Bindas, D., Aplt. v. PennDOT

                                 [J-17-2023]
                   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.


                                      [J-17-2023] - 2
       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.


                                       [J-17-2023] - 3
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).


                                       [J-17-2023] - 4
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.


                                      [J-17-2023] - 5
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.


                                       [J-17-2023] - 6
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.


                                      [J-17-2023] - 7
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).


                                        [J-17-2023] - 8
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.).


                                      [J-17-2023] - 9
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…)

                                      [J-17-2023] - 10
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.


                                      [J-17-2023] - 11
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.


                                     [J-17-2023] - 12
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.


                                     [J-17-2023] - 13
       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.


                                      [J-17-2023] - 14
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.


                                     [J-17-2023] - 15
              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.


                                       [J-17-2023] - 16
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).


                                      [J-17-2023] - 17
       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 . . .”).


                                     [J-17-2023] - 18
      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.”).


                                     [J-17-2023] - 19
       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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