Eminent Domain; Condemnation; Actual Notice; Constructive Notice; Recording

Bindas v. PennDOT, 260 A.3d 991 (Pa. Cmwlth. 2021), allocatur granted June 8, 2022, appeal docket 27 WAP 2022

Donald R. Bindas (Landowner) appeals from the order of the Court of Common Pleas of Washington County (trial court) sustaining the preliminary objections (POs) filed by the Pennsylvania Department of Transportation (Department), and dismissing Landowner’s Petition for Appointment of a Board of Viewers filed pursuant to Section 502(c) of the Eminent Doman Code, “based on the Department’s claimed easement on 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 Right of Way Plan (Plan), which condemned the Property when it was owned by predecessors in title to the Property.” Slip op. at 1-2. The relevant factual and procedural history is as follows:

The Property was once part of a larger tract previously owned by Otto and Rose Koehler (Koehlers) and E. Helene Carter (Carter). On August 1, 1958, the Governor approved and signed the Plan, which provided for the construction of Interstate Route 70 (I-70), effectively condemning the Property and subjecting it to an easement. The Commonwealth’s Department of Highways, the Department’s predecessor, filed the Plan in its offices in Harrisburg and recorded it in the County Recorder’s Office on August 12, 1958. 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. 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. However, subsequent deeds in the chain of title for the condemned Carter property set forth this highway easement. 

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 Tax Claim Bureau by a deed dated December 15, 1976, and later by a corrective deed dated January 13, 1977. The Property was identified in both deeds to the Jaworskis by former tax parcel number 60-4-1084. Landowner purchased the Property from the Jaworskis in 1977, and the deed referenced parcel identification number 600-004-00-00-0036-00.

In 2015, the Department, through its contractor Golden Triangle Construction (Golden), began to construct a “diverging diamond interchange” on I-70. 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.  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. Landowner immediately objected to the Department’s trespass on the Property, which he considered to be his unencumbered land. 

On April 7, 2016, Sheila Sten (Sten) performed a title search for Landowner regarding title to the Property. Sten did not find a record of the Department’s interest in the Property or any reference to the 1958 Plan. Concurrently, the Department provided copies of the Plan to Sten and Landowner. Also around this time, Sten found an unindexed microfiche copy of the Plan in the County Recorder’s Office. As a result, Landowner executed a corrective deed in 2016 that altered the boundaries of the Property. 

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 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.” 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. She stated that in her initial 2016 search, she did not uncover an indexing or any claim by the Department. 

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. 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.” 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. 

Sten also testified that the indexing of plans is performed by the County Recorder’s Office. She stated that the highway right-of-way easement that she found had been recorded. Sten also acknowledged 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. 

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.

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. The trial court recognized that in 1958, Section 210 of the State Highway law governed eminent domain proceedings with respect to properties taken for the construction of highways. 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. The trial court concluded that the Department of 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.

Slip op. at 2-7 (internal citations omitted) (footnotes omitted). Landowner appealed the trial courts decision arguing that the trial court erred in concluding the Department of Highways properly condemned the Property pursuant to Section 210 because 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 argued that the trial court erred in concluding that the Department or the Department of Highways had no duty to ensure the Plan was recorded and indexed pursuant to Section 210 of the State Highway Law.

As a preliminary matter, Commonwealth Court addressed the issue of a de facto taking, explaining that a party asserting a de facto taking bears a heavy burden. Commonwealth Court concluded that no such taking occurred here 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[.]” Slip op. at 11.

Commonwealth Court next looked at the plain language of Section 210 and concluded that the Governor’s approval of the Plan and the subsequent filing and recording of same in the County Recorder’s Office “effectuated the Department of Highway’s condemnation of its right-of-way interest in the property.” Slip op. at 11. Commonwealth Court continued, explaining that the Supreme Court has specifically held that Section 210 “authorized 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.” Slip op. at 12 (internal citations omitted). Commonwealth Court concluded that the Department of Highways complied with Section 210 and compensated the owners of the Property at the time prior to the taking. In so concluding, Commonwealth Court explained “[t]he trial court specifically found that the Department established that all of the actions necessary for the condemnation of the Property occurred in 1958, including 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.” Slip op. at 12-13.

Commonwealth Court next addressed the failure of the County Recorder’s Office to properly record the Plan in a plan book and index the Plan in a locality index. Commonwealth Court concluded that this failure does not affect the validity of the condemnation of the Property. In so holding, Commonwealth court explained:

[T]he Department acquired its interest in the Property by the signed Plan that was recorded in the County Recorder’s Office on August 12, 1958. The Plan stated the names of all relevant landowners affected by the condemnation. 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. A copy of the Plan was also retained by the Department of Highways as required by Section 210 of the State Highway Law. Moreover, Section 210 plainly states 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.’”

Slip op. at 14 (internal citations omitted). Additionally, the chain of title of the Carter property that Landowner purchased referenced the portion of the Property that was condemned by the Department of Highways in its Plan. Accordingly, Commonwealth Court concluded Landowner had both constructive and actual notice of the Plan and, therefore, the Department of Highways properly condemned the Property pursuant to Section 210 of the State Highway Law.

Judge Ceisler dissented from the majority’s position writing that the plain language of Section 210 “requires that a highway plan be recorded in a plan book and indexed in a locality index by the Recorder of Deeds[,]” which did not occur in this case. Dissent Slip op. at 1 (Ceisler, J.) (emphasis omitted). Pursuant to the Statutory Construction Act, statutes providing for eminent domain are to be strictly construed and all provisions of a statute are to be construed as to give effect to all its provisions, if possible. Based on these cannons of statutory construction, Judge Ceisler concluded that the trial court violated these cannons “by ignoring the provisions of Section 210 of the State Highway Law requiring the proper recording and indexing of a highway plan.” Dissent slip op. at 2 (Ceisler, J.). Judge Ceisler cited to Commonwealth Court’s decision in Department of Transportation v. McGowan, 450 A.2d 232 (Pa. Cmwlth. 1982) which explained:

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.

Dissent slip op. at 2 (Ceisler, J.) (emphasis omitted). Judge Ceisler explained that the testimony before the trial court revealed that Sten, a title searcher for 33 years in Washington County, did not discover the 1958 highway easement in her original title search of the Property. “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 filing cabinet drawer in the Recorder of Deeds Office.” Dissent slip op. at 2-3 (Ceisler, J.). Thus, Judge Ceisler stated that Sten’s inability to locate the Plan through a traditional title search “demonstrates why proper recording and indexing are necessary to achieve condemnation.” Dissent slip op at 3 (Ceisler, J.).

Judge Cesiler explained:

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. 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.”

Dissent slip op. at 3 (Ceisler, J.) (emphasis omitted). Accordingly, applying the reasoning in Prouty, Judge Ceisler concluded that 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. Because Section 210 requires that a highway plan be recorded in a plan book or books provided by the county recorder of deeds and that this did not occur in this matter, Judge Ceisler concluded that the Plan was not properly recorded.

Judge Ceisler observed that there was no evidence Landowner received actual notice that his property was subject to the 1958 easement prior to the litigation. With respect to constructive notice, Judge Ceisler explained that “[t]he 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.” Dissent Slip op. at 5 (Ceisler, J.) (emphasis omitted). Judge Ceisler criticized the majority’s view as rendering Section 210 meaningless because, under the majority’s approach, all that would be required to condemn a property is that the Governor approve the plan and for the Department to present the plan to a county recorder of deeds office without ensuring that the plan is properly recorded or indexed. Accordingly, Judge Ceisler would reverse the trial court and remand the matter for the appointment of a board of viewers. 

Judge Covey joined in Judge Ceisler’s dissent but wrote separately to express her view that “based on established precedent, it was the Commonwealth of Pennsylvania, Department of Highways’ . . . burden to ensure proper recording and indexing, and it failed to do so here.” Slip op. at 1 (Covey, J., dissenting). Judge Covey explained that the Supreme Court’s decision in Prouty controls, wherein the Supreme Court held that both the recording and indexing were defective and each of the defects were fatal to the claim of the mortgagee. Addressing the majority’s distinction of Prouty, Judge Covey explained that, like in Prouty, each of the defects – recording and indexing – was fatal to the claim. Additionally, Judge Covey explained that “Pennslvania [c]ourts 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 It cannot hide behind a mistake of the recorder.’” Dissent slip op. at 3 (Covey, J.) (emphasis omitted) (collecting cases). Judge Covey concluded “[l]ike the statues at issues in Prouty, Section 210 . . . imposes a duty on the Recorder of Deeds Office to record plans and maintain indexed; 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 condemnation under Section 210[.]” Dissent slip op. at 4-5 (Covey, J.) (emphasis omitted).         

The Supreme Court granted allocatur to consider the following issues:

(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, 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?


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