IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald R. Bindas, :
:
Appellant :
:
v. : No. 652 C.D. 2018
: Argued: February 12, 2020
Commonwealth of Pennsylvania, :
Department of Transportation :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 18, 2021
Donald R. Bindas (Landowner) appeals from the February 26, 2018
order of the Court of Common Pleas of Washington County (trial court), which
sustained the preliminary objections (POs) filed by the Pennsylvania Department
of Transportation (Department), and dismissed Landowner’s Petition for
Appointment of a Board of Viewers that was filed pursuant to Section 502(c) of
the Eminent Domain Code,2 based on the Department’s claimed easement on
1
This case was assigned to the opinion writer before January 4, 2021, when Judge
Leavitt completed her term as President Judge.
2
26 Pa. C.S. §502(c). Section 502(c) states:
(Footnote continued on next page…)
Landowner’s property (Property), located in South Strabane Township
(Township), Washington County (County), pursuant to a highway right-of-way
that was established through a 1958 Construction and Condemnation of Right of
Way Plan (Plan),3 which condemned the Property when it was owned by
predecessors in title to the Property. We affirm.
The Property was once part of a larger tract previously owned by Otto
and Rose Koehler (Koehlers) and E. Helene Carter (Carter). Reproduced Record
(continued…)
(c) Condemnation where no declaration of taking has been
filed.--
(1) An owner of a property interest who asserts that the owner’s
property interest has been condemned without the filing of a
declaration of taking may file a petition for the appointment of
viewers substantially in the form provided for in subsection (a)
setting forth the factual basis of the petition.
(2) The court shall determine whether a condemnation has
occurred, and, if the court determines that a condemnation has
occurred, the court shall determine the condemnation date and the
extent and nature of any property interest condemned.
(3) The court shall enter an order specifying any property interest
which has been condemned and the date of the condemnation.
(4) A copy of the order and any modification shall be filed by the
condemnor in the office of the recorder of deeds of the county in
which the property is located and shall be indexed in the deed
indices showing the condemnee as grantor and the condemnor as
grantee.
3
“A right-of-way is an easement, which may be created by an express grant. Amerikohl
Mining Co., Inc. v. Peoples Nat. Gas, 860 A.2d 547 (Pa. Super. 2004) (citing Merrill v. Mfrs.
Light & Heat Co., [185 A.2d 573, 575 (Pa. 1962)]).” Berwick Township v. O’Brien, 148 A.3d
872, 883 (Pa. Cmwlth. 2016).
2
(R.R.) at 293a-296a. On August 1, 1958, the Governor approved and signed the
Plan, which provided for the construction of Interstate Route 70 (I-70), id. at 415a,
effectively condemning the Property and subjecting it to an easement. The
Commonwealth’s Department of Highways, the Department’s predecessor,4 filed
the Plan in its offices in Harrisburg and recorded it in the County Recorder’s
Office on August 12, 1958. Id. The Recorder’s Office did not maintain an index
for the plans that had been filed, loosely organizing the plans by the municipalities
involved in an unlabeled filing cabinet.
When the Department of Highways filed the Plan thereby condemning
the Property, just compensation was paid to the Koehlers and Carter. R.R. at 293a-
296a. Although the Koehlers and Carter executed quitclaim deeds for the Property
to confirm a settlement and the payment of just compensation for the
condemnation, those deeds were not recorded. Id. at 122a-125a. However,
subsequent deeds in the chain of title for the condemned Carter property set forth
this highway easement. Id. at 114a, 406a-414a.
On September 16, 1976, the Koehlers conveyed their interest in the
Property to the Washington County Tax Claim Bureau due to the non-payment of
taxes. Frances and Cecilia Jaworski (Jaworskis) purchased the Property from the
4
See, e.g., Section 2001 of The Administrative Code of 1929 (Administrative Code), Act
of April 9, 1929, P.L. 177, as amended, 71 P.S. §511 (“The Department of Transportation shall,
subject to any inconsistent provisions in this act contained, exercise the powers and perform the
duties by law vested in and imposed upon the said department, the Secretary of Transportation,
the former State Highway Department, former State Highway Commissioner, the former
Department of Highways, [and] the former Secretary of Highways . . . .”); Section 2003(e)(1) of
the Administrative Code, 71 P.S. §513(e)(1) (“The Department of Transportation . . . shall have
the power, and its duty shall be . . . [t]o acquire, by gift, purchase, condemnation or otherwise,
land in fee simple or such lesser estate or interest as it shall determine, in the name of the
Commonwealth, for all transportation purposes . . . .”).
3
Tax Claim Bureau by a deed dated December 15, 1976, and later by a corrective
deed dated January 13, 1977. R.R. at 262a-269a. The Property was identified in
both deeds to the Jaworskis by former tax parcel number 60-4-1084. Id. at 241a,
262a. Landowner purchased the Property from the Jaworskis in 1977, and the deed
referenced parcel identification number 600-004-00-00-0036-00. Id. at 184a-188a,
241a-245a, 247a-251a.
In 2015, the Department, through its contractor Golden Triangle
Construction (Golden), began to construct a “diverging diamond interchange” on I-
70. R.R. at 96a, 103a. As part of the project, a drainage system was installed on
property located between I-70, Country Club Road and Locust Avenue in the
Township. Id. at 105a. As part of the project, Golden constructed a retention pond
in the easement for its drainage and mitigation needs in order to control and slowly
release water into a perennial stream. Id. at 102a, 105a. Landowner immediately
objected to the Department’s trespass on the Property, which he considered to be
his unencumbered land. Id. at 103a.
On April 7, 2016, Sheila Sten (Sten) performed a title search for
Landowner regarding title to the Property. R.R. at 59a-60a. Sten did not find a
record of the Department’s interest in the Property or any reference to the 1958
Plan. Id. at 66a. Concurrently, the Department provided copies of the Plan to Sten
and Landowner. Id. at 66a-67a, 71a. Also around this time, Sten found an
unindexed microfiche copy of the Plan in the County Recorder’s Office. Id. at
67a-68a, 70a. As a result, Landowner executed a corrective deed in 2016 that
altered the boundaries of the Property. See id. at 416a-423a.
On August 8, 2016, Landowner filed a Petition for Appointment of a
Board of Viewers (Petition) under Section 502 of the Eminent Domain Code in the
4
trial court. The Department filed POs to Landowner’s Petition, asserting its right-
of-way over the Property under the 1958 highway easement. The trial court held a
hearing on September 5, 2017.
Sten testified that she searched records dating back to 1940 and the
incorporated tax parcel 60-4-1084 from the 1968 tax map, which she referred to as
the “old map.” R.R. at 62a-64a. Sten acknowledged that she was not aware of the
Property’s proximity to the Interstate, and she did not think to look for highway
right-of-way plans. Id. at 86a. She stated that in her initial 2016 search, she did
not uncover an indexing or any claim by the Department. Id. at 66a.
Sten acknowledged that when she was informed of the claimed right-
of-way, she found the Plan in microfiche form in an unlabeled drawer of a filing
cabinet located at the County Recorder’s Office. R.R. at 67a-68a, 71a. She
testified that a highway plan should be found in a right-of-way book or a highway
map. However, Sten stated that she had encountered issues before with highway
plans and other title searches that were not indexed, adding that she frequently
found “that documents pertaining to the interstate are not indexed, condemnations
and so forth, you couldn’t find them.” Id. at 81a. Sten explained that, based on her
experience, records of “older” condemnations, i.e., those prior to the year 2000, are
very difficult to find. Id. Reviewing her documents, Sten also said she that was
able to physically locate an oil and gas lease from Landowner to Rice Drilling. Id.
at 82a.
Sten also testified that the indexing of plans is performed by the
County Recorder’s Office. R.R. at 86a. She stated that the highway right-of-way
easement that she found had been recorded. Id. at 87a. Sten also acknowledged
5
that she had been in the Recorder’s Office many times and that she was aware of
the filing cabinet, which contained the 1958 highway plans. Id. at 89a.
Ultimately, on February 26, 2018, the trial court issued a
Memorandum Order sustaining the Department’s POs in part and dismissing the
Petition. In the Pa. R.A.P. 1925(a) opinion filed in support of its order, the trial
court explained that Landowner had purchased the Property in 1977. Noting that
Landowner executed a corrective deed to himself in 2016, the trial court accepted
Landowner’s description of the Property as the land between I-70, Country Club
Road, and Locust Avenue. Trial Court 5/24/18 Op. at 2.
Because the Department asserted a highway easement over the
Property based on the 1958 Plan, the trial court determined that the dispositive
issue was whether the failure of the County Recorder’s Office to index the 1958
Plan rendered the highway easement invalid. Trial Court 5/24/18 Op. at 3-4. The
trial court recognized that in 1958, Section 210 of the State Highway Law5
5
Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §670-210. Section 210 states, in
relevant part:
The secretary 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 . . . is made, the
secretary shall first submit a plan of the proposed change . . . 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
(Footnote continued on next page…)
6
governed eminent domain proceedings with respect to properties taken for the
construction of highways.6 The trial court determined that Section 210 required the
Department of Highways to: (1) develop a written plan; have the plan approved by
the Governor; (2) file the plan as a public record in the office of the Department of
Highways; and (3) file a copy of the plan in the office for the County Recorder of
Deeds at the Department of Highways’ expense and in a plan book provided by the
County. See id. at 5. The trial court concluded that, in 1958, the Department of
(continued…)
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.
Emphasis added.
6
As this Court has explained:
The procedure by which the Department condemned property
abutting state highways changed when the Eminent Domain Code
[] was enacted. Act of June 22, 1964, [P.L. 84, as amended,
formerly 26 P.S. §§1-101–1-903, repealed by the Act of May 4,
2006]. Prior to that enactment, pursuant to Section 210 of the State
Highway Law, []to change, alter, or establish a state highway, the
Department was required simply to file a condemnation plan with
the Pennsylvania governor who ultimately had the power to
approve or disapprove the plan.
Faleski v. Department of Transportation, 633 A.2d 1308, 1309 n.2 (Pa. Cmwlth. 1993).
7
Highways completed all of these tasks and that the failure to index the plan
following its recording was the fault of the County Recorder’s Office. Id. at 5-6.
The trial court rejected Landowner’s argument that the failure of the
County Recorder’s Office to index the Plan prevented the world from having
notice of the condemnation, explaining:
Some, but not all, of the deeds expressly refer to the
Highway easement and condemnation. Because the
property is a small parcel between a major highway and a
local road, a search for the Highway Plan would be
warranted by a prospective buyer. The Plan was
available in the [County] Recorder’s Office. A
[Department] employee, who was aware that a Plan was
filed in 1958, was able to locate the Plan within the
drawers in the [County Recorder’s Office] within five
minutes or so. [R.R. at 119a.]
Trial Court 5/24/18 Op. at 6.
The trial court noted that the Supreme Court has not addressed
whether the failure of a County Recorder’s Office to index a plan pursuant to
Section 210 of the State Highway Law invalidates an otherwise properly executed
condemnation under its provisions. However, the trial court observed that in First
Citizens National Bank v. Sherwood, 879 A.2d 178, 181-82 (Pa. 2005) (First
Citizens), the Supreme Court determined that a properly recorded mortgage was
deemed to provide constructive notice to all, pursuant to Section 2 of the Act of
April 24, 1931, P.L. 48, 21 P.S. §357,7 despite the fact that it had been defectively
7
Section 2 states:
The legal effect of the recording of such agreements shall be to
give constructive notice to subsequent purchasers, mortgagees,
and/or judgment creditors of the parties to said agreements of the
fact of the granting of such rights or privileges and/or of the
(Footnote continued on next page…)
8
indexed.8 The trial court concluded: “This case is analogous to that. A defective
indexing does not invalidate the instrument.” Trial Court 5/24/18 Op. at 7.
As the trial court explained:
[The Department of Highways] purchased this
property from the Koehlers and Carter through
(continued…)
execution of said releases, and the rights of the subsequent
purchasers, mortgagees, and/or judgment creditors of the parties to
said agreements shall be limited thereby with the same force and
effect as if said subsequent purchasers, mortgagees, and/or
judgment creditors had actually joined in the execution of the
agreement or agreements aforesaid.
8
The purchaser in First Citizens had searched a county mortgage index and found no
encumbrances. After the purchase was made, the purchaser learned of a mortgage on the
property that had been properly recorded, but not indexed. As a result, the purchaser brought a
quiet title action against the mortgagee, and the trial court granted summary judgment in favor of
the purchaser. On the mortgagee’s appeal, the Superior Court held that the purchaser would not
be deemed to have notice of a prior lien so long as a diligent search would not have uncovered
the lien. However, on further appeal, the Supreme Court reversed, relying on the plain language
of Section 2 of the Act of April 24, 1931. The Supreme Court reasoned that, per Section 2,
the legal effect of the recording of a written agreement such as a
mortgage is to give subsequent purchasers constructive notice of
the mortgage. There is no ambiguity in the statute. There is no
scope for us to read into that statute an equitable exception
whereby a subsequent purchaser may be excused from constructive
notice when the mortgage was properly recorded but improperly
indexed.
879 A.2d at 181. The Supreme Court rejected the purchaser’s assertion that Section 3 of the Act
of March 18, 1875, P.L. 32, 16 P.S. §9853, stating that “[t]he entry of recorded deeds and
mortgages in said indexes, respectively, shall be notice to all persons of recording of the same,”
created a negative inference that a subsequent purchaser lacked notice if a mortgage was not
properly indexed. Id. at 181-82. Finally, the Supreme Court also rejected the purchaser’s public
policy argument, reasoning that because the statutory language was unambiguous, the Court
could not decline to apply it on the basis that there might be better policy options. Id. at 182.
9
condemnation in 1958. [The Department of Highways]
paid them and the property owners tendered a quitclaim
deed. [Landowner] is asking this Court to divest that
property from [the Department of Highways] because a
third party, the [County Recorder’s Office] failed to
properly index a properly recorded document. The Court
will not do so. [Landowner] did not meet his heavy
burden to establish that a de facto taking occurred. The
Preliminary Objections were properly sustained and the
case was dismissed.
Trial Court 5/24/18 Op. at 7.
The trial court rejected Landowner’s assertion that Section 210 of the
State Highway Law imposes a duty on the Department of Highways “to ensure the
Plan was properly recorded in a Plan Book and indexed,” observing that the
Department of Highways “had no reason to know or question the [County]
Recorder’s Office. They maintained the Plan within their office. They received
confirmation and reference numbers that the Plan was in a Book in the [County
Recorder’s Office].” Trial Court 5/24/18 Op. at 7. In sum, the trial court
concluded that “[t]he [State] Highway Law placed the burden on the [County
Recorder’s Office]. [Landowner] points to no law or case which imposes a duty
[on the Department of Highways].” Id. at 8.
Finally, the trial court specifically noted that “Section 210 [of the
State Highway Law] states that ‘[t]he approval of such plan or plans by the
Governor shall be considered to be the condemnation.’ The law does not impose a
duty on the Commonwealth to ensure the local recording office has performed its
duties.” Trial Court 5/24/18 Op. at 8. Based on the foregoing, the trial court
issued the instant order sustaining the Department’s POs in part and dismissing
Landowner’s Petition, and Landowner then filed this appeal from the trial court’s
order.
10
On appeal,9 Landowner claims that trial court erred in determining
that the Department of Highways properly condemned the Property pursuant to
Section 210 of the State Highway Law because, although the Department of
Highways recorded the Plan in the County Recorder’s Office, the County
Recorder’s Office failed to record a copy of the Plan in a plan book and did not
index the Plan in a locality index. Landowner also contends that the trial court
erred in determining that the Department or its predecessor, the Department of
Highways, had no duty to ensure the Plan was recorded and indexed in accordance
with Section 210 of the State Highway Law. We do not agree.
As a preliminary matter, we note that a party asserting a de facto
taking carries the heavy burden of proving that a de facto taking has, in fact,
occurred. Riedel v. County of Allegheny, 633 A.2d 1325, 1328 (Pa. Cmwlth.
1993). In this case, because the Department of Highways effectuated a valid
condemnation of the Property in 1958 pursuant to the requirements of Section 210
of the State Highway Law, no de facto taking of an easement interest that the
Department already owns has occurred, and, therefore, Landowner cannot meet his
burden of proof. See, e.g., Appeal of Northeast Outdoor Advertising, Inc., 452
9
“‘Preliminary objections are the exclusive method under the [Eminent Domain] Code of
raising objections to a petition for the appointment of a board of viewers alleging a de facto
taking.’” Appeal of Graff, 827 A.2d 544, 547 n.3 (Pa. Cmwlth. 2003) (citation omitted).
Preliminary objections to a petition for the appointment of a board of viewers are much broader
in scope than preliminary objections in other civil cases because they are the procedural method
by which all threshold legal issues are resolved. Appeal of Perfection Plastics, Inc., 368 A.2d
917, 918 (Pa. Cmwlth. 1977). Preliminary objections are the proper means by which to
challenge the legal sufficiency of the claims in the petition for appointment of a board of
viewers. Id. “On appeal, this Court may overturn a trial court’s ruling on preliminary objections
to a petition for appointment of a board of viewers only where necessary findings of fact are not
supported by competent evidence or an error of law was committed.” Appeal of Graff, 827 A.2d
at 547 n.4 (citation omitted).
11
A.2d 81, 83 (Pa. Cmwlth. 1982) (denying a de facto taking claim where the
Department removed billboards illegally placed in the Department’s right-of-
way).10
As clearly stated in the current version of Section 210, the approval of
the Plan by the Governor as filed and recorded in the County Recorder’s Office
effectuated the Department of Highways’ condemnation of its right-of-way interest
in the Property. See 36 P.S. §670-210 (“The approval [of plans] by the Governor
shall be considered to be the condemnation of an easement . . . .”) (emphasis
added); Smith v. Commonwealth, 40 A.2d 383, 384 (Pa. 1945) (construing the
predecessor of Section 210 that included identical language establishing a firm date
of condemnation). See also Appeal of City of Harrisburg, 107 A.2d 868, 870 (Pa.
1954) (construing similar language in Section 208 of the State Highway Law, 36
P.S. §670-208,11 as providing for condemnation on the date of the Governor’s
10
This “Court may affirm the trial court for any reason so long as the basis of [the]
decision is clear.” Schenck v. Township of Center, 893 A.2d 849, 853 (Pa. Cmwlth. 2006),
appeal dismissed, 975 A.2d 591 (Pa. 2009).
11
Section 208 states, in relevant part:
No person shall be entitled to damages by reason of such
establishment of the ultimate width and lines of a State highway
for future construction; and, where the Commonwealth, by its
proper authorities, has improved or constructed or shall hereafter
improve or construct such State highway and, in so doing, has
taken or shall take a part only of the lands lying within the lines
shown by such plan, damages shall be allowed for and to the extent
of such actual taking only. Such taking shall be deemed to occur
only when right of way plans or construction drawings, prepared
by the department, showing thereon the right of way required for
highway purposes and for slopes, shall have been approved by the
secretary and the Governor and filed as a public record in the
office of the department.
12
approval of the highway plan as filed and recorded). Indeed, the Supreme Court
has specifically held that Section 210 “authorizes the Secretary of Highways to
take current action for highway purposes and provides that the Governor’s
approval shall be considered to work a condemnation.” Appeal of Commonwealth,
221 A.2d 289, 291 (Pa. 1966).
Not only did the Department of Highways follow the proper
procedures as set forth in Section 210 of the State Highway Law to condemn a
right-of-way with respect to the Property in 1958, the Department of Highways
also clearly compensated the owners of the Property for that taking at that time.
See R.R. at 122a-125a, 293a-296a. The trial court specifically found that the
Department established that all of the actions necessary for the condemnation of
the Property occurred in 1958, including the payment of just compensation to the
owners of the Property at that time. This determination is consistent with the
presumption that a property owner at the time of a taking was compensated for the
resultant damages incurred following the passage of 20 years. Coxe v. Lehigh
Valley Railroad Company, 158 A.2d 782, 786 (Pa. 1960); Florek v. Department of
Transportation, 493 A.2d 133, 136 (Pa. Cmwlth. 1985).
“It is clear that ‘[n]othing is more firmly settled in the law than the
fact that the owner of land at the time of condemnation by eminent domain
proceedings is entitled to any damages which result from the condemnation . . . .’
Smith, [40 A.2d at 384].” Chapleski v. Department of Highways, 291 A.2d 360,
362 (Pa. Cmwlth. 1972). Moreover, “[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. Synes Appeal, [164 A.2d 221, 223 (Pa. 1960)].” Florek,
493 A.2d at 136.
13
Moreover, 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 Department of Highways’ condemnation of the Property, and the
Department of Highways’ recording of the Plan in the County Recorder’s Office
provided Landowner with constructive notice of the Department’s easement.12 As
this Court has explained:
The [State Highway] Law provides that all such plans, as
proposed by the Secretary of Highways and approved by
the Governor, must be filed as a public record with the
Department of Highways and recorded in the appropriate
county. The filing of the plan in the county office for the
recording of deeds constitutes constructive notice of the
condemnation to all affected landowners. Pane v.
Department of Highways, [222 A.2d 913 (Pa. 1966)];
Strong Appeal, [161 A.2d 380 (Pa. 1960)].
Department of Transportation v. McGowan, 450 A.2d 232, 234 (Pa. Cmwlth.
1982) (footnote omitted).
In this case, the Department acquired its interest in the Property by the
signed Plan that was recorded in the County Recorder’s Office on August 12,
1958. R.R. at 116a-119a, 415a. The Plan stated the names of all the relevant
landowners affected by the condemnation. Id. at 286a, 399a. The Plan was signed
by the Governor, the Secretary of Highways, and the County Recorder when it was
recorded in the County Recorder’s Office. Id. at 116a-118a, 415a. A copy of the
Plan was also retained by the Department of Highways as required by Section 210
of the State Highway Law. Id. at 118a, 415a. Moreover, Section 210 plainly states
12
Landowner’s reliance on Prouty v. Marshall, 74 A. 550 (Pa. 1909), in this regard is
misplaced. See, e.g., First Citizens, 879 A.2d at 181-82 (“In Prouty, the mortgage in that
instance was not only improperly indexed but also defectively recorded. In this matter, it is
without question that the mortgage was properly recorded.”).
14
that 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.” 36 P.S. §670-210. See also First Citizens,
879 A.2d at 181 (“There is no ambiguity in the statute. There is no scope for us to
read into that statute an equitable exception whereby a subsequent purchaser may
be excused from constructive notice when the mortgage was properly recorded but
improperly indexed.”).
Furthermore, the chain of title of the Carter property that Landowner
purchased specifically referenced the portion of the Property that the Department
of Highways condemned in the Plan that was recorded in the County Recorder’s
Office:
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.
R.R. at 409a. See also Landowner’s 2016 Corrective Deed, R.R. at 419a
(“UNDER AND SUBJECT to the exceptions, reservations, and conditions set
forth or mentioned in deeds in the chain of title.”).
As the Pennsylvania Superior Court has observed:
Our law provides that “[i]t is always the duty of a
purchaser of real estate to investigate the title of his
vendor [,]” and the purchaser must exercise due diligence
in this regard. Ohio River Junction R. Co. v.
Pennsylvania Co., [72 A. 271, 273 (Pa. 1909)]. The
Supreme Court of Pennsylvania has explained the due
diligence obligation as follows:
15
[Purchasers’] title could be affected only with what
they actually or constructively knew at the time of
the purchase; necessarily, as to the latter, by what
they could have learned by inquiry of the person in
possession and of others who, they had reason to
believe, knew of facts which might affect the
[title], and also by what appeared in the
appropriate indexes in the office of the recorder of
deeds, and in the various courts of record whose
territorial jurisdiction embraced the land in
dispute; but not of that which they could not have
learned by inquiry of those only whom they had
reason to believe knew of the facts.
Lund v. Heinrich, [189 A.2d 581, 585 (Pa. 1963)]
(internal citations omitted). Accordingly, a purchaser
fulfills his or her due diligence requirement when he or
she examines the documents recorded in the county or
counties in which the property is situated and when he or
she asks the possessor about title, as well as any other
people the purchaser has reason to believe would know
about the status of the property’s title.
Nolt v. TS Calkins & Associates, LP, 96 A.3d 1042, 1048 (Pa. Super. 2014)
(footnote omitted). Thus, Landowner had both actual and constructive notice of
the Department of Highways’ recorded Plan affecting the Property, and had a duty
of due diligence to determine the extent of the Department’s interest in the
Property.
Based on the foregoing, the Department of Highways properly
condemned the Property pursuant to Section 210 of the State Highway Law
because the Department of Highways recorded the Plan in the County Recorder’s
Office as required, and just compensation was paid to the Property’s owners at the
time that the condemnation occurred. As a result, the trial court did not err in
sustaining the Department’s POs in part and in dismissing Landowner’s Petition.
16
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald R. Bindas, :
:
Appellant :
:
v. : No. 652 C.D. 2018
:
Commonwealth of Pennsylvania, :
Department of Transportation :
ORDER
AND NOW, this 18th day of May, 2021, the order of the Washington
County Court of Common Pleas dated February 26, 2018, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald R. Bindas, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, : No. 652 C.D. 2018
Department of Transportation : Argued: February 12, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COVEY FILED: May 18, 2021
I join in Judge Ceisler’s well-reasoned Dissenting Opinion, and write
separately to express my belief that based on established precedent, it was the
Commonwealth of Pennsylvania, Department of Highways’ (Department of
Highways) burden to ensure proper recording and indexing, and it failed to do so here.
I believe Prouty v. Marshall, 74 A. 550 (Pa. 1909), controls the instant outcome. In
Prouty, the Pennsylvania Supreme Court explained:
Both recording and indexing were alike defective, and each
of the defects was fatal to the claim of the mortgagee. The
failure to index properly is made so by the [A]ct of March
18, 1875 (P.L. 32) [(1875 Act)], which, after requiring, in the
first section, the recorder to prepare and keep two general
indexes, the one direct, and the other ad sectum, of all
mortgages recorded in his office, goes on to provide:
‘Sec[tion] 2. As soon as said indexes are prepared, it shall
be the duty of the recorder to index in its appropriate place
and manner every deed and mortgage thereafter recorded in
his office, at the time the same is recorded; and in case he
neglects to do so, he and his sureties shall be liable in
damages to any person aggrieved by such neglect.’
Prouty, 74 A. at 551 (emphasis added).
Notwithstanding the recorder’s statutory duty to properly record and index
deeds and mortgages, the Prouty Court concluded:
In the case at bar, the duty was upon the mortgagee to give
notice that [a mortgage had been executed to her] upon
the premises in question. If from any cause she fell short
of giving legal notice, the consequence must fall upon her.
She cannot hide behind the mistake of the recorder. It is
an easy matter for a mortgagee, or a grantee in each
particular instance, either in person, or by a
representative, to look at the record, and see that the
instrument has been properly entered. The instrument
itself is at hand. The names of the parties are known, and
comparisons are easily made. How would it be possible for
a subsequent purchaser to know anything about the facts?
The duty thus imposed upon the mortgagee in this respect,
involves no more, and no less, than is required of a
mortgagee, for his own protection, when before the money is
paid out upon the loan, an inspection of the judgment indexes
is necessary to see whether or not a judgment has been
entered against the mortgagor upon the same day on which
the mortgage is recorded. Some care must be exercised in
every such transaction. There is every reason why it
should be made the duty of the mortgagee to see that his
instrument is properly recorded. This will not in any way
interfere with the principle that, when the instrument is
certified as recorded, it shall import notice of the contents
from the time of filing; but that must be understood as in
connection with an instrument properly recorded. As said
above, the record is notice of just what it contains, no more
and no less. 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.
Id. at 552 (emphasis added).
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The Majority distinguishes Prouty on the basis that therein, the instrument
was both defectively recorded and improperly indexed and that here, “the Department
of Highways’ recording of the Plan in the County Recorder’s Office provided [Donald
R. Bindas] with constructive notice of the [Pennsylvania Department of
Transportation’s] easement.” Majority Op. at 14. As the Prouty Court made clear, in
that case, “each of the defects was fatal to the claim . . . .” Id. at 551 (emphasis added).
Further, Pennsylvania Courts have repeatedly applied the following principle: “The
person offering an instrument for record has a duty to see that it is properly
recorded and properly indexed, and cannot hide behind a mistake of the
recorder.” In re 250 Bell Rd., Lower Merion Twp., Montgomery Cnty., 388 A.2d 297,
300 n.3 (Pa. 1978) (emphasis added); see also 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
(Pa. Cmwlth. 2015); Commonwealth Fed. Sav. & Loan Ass’n v. Pettit, 586 A.2d 1021
(Pa. Cmwlth. 1991).
In Antonis v. Liberati, 821 A.2d 666 (Pa. Cmwlth. 2003), this Court held:
The trial court properly . . . [found] that Prouty’s admonition
that ‘[i]t is an easy matter for a mortgagee . . . either in person,
or by a representative, to look at the record, and see that the
instrument has been properly entered[,]’ imposed an
obligation on [a recording party’s attorney], by law, to ensure
that the documents were properly recorded . . . .
Antonis, 821 A.2d at 670 (emphasis omitted).
Later, after the Pennsylvania Supreme Court in First Citizens National
Bank v. Sherwood, 879 A.2d 178 (Pa. 2005), held that a properly recorded, but
defectively indexed mortgage provided constructive notice, the General Assembly
amended the relevant statute to require both proper recording and proper indexing for
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constructive notice.1 The General Assembly’s action effectively addressed the
concerns voiced in a dissent to Sherwood penned by former Justice Eakin, joined by
Justice Saylor, relying upon both Prouty and Antonis. Justice Eakin stated:
The duty of indexing mortgages and deeds is placed on the
Recorder of Deeds, but as between the parties, the
mortgagee ultimately bears the risk of improper
indexing. Section [3 of the 1875 Act] specifically addresses
the subject of notice: ‘the entry of recorded deeds and
mortgages in said indexes, respectively, shall be notice to all
persons of recording of the same.’ [Section 3 of the Act of
March 18, 1875, P.L. 32,] 16 P.S. § 9853. Clearly, the
absence of good indexing cannot be good notice. In order to
protect its interest and place those who may later search on
constructive notice, . . . the mortgagee must bear the
burden of checking the proper indexes after recordation
to insure that the Recorder of Deeds properly indexed
and recorded the mortgage. This is a small burden
indeed for the mortgagee -- it is an impossible burden to
place on the public. It is the mortgagee who asks for the
mortgage in return for advancing money. It is the
mortgagee that files the mortgage in order to protect its
security interest. Prouty, [74 A.] at 551 (‘[A mortgagee]
cannot hide behind the mistake of the recorder.’).
Sherwood, 879 A.2d at 184-85 (Eakin, J., dissenting) (bold emphasis added).
Like the statutes at issue in Prouty, Section 210 of the Highway Law2
imposes a duty on the Recorder of Deeds Office to record plans and maintain indexes;
however, that provision does not explicitly allocate the risk of defective recording or
indexing as between the parties. Nonetheless, consistent with Prouty, I would hold
that well-established principles recognizing the importance of notice, imposing the
duty upon the “person offering an instrument for record” apply equally to
1
Section 1 of the Act of April 24, 1931, P.L. 48, as amended, added by the Act of July 7,
2006, P.L. 596, 21 P.S. § 358 (requiring proper indexing in order for constructive notice to be found).
2
Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-210.
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condemnation under Section 210 of the Highway Law. In re 250 Bell Rd., 388 A.2d at
300 n.3. Accordingly, I would reverse the trial court’s order.
________________________________
ANNE E. COVEY, Judge
Judge Ceisler joins in this dissenting opinion.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald R. Bindas, :
Appellant :
:
v. : No. 652 C.D. 2018
: ARGUED: February 12, 2020
Commonwealth of Pennsylvania, :
Department of Transportation :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE CEISLER FILED: May 18, 2021
I respectfully disagree with the Majority’s conclusion that the Construction
and Condemnation of Right of Way Plan (1958 Plan) filed by the Commonwealth
of Pennsylvania Department of Highways (Department of Highways) was valid and,
thus, no de facto taking of Donald R. Bindas’s (Landowner) property occurred.
Unlike the Majority, I cannot conclude that there was no de facto taking simply
because the 1958 Plan was approved by the Governor of the Commonwealth of
Pennsylvania (Governor) and filed with the Washington County Recorder of Deeds
Office (Recorder of Deeds Office). The plain language of Section 210 of the State
Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-210, also
requires that a highway plan be recorded in a plan book and indexed in a locality
index by the Recorder of Deeds Office. Neither action occurred here.
Under the Statutory Construction Act of 1972, statutes providing for the
power of eminent domain are to be strictly construed. 1 Pa. C.S. § 1928(b)(4).
Statutes also must be construed to give effect to all of their provisions, if possible.
1 Pa. C.S. § 1921(a). In this case, I believe the Washington County Court of
Common Pleas (Trial Court) violated these established tenets of statutory
construction by ignoring the provisions of Section 210 of the State Highway Law
requiring the proper recording and indexing of a highway plan.
In Department of Transportation v. McGowan, 450 A.2d 232, 234 n.7 (Pa.
Cmwlth. 1982) (emphasis added), this Court recognized the necessity of properly
recording state highway easements with the county, stating:
Absent proper recording in the county, the Commonwealth could not
establish that a valid condemnation had occurred under [Section] 210
[of the State Highway Law], since constructive notice would be missing
and the trial court found that actual notice was never given. Of course,
due process requires either direct or indirect notice to a landowner that
his land is being taken by eminent domain. Angle v. Commonwealth, .
. . 153 A.2d 912 ([Pa.] 1959).
The testimony presented at the hearing before the Trial Court further
demonstrates why a highway plan must be properly recorded and indexed in order
to provide notice to affected landowners. Vincent Klmacko, a 16-year Department
of Transportation (DOT) employee who knew of the existence of the 1958 Plan,
testified that he located the 1958 Plan in the Recorder of Deeds Office “within five
minutes or so.” Notes of Testimony, 9/5/17, at 88. However, Sheila Sten, a title
searcher in Washington County for 33 years, testified that she did not discover the
1958 highway easement in her original title search of the Property. Id. at 28-29, 35.
After subsequently being informed of the 1958 Plan by Landowner’s counsel, Ms.
Sten found a packet of microfilm cards containing the 1958 Plan in an unlabeled
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filing cabinet drawer in the Recorder of Deeds Office. Id. at 35, 37, 88. The cards
were not indexed, and Ms. Sten had to search through several drawers to find them.
Id. at 37. Ms. Sten’s inability to locate the 1958 Plan through a traditional title search
demonstrates why proper recording and indexing are necessary to achieve
condemnation.
In Prouty v. Marshall, 74 A. 550 (Pa. 1909), our Supreme Court recognized
that the obligation to ensure that an instrument is recorded lies with the person or
entity seeking recordation of the instrument – in this case, the Department of
Highways. The Supreme Court held that with respect to legal instruments, such as
deeds and mortgages, it is the duty of the person offering an instrument for record to
ensure that the instrument is properly recorded and indexed. Id. at 552. The
Supreme Court reasoned that “[the mortgagee] cannot hide behind the mistake of the
recorder. It is an easy matter for a mortgagee, or a grantee in each particular
instance, either in person, or by a representative, to look at the record, and see that
the instrument has been properly entered.” Id. (emphasis added). Applying the
Supreme Court’s reasoning in Prouty, I believe the Department of Highways had a
duty to ensure that the 1958 Plan was properly recorded and indexed after presenting
the Plan to the Recorder of Deeds Office for filing. To rule otherwise would
contravene Prouty and the express requirements of Section 210 of the State Highway
Law.
The Majority disregards Prouty because in that case, the mortgage was not
properly recorded or indexed. The Majority instead relies on First Citizens National
Bank v. Sherwood, 879 A.2d 178 (Pa. 2005), wherein our Supreme Court held that
a properly recorded mortgage provided constructive notice, even though it had been
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defectively indexed.1 In doing so, the Majority appears to conclude that the 1958
Plan was properly recorded simply because DOT presented the Plan to the Recorder
of Deeds Office for filing. I cannot agree with this conclusion.
Although the 1958 Plan was marked “filed” by the Recorder of Deeds Office
and was assigned a volume and page number, the 1958 Plan was never actually
recorded in a plan book. Rather, a copy of the 1958 Plan was discovered on a
microfiche card in an unlabeled drawer in the Recorder of Deeds Office. Because
Section 210 of the State Highway Law explicitly requires that a highway plan be
“recorded in a plan book or books provided by the county [recorder of deeds] for
that purpose,” 36 P.S. § 670-210 (emphasis added), I would conclude that the 1958
Plan was not properly recorded and, therefore, First Citizens is distinguishable from
this case.
1
Following First Citizens, the General Assembly amended the statute at issue in that case
to specify that both proper recording and proper indexing are required for constructive notice, 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 otherwise, the
document shall be recorded, and one of the following conditions shall be satisfied:
(1) In counties where the [A]ct 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,
and includes documents presented for record in person, by mail, electronically or
in any other manner.
Section 1 of the Act of April 24, 1931, P.L. 48, as amended, added by the Act of July 7, 2006, P.L.
596, 21 P.S. § 358 (emphasis added).
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While it is true that Section 210 of the State Highway Law places the
responsibility for recording and indexing highway plans on the county recorder of
deeds offices, it would be unfair to permit DOT to condemn a landowner’s property
when all of the requirements of Section 210 have not been satisfied. The statute
provides that DOT shall file the plan “and a copy thereof shall be recorded in the
office for the recording of deeds in the proper county at the expense of [DOT].” 36
P.S. § 670-210 (emphasis added). Section 210 further provides that “[i]t 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.” Id. (emphasis added). What recourse does an aggrieved landowner have
when the Recorder of Deeds Office fails to satisfy its enumerated duties under the
State Highway Law?
Our Court has recognized that “due process requires either direct or indirect
notice to a landowner that his land is being taken by eminent domain.” McGowan,
450 A.2d at 234 n.7 (emphasis added). Here, however, there is no evidence that
Landowner had actual notice that his property was subject to the 1958 highway
easement prior to this litigation. As for constructive notice, the Majority relies on
the general description of the property in the deed to Landowner and the filing of the
plan with the Recorder of Deeds Office in 1958. However, the key issue is whether
the Department of Highways’ filing of the plan – absent the subsequent recording
of the plan in a plan book and indexing of the plan by the Recorder of Deeds Office
– provided constructive notice to Landowner.
Under the Majority’s interpretation of Section 210 of the State Highway Law,
all that is required for property to be condemned by DOT is that the Governor
approve the plan and that DOT present the plan to the county recorder of deeds office
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for filing, without ever ensuring that the plan is properly recorded or indexed. Such
an interpretation renders the remainder of Section 210 meaningless. Although
Section 210 states that the Governor’s approval “of such plan . . . shall be considered
to be the condemnation of a[] [highway] easement,” “such plan” is described in the
prior sentence as a plan that is “filed as a public record in the office of [DOT] and a
copy thereof . . . recorded in the office for the recording of deeds in the proper county
at the expense of [DOT] in a plan book or books provided by the county for that
purpose.” 36 P.S. § 670-210 (emphasis added). Furthermore, Section 210 later
references “[a]ll plans or orders so approved, filed and recorded,” id. (emphasis
added), indicating that all three actions are required for condemnation, and that
“filing” and “recording” are not synonymous, as the Majority seems to suggest.
For these reasons, I would reverse the Trial Court’s Order and remand this
matter to the Trial Court for the appointment of a board of viewers.
__________________________________
ELLEN CEISLER, Judge
President Judge Brobson and Judge Covey join in this Dissenting Opinion.
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