Bindas, D., Aplt. v. PennDOT ( 2023 )

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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
DONALD R. BINDAS, : No. 27 WAP 2022
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered May
: 18, 2021 at No. 652 CD 2018,
v. : affirming the Order of the Court of
: Common Pleas of Washington
: County entered February 26, 2018
COMMONWEALTH OF PENNSYLVANIA, : at No. 2016-4760.
DEPARTMENT OF TRANSPORTATION, :
: ARGUED: April 19, 2023
Appellee :
OPINION
JUSTICE WECHT DECIDED: AUGUST 22, 2023
In 2015, the Department of Transportation (“PennDOT”) began constructing a
diamond interchange and installing a drainage system on property abutting Interstate 70
(“I-70”) in Washington County, Pennsylvania. The property’s owner, Donald Bindas, filed
a petition for the appointment of a board of viewers, seeking compensation for this
encumbrance upon his land. PennDOT asserted that its predecessor, the Department of
Highways (“DOH”), had secured a highway easement for the land in question in 1958.
Both the trial court and the Commonwealth Court agreed, dismissing Bindas’ suit. Upon
our review of the statutory authority that PennDOT invokes, as well as the record, we find
that DOH’s failure to comply with the requirements of 36 P.S. § 670-210 renders that
easement invalid. Accordingly, we vacate the Commonwealth Court’s order, and we
remand with the instruction that PennDOT’s preliminary objections be overruled.
The General Assembly enacted the State Highway Law in 1945. Section 210
therein states:
The [Secretary of Transportation] is hereby empowered to change, alter, or
establish the width, lines, location, or grades of any State highway or any
intersecting road in any township, borough, or incorporated town, in such
manner as, in his discretion, may seem best, in order to correct danger or
inconvenience to the traveling public, or lessen the cost to the
Commonwealth in the construction, reconstruction, or maintenance thereof.
. . . Before any change or order of vacation is made, the secretary shall first
submit a plan of the proposed change or any proposed order of vacation
duly acknowledged to the Governor; and the same shall be approved by
him, and filed as a public record in the office of the department and a copy
thereof shall be recorded in the office for the recording of deeds in the
proper county at the expense of the department in a plan book or books
provided by the county for that purpose. The approval of such plan or plans
by the Governor shall be considered to be the condemnation of an
easement for highway purposes from all property within the lines marked as
required for right of way and the condemnation of an easement of support
or protection from all property within the lines marked as required for slopes.
All plans or orders so approved, filed and recorded, shall indicate the names
of the owners or reputed owners of the land affected by taking or vacation
and of lands abutting the same. It shall be the duty of the recorder of deeds
of each county to provide a plan book or books for the recording of such
plans and orders, and to maintain an adequate locality index for the same.1
Thirteen years later, the Governor approved and signed a “Construction and
Condemnation of Right of Way Plan” providing for the expansion of I-70. At the time, the
property now owned by Bindas covered two separate parcels, one owned by Otto and
Rose Koehler, and the other owned by E. Helene Carter. The Koehlers and Carter signed
quitclaim deeds to DOH, which were not recorded. In 1976, the Washington County Tax
Claim Bureau acquired both parcels. The next year, it sold the property to Frances and
Cecilia Jaworski, who, in turn, sold the property to Bindas.
The chain of title of the Carter property included the following paragraph in
subsequent deeds:
1 36 P.S. § 670-210.
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EXCEPTING and RESERVING therefrom and thereout the greater portion
of the above described tract, condemned by the Commonwealth of
Pennsylvania for highway purposes for a limited access highway as shown
on Sheet No. 44 of Right of Way Plan for Route No. 798, Section No. 1-A,
Washington County, as approved by the Governor on August 1, 1958; the
portion so taken being situated between [the enumerated] Stations [ ] on the
left side of the road.2
Nevertheless, when Sheila Sten—a title searcher in Washington County for thirty-three
years, enlisted by Bindas—investigated PennDOT’s claim in April 2016, she found no
encumbrances upon the property. Only when PennDOT’s counsel alerted her to its
existence did Sten find a copy of the 1958 plan on microfilm, in an unlabeled drawer at
the Washington County Recorder of Deeds office. The drawers were not indexed.
Following the title search, Bindas petitioned for the appointment of a board of
viewers in August 2016. PennDOT filed preliminary objections and the trial court held an
evidentiary hearing in September 2017. Bindas argued that Section 210 required not only
recording of the 1958 plan, but indexing within a locality index. Furthermore, he asserted
that it was PennDOT’s duty to ensure that the plan was properly indexed, and that the
Department’s failure to do so left it without an enforceable interest in the property. Citing
First Citizens National Bank v. Sherwood, 879 A.2d 178 (Pa. 2005), PennDOT maintained
that “the fact that the 1958 Plan was not properly indexed does not void the condemnation
action so long as it is properly filed and recorded.”3
The trial court granted PennDOT’s preliminary objections, finding that “the lack of
indexing” was “the fault of the Washington County Recorder of Deeds Office.”4 It
therefore refused to divest PennDOT of a property interest based upon a third party’s
error. The court reasoned that several deeds expressly referred to the easement, a
2 R.R. 313-16a.
3 PennDOT Tr. Ct. Br. in Support of Preliminary Objections, at 9.
4 Tr. Ct. Op., 5/24/18, at 6.
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search was warranted by prospective buyers, and a PennDOT employee had been able
to locate the document at the County Recorder’s Office in a matter of minutes. Finding
that this case was analogous to Sherwood, the court held that a “defective indexing does
not invalidate the instrument.”5 Accordingly, it sustained PennDOT’s preliminary
objections.
Bindas appealed, and the Commonwealth Court, sitting en banc, affirmed.6 The
court relied upon Section 210’s provision that “[t]he approval of such plan or plans by the
Governor shall be considered to be the condemnation of an easement,” and found that
PennDOT had satisfied the State Highway Law’s command.7 It cited Commonwealth,
Department of Transportation v. McGowan, 450 A.2d 232 (Pa. Cmwlth. 1982), for the
proposition that the recording of the 1958 plan provided Bindas with constructive notice
of the easement. Because it is the duty of the purchaser of real estate to investigate its
title and to exercise due diligence in doing so,8 the majority held that Bindas should have
known to examine the extent of PennDOT’s interest in the property. Because PennDOT
complied with the requirements of Section 210 and provided just compensation to the
Koehlers and Carter, the court determined that Bindas’ argument failed.
Judges Covey and Ceisler authored dissents. Judge Covey found that DOH had
a duty to ensure proper recording and indexing under Prouty v. Marshall, 74 A. 550 (Pa.
1909). She argued that Pennsylvania courts have “repeatedly applied” the principle that
“[t]he person offering an instrument for record has a duty to see that it is properly recorded
5 Id. at 7.
6 Bindas v. PennDOT, 260 A.3d 991 (Pa. Cmwlth. 2021).
7 Id. at 999.
8 See Ohio River Junction R. Co. v. Pennsylvania Co., 72 A.2d 271, 273 (Pa. 1909).
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and properly indexed, and cannot hide behind a mistake of the recorder.”9 While Section
210 imposed a duty upon the Recorder of Deeds to record plans and maintain indexes, it
“does not explicitly allocate the risk of defective recording or indexing as between the
parties.”10 Accordingly, Judge Covey would have endorsed Bindas’ position as a matter
of law, and would have reversed the trial court’s order.
Judge Ceisler’s dissent focused upon the text of Section 210 and the purpose of
the indexing requirement. She acknowledged that statutes providing for the power of
eminent domain should be strictly construed, and that a court must read a statute to give
effect to all of its provisions.11
Under the Majority's interpretation of Section 210 of the State Highway Law,
all that is required for property to be condemned by [PennDOT] is that the
Governor approve the plan and that [PennDOT] present the plan to the
county recorder of deeds office for filing, without ever ensuring that the plan
is properly recorded or indexed. Such an interpretation renders the
remainder of Section 210 meaningless.12
When Section 210 refers to “such plan,” she contended, it refers to a plan that has been
“approved, filed and recorded,” and “all three actions are required for condemnation.”13
Judge Ceisler added that Sten’s inability to locate evidence of the easement while a
PennDOT employee could locate it in five minutes demonstrated “why a highway plan
must be properly recorded and indexed in order to provide notice to affected
landowners.”14 Because the 1958 Plan was not recorded “in a plan book,” as Section 210
9 Bindas, 260 A.3d at 1002 (Covey, J., dissenting) (quoting In re 250 Bell Rd., Lower
Merion Twp., Montgomery Cnty., 388 A.2d 297, 300 n.3 (Pa. 1978)) (emphasis removed).
10 Id. (cleaned up).
11 Id. at 1003-04 (Ceisler, J., dissenting) (citing 1 Pa.C.S. §§ 1928(b)(4); 1921(a)).
12 Id. at 1006 (quoting 36 P.S. § 670-210).
13 Id. (emphasis in original).
14 Id. at 1004.
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requires, she also found Sherwood distinguishable.15 Like Judge Covey, she would have
reversed the trial court’s order.
Bindas petitioned for allowance of appeal, which this Court granted. The issues,
as stated by Bindas, are as follows:
1. Did the Commonwealth Court err in finding that a right of way plan approved
by the Governor is effective to condemn property pursuant to 36 P.S. § 670-
210 without the proper recording and indexing as required by that statute?
2. Did the Commonwealth Court err in finding that the Department of
Transportation and its predecessor, the Department of Highways, have no
duty to ensure its right of way plans are properly recorded and indexed as
required by 36 P.S. § 670-210?
Bindas argues that the Commonwealth Court ignored Section 210’s use of the
mandatory “shall,” and that its interpretation renders parts of that provision entirely
superfluous.16 He further contends that the majority below relied upon inapposite
precedent17 and considered improper factors, such as the payment of compensation
(which is not an element of Section 210) and whether he had actual or constructive notice
of the Plan (which “has no bearing on the validity of the condemnation”).18 Nothing in the
15 Id. at 1005 (quoting 36 P.S. § 670-210) (emphasis in original). In Sherwood, the
record at issue was properly recorded, but not indexed.
16 See Bindas’ Br. at 32-33.
17 The Commonwealth Court majority cited Smith v. Commonwealth, 40 A.2d 383,
384 (Pa. 1945), Appeal of Harrisburg, 107 A.2d 868, 870 (Pa. 1954), and Appeal of
Commonwealth, 221 A.2d 289, 291 (Pa. 1966). See Bindas, 260 A.3d at 998-99. As the
court recognized, Harrisburg dealt with “similar language” in 36 P.S. § 670-208, a
provision regarding takings, and Smith dealt with a predecessor to Section 210. Id.
Bindas argues that Appeal of Commonwealth’s focus was Section 219, not Section 210,
and asserts that the Commonwealth Court “ignored” contrary case law regarding the
predecessor statute at issue in Smith. See Bindas’ Br. at 22 (citing Urbanski’s Petition,
194 A. 210, 211 (Pa. Super. 1937) (holding that, under the predecessor statute, DOH
does not have the authority to enter upon and take land “unless and until a plan showing
such taking has been prepared, approved by the Governor and filed . . . as a public
record”) (emphasis in brief)).
18 Bindas’ Br. at 27.
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record, according to Bindas, substantiates the Commonwealth Court’s claim that he had
actual or constructive notice. While there may have been evidence of the Plan in the
chain of title of the Carter property, it did not reveal itself in a title search of Bindas’
property, “lend[ing] further credence to the importance [and] the necessity of proper
recording and indexing required by Section 210.”19
Bindas also asserts that the Commonwealth Court’s invocation of McGowan
provides no support. First, he notes that McGowan did not squarely address the role of
compliance with plan book and indexing requirements. There, PennDOT argued that a
condemnation of subject properties had occurred, and that constructive notice of the
taking had been provided to the property owner’s predecessors in title by virtue of the
proper county recording in the plan. But because PennDOT had not provided a copy of
the pertinent plan in the record, the Commonwealth Court found itself “unable to verify
whether the plan was actually filed in Montgomery County and whether it was filed
pursuant to Section 206 or 210.”20 Second, Bindas argues, McGowan’s reference to
constructive notice arises in the context of when a condemnation occurs, and not
subsequent purchasers acquiring property from an owner whose land was subject to a
condemnation.21
In relying upon the existence of actual or constructive notice of the Plan—which
“has no bearing on the statutory language in question”—the Commonwealth Court,
Bindas contends, “shifted the burden away from PennDOT and its predecessor.”22 Rather
19 Id. at 29.
20 McGowan, 450 A.2d at 234.
21 Bindas’ Br. at 30 (citing McGowan, 450 A.2d at 234 n.7).
22 Id. at 31.
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than requiring PennDOT to demonstrate that its condemnation was valid, he asserts that
the court asked him to prove that the condemnation was defective.
Pursuant to the second question presented, Bindas submits that PennDOT and
DOH had a duty to ensure the proper recording and indexing of the Plan under this Court’s
decision in Prouty.23 While the Commonwealth Court offered a factual distinction in
finding that Bindas’ reliance upon Prouty was “misplaced,” he points out that the majority
below “did not assail [his] reliance . . . as it related to the principle of which party bore the
burden [of] ensuring that the recording of an instrument was correct.”24
Bindas cites several cases in which lower courts have adhered to Prouty.25 Most
notably, in Apollo Borough v. Clepper, the Superior Court held that a purchaser of property
acquired it free of a mechanics’ lien, because the lien had not been placed in a locality
index.26 The purchaser searched relevant dockets and indexes, finding nothing. In light
of a statute providing that “[i]t shall be the duty of the prothonotaries of the Court of
Common Pleas . . . to keep a Locality Index” in which such liens would be registered, the
court opined that “had the provisions of this act been complied with, [the purchaser] would
23 74 A. at 551 (“The obligation of seeing that the record of an instrument is correct
must properly rest upon its holder. If he fails to protect himself, the consequence cannot
justly be shifted upon an innocent purchaser.”).
24 Bindas’ Br. at 36.
25 See In re 250 Bell Rd., Lower Merion Twp., Montgomery Cnty., 388 A.2d at 300
n.3; Commonwealth v. Roberts, 141 A.2d 393 (Pa. 1958); U.S. Nat’l Bank Ass’n v. United
Hands Cmty. Land Tr., 129 A.3d 627, 638 n.8 (Pa. Cmwlth. 2015); Antonis v. Liberati,
821 A.2d 666, 669-70 (Pa. Cmwlth. 2003); Commonwealth Fed. Sav. & Loan Ass’n v.
Pettit, 586 A.2d 1021, 1024 n.6 (Pa. Cmwlth. 1991); Jarrell v. Fidelity-Philadelphia Tr.
Co., 33 Pa.D.&C.2d 143, 146 (C.P. Delaware 1963); Mercer v. Santa Lucia of Hillsville,
82 Pa.D.&C. 233, 241 (C.P. Lawrence 1952).
26 44 Pa. Super. 396 (1910).
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have had no excuse for not finding the lien against the property he was about to
purchase.”27 Bindas argues that he is similarly situated to the purchaser in Clepper.
While the recording of a plan in a plan book and its indexing within a locality index
are “ministerial actions to be performed by the local recorder of deeds,” Bindas maintains
that PennDOT, as holder of the instrument, had an obligation to ensure that the recorder
complied with the statute.28 He cites multiple treatises that have acknowledged this
general rule, and he defends its logic.29 PennDOT, he avers, is the only party with an
interest in seeing that the Plan was recorded and indexed in compliance with Section 210.
Had the recorder’s office failed to perform its ministerial function, or done so erroneously,
PennDOT could have sought a writ of mandamus to remedy those failures.30
In reply, PennDOT asserts that the law in effect in 1958 did not require a uniform
system of filing, recording, and indexing condemnations. Rather, it claims that the
Eminent Domain Code of 1964 imposed that requirement,31 and that the Commonwealth
Court applied the correct test: “the Governor’s approval shall be considered to work a
27 Id. at 403-6 (citing Act of March 18, 1875, P.L. 32).
28 Bindas’ Br. at 44.
29 Id. at 40-42 (citing Edward C. Sweeney, The Duty and Function of Pennsylvania
Recorders of Deeds Offices and Chesapeake Appalachia, LLC v. Ginger Golden, 83 PA.
BAR. ASS’N QUARTERLY 155, 169 (2019) (“[A]ccuracy is for the filer of the document, the
mortgagee, to ensure. If the Recorder of Deeds is a library, its filers are responsible for
whether users can find their filings in the library.”); LADNER PENNSYLVANIA REAL ESTATE
LAW § 19.07 (Bisel 6th ed. 2013) (“[T]he party placing a document of record still has a
duty to verify that the document was properly indexed and transcribed. . . . That party
should examine the record and see that no mistake has been made in either indexing or
transcribing. It has a duty to do so.”)).
30 Id. at 44 (citing Phila. Newspaper, Inc. v. Jerome, 387 A.2d 425, 430 n.11 (Pa.
1978)).
31 PennDOT’s Br. at 9 (citing Act of June 22, 1964, P.L. 84, No. 6, 26 P.S. §§ 1-101,
et seq.).
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condemnation.”32 The opinion below, according to PennDOT, flowed from the plain
language of the statute and the en banc majority’s recognition that “all of the actions
necessary for the condemnation of [the] property occurred in 1958, including the payment
of just compensation.”33
PennDOT contends that the Commonwealth Court’s reasoning in McGowan is
controlling, and recommends that we adopt it.34 Furthermore, it stresses that our prior
case law has recognized that the recording of a plan in the appropriate county recorder
of deeds office constitutes constructive notice of the condemnation.35 PennDOT asks us
to presume that, when the General Assembly enacted Section 210, it was aware of
indexing requirements applicable to other property instruments, such as deeds and
mortgages.36 Its decision not to require such indexing for condemnations, according to
PennDOT, therefore is instructive. Moreover, PennDOT directs the Court’s attention to a
comment to Section 404 of the Eminent Domain Code of 1964, which states that the
provision37 “ha[d] no counterpart in existing law,” and that “[u]nder existing law, the State
32 Id. at 13 (quoting 36 P.S. § 670-210); see Appeal of Commonwealth, 221 A.2d at
291.
33 Id. at 14 (citing Bindas, 260 A.3d at 999).
34 Id. at 15-16 (citing McGowan, 450 A.2d 234).
35 Id. at 15 (citing Pane v. DOH, 222 A.2d 913, 916 (Pa. 1966) (“The recording of this
plan constituted constructive notice to the property owners . . .”); Strong Appeal, 161 A.2d
380, 383 (Pa. 1960) (“[F]iling a Governor-approved plan in the county where the road lies
is constructive notice of condemnation to the landowner . . .”)).
36 Id. at 17 (citing 16 P.S. §§ 9701-9857; 21 P.S. §§ 1, et seq.).
37 The condemnor, upon filing its declaration of taking, shall on the same day
lodge for record a notice thereof in the office of the record of deeds of the
county in which the property is located. . . . The notice shall specify the
court term and number of the declaration of taking and the date it was filed,
and shall contain a description or plan of the property condemned sufficient
for the identification thereof and the names of the owners of the property
(continued…)
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Highway Department records a plan.”38 Together with the fact that the Eminent Domain
Code of 1964 does not apply retroactively to property acquired under the State Highway
Law, PennDOT claims to have established that indexing was not a legal requirement in
the Commonwealth at the time of the condemnation.39
Regarding whether it had a duty to ensure that the Plan was recorded, PennDOT
points to the language of Section 210: “it shall be the duty of the recorder of deeds of
each county to provide a plan book or books for the recording of such plans . . . and to
maintain an adequate locality index for the same.”40 The State Highway Law does not
define the term “adequate locality index,” nor did it vest the Department “with authority or
oversight of the various country recorders’ offices.” That responsibility lay with individual
counties.41 Even if this Court finds that PennDOT has a duty to ensure proper indexing,
PennDOT maintains that the system used by Washington County should pass muster
because it stored plans on microfilm, “loosely organized by municipality.”42
Bindas’ reliance upon Prouty is misplaced, PennDOT asserts, not only because
that case involved mortgages and deeds (as opposed to highway easements), but also
because the relevant document was both defectively recorded and improperly indexed.
PennDOT dismisses the authority that Bindas finds persuasive as not squarely
interests condemned, as reasonably known to the condemnor, and shall be
indexed in the deed indices showing the condemnee set forth in the notice
as grantor and the condemnor as grantee.
Act of June 22, 1964, P.L. 84, No. 6, § 404.
38 Id., cmt (emphasis added).
39 PennDOT’s Br. at 19 (citing Pane, 222 A.2d at 915-16).
40 Id. at 22 (quoting 36 P.S. § 670-210).
41 Id. at 22 n.7.
42 Id. at 23-24. By statute, microfilm is a permitted method of maintaining recorded
and public documents. See 53 Pa.C.S. § 1388; 65 P.S. § 63.1.
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addressing the question at issue,43 and it reads Sherwood to conclusively establish that
“improper indexing is not fatal to an otherwise properly recorded real property
document.”44 Regardless of “Bindas’ protestations,” or “policy considerations espoused
by a litigant” with which a court may sympathize, PennDOT reiterates that a highway
easement is condemned upon the approval of the Governor, and that the recording of
such condemnation serves as constructive notice to all.45
Finally, PennDOT stresses that the courts below found Bindas to have actual and
constructive notice of the 1958 Plan.46 As this Court stated in Strong, a “limitation upon
an owner’s right to claim damages in condemnation cannot begin to run until he has had
notice, actual or constructive, that his property has been condemned.”47 Reasonable due
diligence, PennDOT claims, “would have revealed that the Carter tract sits within Bindas’
property,” and therefore would have directed Bindas to the reservation contained in the
Carter deed.48 This reservation existed when Bindas acquired the property in 1977, and
he was obligated to “inquire into the surrounding property interests, especially given that
43 See id. at 25.
44 Id. at 26 (citing Sherwood, 879 A.2d at 181).
45 Id. at 27.
46 In an appendix to its brief, PennDOT provides maps and figures of the relevant
properties, purporting to demonstrate that “the real property interest claimed by Bindas
and the Department are not identical, given that both Bindas’ alleged fee simple
ownership of the 0.872-acre property and the Department’s highway easement may exist
over the exact same area.” Id. at 29-30 n.10. Should this Court rule that the 1958
condemnation was not valid, “the extent of Bindas[’] ownership over the subject area
would properly become an issue before the Board of Property.” Id. (citing York OPA, LLC
v. Commonwealth, 181 A.3d 5 (Pa. Cmwlth. 2018)).
47 161 A.2d at 380.
48 PennDOT’s Br. at 31-32; see supra, n.2 and accompanying text.
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the parcel is sandwiched between two state highways and an interstate highway.” 49
Because the condemnation and right-of-way on his property was pre-existing and he had
notice of it, PennDOT concludes that no de facto taking occurred, and suggests that we
affirm the Commonwealth Court’s order.
Both issues upon which this Court granted allocatur—the sufficiency of the 1958
Plan under Section 210, and whether Section 210 imposes a duty upon PennDOT to
ensure proper indexing—are purely legal questions. Accordingly, our standard of review
is de novo, and our scope of review is plenary.50
As a preliminary matter, we note the narrow scope of this Opinion. Our ruling upon
the first issue impacts only those condemnations that occurred between 1947, when the
General Assembly amended the State Highway Law to require recording at the county
level, and 1964, when the Eminent Domain Code went into effect. PennDOT explicitly
concedes that, after 1964, the Eminent Domain Code requires such “standardized
indexing.”51
Because it informs our analysis of the first issue, we begin with the second issue,
and a brief examination of relevant case law. The Commonwealth Court reasoned that
“the failure of the County Recorder’s Office to properly record the Plan in a plan book nor
index the Plan in a locality index does not affect the validity” of the condemnation.52 Upon
review, we find that Prouty controls, and that DOH—now PennDOT—had a duty to ensure
that the 1958 Plan was properly recorded and indexed.
49 Id. at 32-33.
50 In re Milton Hershey Sch., 911 A.2d 1258, 1261 (Pa. 2006).
51 PennDOT’s Br. at 18.
52 Bindas, 260 A.3d at 999.
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In Prouty, a mortgagee brought suit to recover a balance that was due to her. She
had executed a mortgage with L.J. Marshall, who mistakenly had been recorded as “S.J.
Marshall” in the relevant county records. A later possessor of the property, who had
purchased it from Marshall, defended on the grounds that he had searched the mortgage
books and found no evidence of existing mortgages under “L.J. Marshall.” The lower
courts ruled in favor of the mortgagee, but this Court reversed.
We explained that the purpose of the statute mandating the indexing of mortgages
was to “give notice to intending purchasers . . . that the conveyance or incumbrance
stands in the line of title to the property which it describes.”53 Accordingly, the individual
who purchased the property from Marshall “was entitled to rely upon what appeared on
the index, and [the index] showed no mortgage given by L.J. Marshall.”54 Because it was
the mortgagee’s responsibility “to give notice that L.J. Marshall had executed to her a
mortgage upon the premises in question,” if she fell short in delivering such notice, the
Court explained that “the consequence must fall upon her.”55
A century later, in Sherwood, the Court confronted a similar question. First
Citizens National Bank purchased a piece of property from J. Joel Turrell. Prior to the
sale, it searched the mortgage index and discovered no encumbrances. Afterwards,
though, the bank discovered that while the mortgage had been properly recorded, it had
been improperly indexed. Turrell was acting as a trustee for Genevieve Van Noy, and
the records appeared under her name. First Citizens filed an action to quiet title, and the
trial court granted summary judgment in its favor. The Superior Court held that the
53 Prouty, 74 A. at 551.
54 Id.
55 Id. at 552.
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question of whether First Citizens had conducted a diligent search was a factual one, and
it remanded for further development of the record.
First Citizens petitioned for review, which this Court granted. We reversed, holding
that because the Turrell mortgage had been properly recorded, per 21 P.S. § 357, “all
subsequent purchasers [were] deemed to have constructive notice of it.”56 Even if Prouty
stood for the proposition that a purchaser of mortgaged premises without actual notice
does not have constructive notice where the mortgage is defectively recorded and
wrongly indexed, the Court determined that its holding “was effectively abrogated when
the Legislature promulgated [21] P.S. § 357.”57
In 2006, though, the General Assembly enacted 21 P.S. § 358, which provides as
follows:
In order for a document presented for record to the office of a recorder of
deeds of a county to be constructive notice for the purpose of this act or the
act of May 12, 1925 (P.L. 613, No. 327), entitled “An act regulating the
recording of certain deeds, conveyances, and other instruments of writing,
and fixing the effect thereof as to subsequent purchasers, mortgagees, and
judgment creditors,” or otherwise, the document shall be recorded, and one
of the following conditions shall be satisfied:
(1) In counties where the act of January 15, 1988 (P.L. 1, No. 1),
known as the “Uniform Parcel Identifier Law,” applies, the uniform
parcel identifier is endorsed or included on the document, and it is
indexed properly in an index arranged by uniform parcel identifiers.
(2) The document is indexed properly as to the party in all
alphabetical indices. . . . For purposes of this section, the term
“document” means a document that is eligible to be recorded in the
office of the recorder of deeds, including, but not limited to, deeds,
mortgages, quitclaim deeds, memoranda of lease and easements,
56 Sherwood, 879 A.2d at 182.
57 Id. While the citation to Section 357 appears as “16 P.S. § 357” in the court
reporter, we think it beyond cavil that the Sherwood majority was referencing 21 P.S. §
357. It used the correct citation throughout its opinion, and 16 P.S. § 357 does not exist.
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and includes documents presented for record in person, by mail,
electronically or in any other manner.58
The legislature’s specification that both proper recording and proper indexing are required
for a finding of constructive notice therefore restored the state of the law under Prouty.
As aforementioned, the Commonwealth Court reasoned that “the failure of the
County Recorder’s Office to properly record the Plan in a plan book nor index the Plan in
a locality index does not affect the validity” of the condemnation.59 While it is true that the
statutory language imposes a duty upon the recorder of deeds, and not PennDOT, to
“provide a plan book or books for the recording of such plans . . . and to maintain an
adequate locality index for the same,”60 our reading of that language does not alter our
disposition. The verbiage of that sentence—“provide” and “maintain”—makes clear that
the county recorder of deeds is responsible simply for offering Section 210 filings a home.
By implication, it is for PennDOT to furnish that home (i.e., the plan book and the locality
index) with the appropriate documents. Nothing in the record before us indicates that
Washington County lacks a plan book or a locality index. Even if that were the case,
though, PennDOT could have sought relief in mandamus, compelling the recorder’s office
to provide them and fulfill its statutory obligation.61
Having established that PennDOT and its predecessor had a duty to ensure proper
recording and indexing, we are left with the question of whether the condemnation in this
case was effective. According to the Commonwealth Court, this Court “has specifically
held that Section 210 . . . ‘provides that the Governor’s approval shall be considered to
58 21 P.S. § 358 (emphases added); (footnotes and original emphasis omitted).
59 Bindas, 260 A.3d at 999.
60 36 P.S. § 670-210.
61 See, e.g., Morganelli v. Casey, 646 A.2d 744 (Pa. 1994) (affirming the issuance of
a writ of mandamus to direct the Governor to fulfill a statutory mandate); see also supra
n.9 and accompanying text.
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work a condemnation.’”62 This conclusion is problematic for at least three reasons. First,
the sentence that the Commonwealth Court cited appears in a section of this Court’s
opinion in which we relayed the appellees’ arguments, and there is no apparent
analysis.63 Accordingly, to treat this passage as a specific holding warrants significant
skepticism. Second, regardless of whether the paraphrase of Section 210 originated with
this Court or with the appellees, a word changes. The statutory text—the Governor’s
approval “shall be considered to be the condemnation”64—became the Governor’s
approval “shall be considered to work a condemnation,”65 implying effectuation and
action.66 It goes without saying that this Court must be more careful than that with the
plain text of the law. Third, and perhaps most critically, the language of Section 210 in
question continues on:
The approval of such plan or plans by the Governor shall be considered to
be the condemnation of an easement for highway purposes from all
property within the lines marked as required for right of way and the
condemnation of an easement of support or protection from all property
within the lines marked as required for slopes.67
The thrust of this sentence is thus the physical scope of the easement and what would
surround it. It does not shed light upon the standard for compliance with Section 210.
62 Bindas, 260 A.3d at 999 (quoting Appeal of Commonwealth, 221 A.2d at 291).
63 See Appeal of Commonwealth, 221 A.2d at 291 (“Appellees base their contention
on a number of factors . . .”); id. (“[T]he details shown on the plans, say appellees, indicate
conformity . . .”).
64 36 P.S. § 670-210 (emphasis added).
65 Appeal of Commonwealth, 221 A.2d at 291.
66 If the Governor’s approval works a condemnation, any condemnation with the
Governor’s approval is valid. However, a condemnation with the Governor’s approval
can be while nonetheless suffering from any number of other legal deficiencies.
67 36 P.S. § 670-210 (emphasis added).
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A point made by Judge Ceisler in dissent below also undermines PennDOT’s
reading. As she noted, Section 210 does not countenance just any plan with
gubernatorial approval, but “such plan,” which is defined in the preceding sentence as
one that is “filed as a public record in the office of [PennDOT] and a copy thereof . . .
recorded in the office for the recording of deeds in the proper county . . . in a plan book
or books provided by that county for that purpose.”68 We therefore reap little guidance
from the above-quoted portion of Section 210 and from Appeal of Commonwealth.
We find McGowan to be similarly unhelpful. As a decision of the Commonwealth
Court, it is, of course, non-binding upon us. More importantly, that decision is
distinguishable from the case sub judice for several reasons. In McGowan, it was not
clear whether the plan at issue was filed pursuant to Section 210 or Section 206 of the
State Highway Law;69 the court did not rule upon the validity of the condemnation because
a copy of the plan did not appear in the record;70 the case concerned owners of record
as opposed to subsequent purchasers; and it is again ambiguous whether the passage
upon which PennDOT relies71 constituted part of the court’s reasoning, as opposed to a
recitation of the parties’ arguments.72 Accordingly, McGowan adds little to our analysis.
68 Bindas, 260 A.3d at 1006 (Ceisler, J., dissenting) (quoting 36 P.S. § 670-210)
(emphases removed).
69 See McGowan, 450 A.2d at 234 (“[W]e are unable to verify . . . whether [the plan]
was filed pursuant to Section 206 or Section 210.”).
70 See id. (“Since we do not have a copy of the plan before us, we are unable to verify
whether the plan was actually filed in Montgomery County”); id. (“The problem with DOT’s
argument . . . is that the record in this case contains no copy of the pertinent plan.”).
71 See id. (citing Pane, 222 A.2d at 913; Strong, 161 A.2d at 380) (“The filing of the
plan in the county office for the recording of deeds constitutes constructive notice of the
condemnation to all affected landowners.”).
72 Id. at 233 (“More specifically, DOT argues . . .”); id. at 234 (“DOT contends that
such a plan was indeed approved by the Governor . . .”).
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Notably, the Commonwealth Court majority in this case agreed with the dissents
upon one point: the 1958 Plan at issue here was not recorded in a plan book, nor was it
indexed in a locality index.73 In other words, the requirements of Section 210 were not
met. Had they been, Bindas’ title searcher presumably would have had no trouble in
locating evidence of the Plan in the Washington County Recorder of Deeds’ office. It
would have been in the plan book and the locality index, as opposed to an unlabeled
drawer in a filing cabinet,74 and such proper filing would have relieved the public of the
burdens associated with hunting for items that the General Assembly intended to be
matters of public record.
We conclude that the failure to comply with the requirements of Section 210
renders the 1958 Plan invalid insofar as it purported to establish an easement upon
Bindas’ property. To hold otherwise, this Court would endorse a reading of that provision
that reduces its explicit references to recording in a plan book and indexing to mere
superfluity. This we must avoid.75
73 See Bindas, 260 A.3d at 999 (noting “the failure of the County Recorder’s Office
to properly record the Plan in a plan book nor index the Plan in a locality index”).
74 See Notes of Testimony, 9/5/2017, at 35-38, 88. PennDOT cites two statutes for
the proposition that “[m]icrofilm,” the material upon which the 1958 Plan was stored, “is a
permitted method of maintaining recorded and public documents.” PennDOT’s Br. at 23
n.8 (citing 53 Pa.C.S. § 1388; 65 P.S. § 63.1). In the absence of Section 210, pointing to
such authority might be sufficient. But that provision specifically requires that a copy of
the plan be “recorded . . . in a plan book.” 36 P.S. § 670-210 (emphasis added). Absent
evidence of record that the microfilm here was contained in a plan book, PennDOT’s
contention here is irrelevant.
75 See Commonwealth v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009) (“We are not
permitted to ignore the language of a statute, nor may we deem any language to be
superfluous.”); Commonwealth v. Lobiondo, 462 A.2d 662, 664 (Pa. 1983) (“It is
presumed that every word, sentence or provision of a statute is intended for some
purpose and accordingly must be given effect.”).
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No other factors compel a different conclusion. The Commonwealth Court relied,
in part, upon the fact that DOH paid just compensation to the landowners in 1958 and the
fact that the Plan was approved by the Governor.76 While these are necessary conditions
to the creation of an easement, a plain reading of the statute leaves no doubt that they
are not by themselves sufficient. PennDOT argues that Bindas had actual notice of the
1958 Plan via the chain of title to the Carter property, but, as Judge Ceisler noted, there
is no evidence in the record establishing that fact.77
This Court finds no occasion to pass upon whatever questions may remain
regarding the scope of Bindas’ property interest78 or the availability of damages.79 We
granted allocatur to resolve two distinct legal issues, and we therefore leave the resolution
of remaining disputes in the capable hands of the trial court.
The order of the Commonwealth Court is vacated and the case is remanded for
proceedings consistent with this Opinion.
Chief Justice Todd and Justices Dougherty and Mundy join the opinion.
Justice Donohue files a dissenting opinion.
Justice Brobson did not participate in the consideration or decision of this matter.
76 Bindas, 260 A.3d at 999 (“[T]he Department of Highways . . . clearly compensated
the owners of the Property for the taking [in 1958] . . .”); id. (“[T]he Governor’s approval
shall be considered to work a condemnation . . .”), but see supra nn.62-68 and
accompanying text.
77 Id. at 1005 (Ceisler, J., dissenting).
78 See PennDOT’s Br. at 29-30.
79 See Bindas, 260 A.3d at 999 (“[T]he right to damages for a condemnation
proceeding belongs solely to the owner of the property and does not pass to a subsequent
purchaser.”) (quoting Synes Appeal, 164 A.2d 221, 223 (Pa. 1960)).
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