Metz Lewis Brodman Must O'Keefe

Metz Lewis Brodman Must O'Keefe

Posted on March 23, 2020

The COVID-19 outbreak has impacted virtually every facet of society, and the legal community is no exception.

Given recommendations to practice social distancing to slow the spread of the virus, many hearings and other legal proceedings are being postponed. In an attempt to keep the wheels of justice moving, many Pennsylvania courts have announced policies permitting telephonic or other remote participation in court proceedings.

Remote participation in hearings and other legal proceedings (for example, depositions and arbitrations) in Pennsylvania is complicated by the current requirement under the Revised Uniform Law on Notarial Acts (“RULNA,” 57 Pa. C.S.A. Section 301 et seq.) that “[i]f a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.” 57 Pa. C.S.A. § 306. The term “notarial act” is defined as, among other things, administering an oath or affirmation. 57 Pa. C.S.A. § 302. The comments to RULNA specifically note that “personal appearance” does not include an appearance by audio or video technology due to concerns that current technology is insufficient to allow the notarial officer to properly fulfill his obligation to, among other things, identify the individual and evaluate his competency.

Given this requirement, it may be difficult or impossible to administer an oath or affirmation in the physical presence of a notarial officer (such as a court reporter) where the individual is testifying under oath outside the courtroom or other physical location where a proceeding is occurring. The “physical presence” requirement therefore is an impediment to remote participation in legal proceedings.

In an effort to address this issue, on March 21, 2020, Governor Wolf, at the request of the Pennsylvania Department of State, authorized a temporary suspension of the physical presence requirement in Pennsylvania criminal, civil, and administrative proceedings for court reporters and stenographers. Under this temporary provision, oaths and affirmations can be administered in court proceedings outside the physical presence of the court reporter or stenographer via audio-visual technology. This change could increase the opportunities to conduct “remote” judicial proceedings such as depositions, arbitrations and hearings during the COVID-19 crisis. The regular requirements go back into effect at such time as the judicial emergency declaration ends, but it will be interesting to see whether this temporary change causes Pennsylvania to consider permanent allowance of remote notarization, as is the case in some other states.

Finally, at present, it appears that the new rules have no impact on the in-person requirement in other contexts, such as the notarization of legal documents. For example, mortgages in Pennsylvania are generally not valid unless properly notarized, which would appear to continue to require in-person appearance before the notarial officer.

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