corporation. Section 805, 7 PS §805, prohibits the adoption, use or advertising of certain names, titles and descriptions.⁴

In addition to the above limitations, section 804, 7 PS §804, sets forth the procedure whereby an institution may reserve the exclusive right to use a corporate name. It provides that:

“Such reservation may be made by filing with the Department of State an application to reserve a specified name executed by the applicant. If the Department of State finds that such name is available, it shall send a copy of the application to the Department of Banking. If the Department of Banking concludes that the use of the name complies with the requirements of Section 802 and is otherwise consistent with the purposes and provisions of this Act, it shall give its-written assent to the Department of State”: 7 PS §804(b).

Based on the foregoing, it is our conclusion, and you are hereby advised, that banking institutions can register and do business under a fictitious name provided that the selected name is not deceptively similar or violative of the sections described above. In the instance you feel it necessary to interpret the existing statutory language, we recommend that you promulgate rules and regulations consistent, of course, with the provisions of the Banking Code.⁵

1 The term “institution” is defined by section 102(r) of the Banking Code, 7 PS §102(r), as “An incorporated institution, a private bank or an employes’ mutual banking association, except where the definition of the word stated at the beginning of the chapter in which it is used either gives a less inclusive meaning to the word or specifically includes a national bank.” “Incorporated institution” is defined by section 102(q), 7 PS §102(q), as “A bank, a bank and trust company, a trust company or a savings bank.”

2 See 7 PS §§1001-1011.

3 Section 1932 of the Statutory Construction Act of December 6, 1972, 1 Pa. S. §1932.

4 Subsection (a), 7 PS § 805(a), prohibits the use of any name, title or designation which is “deceptively similar to the name of an institution subject to this act.” Subsection (b), 7 PS § 805(b), prohibits “ [any] person engaged in a financial business and having an office located in Pennsylvania” from adopting, using or advertising any name, title or description which contains any of the words “bank,” “banking,” “banker” or “trust,” or their plural, except an institution subject to the Banking Code, national banks and certain corporations created under Federal law.

5 This could be done pursuant to section 202 of the Department of Banking Code of May 15, 1933, P. L. 565, as amended, 71 PS §733-202, as well as sections 1602,1603 of The Administrative Code of April 9, 1929, P. L. 177, as amended, 71 PS §§422, 423.