Summary
discerning the meaning of a mortgage assignment statute by viewing it in the context of how it had been interpreted by Pennsylvania Courts for over a hundred years
Summary of this case from Commonwealth v. SimmonsOpinion
No. 67 MAP 2017
04-26-2019
MERSCORP, INC. n/k/a MERSCORP Holdings, Inc. ; Mortgage Electronic Registration Systems, Inc.; Bank of America, N.A.; CitiMortgage, Inc.; Citibank, N.A.; Credit Suisse Financial Corporation ; Everhome Mortgage Company; JP Morgan Chase Bank, N.A.; State Farm Bank F.S.B.; Wells Fargo Bank, N.A.; Sovereign Bank; HSBC Bank USA, N.A.; HSBC Finance Corporation; Gateway Funding Diversified Mortgage Services, L.P. n/k/a Finance of America Mortgage LLC; Customers Bancorp, Inc.; Customers Bank; The Bank of New York Mellon; The Bank of New York Mellon Trust Company, N.A.; Deutsche Bank National Trust Company; Deutsche Bank Trust Company Americas; Santander Bank, N.A. f/k/a Sovereign Bank, N.A. ; and Trident Mortgage Company, L.P., Appellees v. DELAWARE COUNTY, Pennsylvania, Recorder of Deeds, by and Through Thomas J. Judge, Sr., in His Official Capacity as the Recorder of Deeds of Delaware County, Pennsylvania; Frederick C. Sheeler, in His Official Capacity as Recorder of Deeds in and for the County of Berks, Pennsylvania ; The Office of the Recorder of Deeds in and for the County of Berks, Pennsylvania ; The County of Berks, Pennsylvania ; Joseph J. Szafran, in His Official Capacity as Recorder of Deeds in and for the County of Bucks, Pennsylvania ; The Office of the Recorder of Deeds in and for the County of Bucks, Pennsylvania ; The County of Bucks, Pennsylvania ; Richard T. Loughery, in His Official Capacity as the Recorder of Deeds in and for the County of Chester, Pennsylvania; The Office of the Recorder of Deeds in and for the County of Chester, Pennsylvania; and The County of Chester, Pennsylvania, Appellants
OPINION
We consider whether the Commonwealth Court correctly determined that 21 P.S. § 351, "Failure to record conveyance," does not create a mandatory duty to record all mortgages and mortgage assignments in a county office for the recorder of deeds. We hold the Commonwealth Court did not err, and therefore affirm.
This appeal arose from four separate, yet substantively similar, lawsuits filed by the county recorders in Delaware, Chester, Bucks and Berks Counties and their respective Counties (collectively, the Recorders). Pursuant to Pa.R.C.P. 213.1 (Coordination of Actions in Different Counties), the suits filed by the Delaware, Chester and Bucks County Recorders were coordinated in the Court of Common Pleas for Delaware County in April 2015, and the suit filed by the Berks County Recorder was coordinated into the Delaware County action in October of 2015. The Recorders sued appellees, MERSCORP, Inc., its wholly-owned subsidiary, Mortgage Electronic Registration Systems, Inc. (MERS), and several financial institutions who are members of MERS (collectively, MERSCORP). MERSCORP owns and operates the MERS® System, which is a national electronic registry system for promissory notes associated with mortgages and secured by residential real estate. The MERS® System permits its members to transfer promissory notes associated with mortgages between and among its financial institution members. After a member-to-member transfer of a note, MERS remains the mortgagee and title holder of record as a "nominee" for the holder of the promissory note and its successors and assigns. Under this system, MERS facilitates operation of the secondary market for mortgages by enabling its members to transfer the right to repayment on the note associated with a mortgage to other members by recording the transfers only in the MERS database. Thus, priority for the mortgage is established within the MERS® System for purposes of notification to the members, even when the transfers of the note are not recorded in county recording offices. As a result, county recording fees may be avoided by MERS members.The Recorders' complaints set forth six identical claims based on Section 351 of Title 21 (Deeds and Mortgages), which is entitled "Failure to record conveyance," and provides as follows:
The Recorder for Delaware County, Thomas J. Judge, Sr. filed a complaint in the Delaware County Court of Common Pleas in October 2013. The complaint was removed to Federal Court, and then remanded back to the Delaware County Court of Common Pleas. Recorder Judge then filed an amended complaint in the Delaware County Court of Common Pleas on October 30, 2015. The Recorders for Chester County, Richard T. Loughery, and Bucks County, Joseph J. Szafran, filed complaints in their respective Courts of Common Pleas in October 2014. Lastly, the Recorder for Berks County, Frederick C. Sheeler, filed a complaint in the Berks County Court of Common Pleas on October 15, 2015.
The complaints included the following counts: (1) Quiet Title; (2) Negligent or Willful Violation of 21 P.S. § 351 ; (3) Unjust Enrichment; (4) Civil Conspiracy to Violate 21 P.S. § 351 ; (5) Aiding and Abetting; and (6) Declaratory Judgment and Permanent Injunction.
All deeds, conveyances, contracts, and other instruments of writing wherein it shall be the intention of the parties executing the same to grant, bargain, sell, and convey any lands, tenements, or hereditaments situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, shall be recorded in the office for the recording of deeds in the county where such lands, tenements, and hereditaments are situate. Every such deed, conveyance, contract, or other instrument of writing which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee or holder of any judgment, duly entered in the prothonotary's office of the county in which the lands, tenements, or hereditaments are situate, without actual or constructive notice unless such deed, conveyance, contract, or instrument of writing shall be recorded, as aforesaid, before the recording of the deed or conveyance or the entry of the judgment under which such subsequent purchaser, mortgagee, or judgment creditor shall claim. Nothing contained in this act shall be construed to repeal or modify any law providing for the lien of purchase money mortgages.
A virtually identical challenge to the MERS® System was already proceeding in the United States District Court for the Eastern District, filed in 2011 by the Recorder of Deeds for Montgomery County, Pennsylvania, Nancy Becker (the Federal Action). The Federal Action was a putative class action complaint against MERSCORP seeking a declaratory judgment and permanent injunction establishing MERS members failed to record mortgage assignments in violation of Section 351. In 2012, the District Court held Section 351 creates a mandatory obligation on the part of MERS and its members to record documents memorializing the transfer of promissory notes. Montgomery Cty. v. MERSCORP, Inc. , 904 F.Supp.2d 436 (E.D. Pa. 2012). Proceedings in the Delaware County coordinated actions were stayed pending appeal of the Federal Action.
On August 3, 2015, the Third Circuit Court of Appeals reversed the District Court's decision and held Section 351 does not create a mandatory duty to record all land conveyances. Montgomery Cty. v. MERSCORP Inc. , 795 F.3d 372 (3d Cir. 2015). Relying on the Third Circuit's decision, MERSCORP filed preliminary objections in the nature of a demurrer to the Recorders' complaints seeking dismissal on the basis that Section 351 does not provide a duty to record, and the Recorders do not have authority to enforce Section 351 in any event. The court overruled the preliminary objections, and denied MERSCORP's request to certify its interlocutory order for an immediate appeal. See 42 Pa.C.S. § 702(b) (court may certify interlocutory order as involving controlling question of law on which there is substantial ground for difference of opinion and immediate appeal may materially advance ultimate termination of matter).MERSCORP then filed a petition for review in the Commonwealth Court. See Pa.R.A.P. 1311(b), Note (where lower court refuses to amend interlocutory order to allow immediate appeal, petition for review is proper mode to determine whether prerogative appellate correction is required). The Commonwealth Court granted review of the following issues: "(1) whether Section 351 requires the recording of all mortgages and mortgage assignments; and (2) whether the General Assembly conferred on the Recorders a right of action to enforce Section 351." MERSCORP, Inc. v. Delaware Cty. , 160 A.3d 961, 964 (Pa. Cmwlth. 2017).
A divided Commonwealth Court reversed. The majority agreed with the Third Circuit's conclusion in the Federal Action, specifically ruling " Section 351 does not issue a blanket command that all conveyances must be recorded; it states that a conveyance ‘shall be recorded’ in the appropriate place, or else the party risks losing his interest in the property to a bona fide purchaser." MERSCORP , 160 A.3d at 965, quoting Montgomery Cty. , 795 F.3d at 377. The majority observed the plain language of Section 351 does not specify which party to a transaction must record a conveyance, nor does it state when recording must take place. The majority also recognized Pennsylvania courts have consistently interpreted Section 351 and other provisions of Title 21 as intended to protect subsequent mortgages and purchasers, and that the failure to record inherently provides a limited consequence — the loss of a priority interest. Id. at 965-66. The majority found further support for its conclusion in precedent recognizing as valid even unrecorded interests in land. Id. at 966, citing U.S. Bank N.A. v. Mallory , 982 A.2d 986, 993 (Pa. Super. 2009) (recording mortgage assignment not prerequisite to filing complaint in mortgage foreclosure and failure to record does not negate validly executed mortgage assignment).
Judge Wojcik authored the majority opinion, which was joined by Judge Leavitt, Judge Hearthway and Judge Cosgrove. Judge Brobson authored a dissenting opinion joined by Judge McCullough and Judge Covey. Judge Cohn Jubelirer did not participate.
In addition, the majority held Section 351 does not confer any authority upon the Recorders to enforce Section 351. Id. at 968, citing Montgomery Cty., 795 F.3d 372. The majority noted the Recorders have a ministerial duty to the public to record and safeguard records presented to them for recording, but that duty does not confer standing to file actions to protect the public from "inaccurate" records in the MERS® system. Id.
Judge Brobson's dissent was based on the appeal's procedural posture, arising from preliminary objections. His dissent noted preliminary objections may be sustained only "where it is clear and free from doubt that the pleader has not pleaded facts sufficient to establish his right to relief." 160 A.3d at 969 (Brobson, J., dissenting), quoting P.J.S. v. Pa. State Ethics Comm'n , 669 A.2d 1105, 1108 (Pa. Cmwlth. 1996). Judge Brobson conceded that, while he may ultimately agree with the majority on the merits of the case, a "whiff of doubt" remained such that he would permit the case to proceed past the pleading stage before rendering a final judgment. Id.
We granted the Recorders' petition for allowance of appeal on the following issues:
(1) Whether the Commonwealth Court erred in ruling that [MERSCORP] may systematically evade Pennsylvania's land recording statutes, including 21 P.S. § 351, and not record many thousands of conveyances in the Offices of the Recorders of Deeds across the Commonwealth?
(2) Whether the Commonwealth Court erred in ruling that Recorders of Deeds and Counties do not possess standing or a right of action to pursue claims against Respondents that have deliberately engaged in a course of conduct that undermines the public land recording system and is without precedent in the long history of Pennsylvania's recording laws?
MERSCORP, Inc., v. Delaware County, Recorder of Deeds et. al , 643 Pa. 644, 174 A.3d 549 (2017) (per curiam). These issues require statutory interpretation, and are thus pure questions of law. Accordingly, our standard of review is de novo and our scope of review is plenary. Schappell v. Motorists Mut. Ins. Co. , 594 Pa. 94, 934 A.2d 1184, 1187 (2007). In such cases, we must ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). We are cognizant that, "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Id. § 1921(b). Moreover, we presume the General Assembly did not intend a result that is "absurd, unreasonable, or impossible to execute." In re Concord Twp. Voters , 632 Pa. 311, 119 A.3d 335, 341-42 (2015).
We turn first to the Recorders' argument Section 351 mandates the recording of all conveyances, including all mortgages and mortgage assignments. The Recorders emphasize the plain language of Section 351, which provides "all ... conveyances ... shall be recorded in the [appropriate county] office for the recording of deeds." Appellants' Brief at 19, citing 21 P.S. § 351 (emphasis added). The Recorders observe Pennsylvania adheres to the "title theory" of mortgages, which "deems a mortgage to be a conveyance." Id. at 21, citing Pines v. Farrell , 577 Pa. 564, 848 A.2d 94, 99 (2004) (mortgage assignments are "conveyances" for purposes of Pennsylvania's recording acts). The Recorders submit the Commonwealth Court's decision incorrectly permits a decoupling of the mortgage from the note to evade recording requirements, undermining and eroding the need for public recording in the Counties, contrary to the clear language of Section 351. The Recorders assert the court's interpretation rewrites Section 351 as an optional procedure rather than a requirement, i.e. , if one chooses to record a conveyance, Section 351 merely provides the manner for doing so. See Appellants' Reply Brief at 7.
Additionally, the Recorders rely on the history of recording statutes to support their argument the General Assembly's use of the word "shall" should be read to mandate recording in the Counties in every instance. The Recorders observe a system for local recording of land transfers was established in 1715, and once that local system was established, the General Assembly amended the law to mandate recording of deeds, conveyances, and mortgages in the country recorder's office within six months of execution. See Appellants' Brief at 22, citing Act of March 18, 1775, 1 Sm. L. 422 (App. 13) (the Enrollment Act). The Recorders also refer to the General Assembly's enactment of additional legislation in 1841 (Section 441) which required the recording of all deeds or conveyances which were executed before the 1775 mandate came into effect. Id. at 23, quoting 21 P.S. § 441 ("It shall be the duty of all persons who claim any lands ... in this commonwealth ... bearing date previously to the act of 18th March 1775 ... to have the same recorded, in the proper county, in the manner now provided by law ..."). The Recorders thus conclude the General Assembly has historically required the recording of all conveyances (which would include the mortgages and mortgage assignments at issue here) in the Counties, and the Commonwealth Court's contrary interpretation of Section 351 that allows filing in the MERS® System only runs afoul of this clear statutory mandate. See Id. at 23-24.
The Recorders find further support for their position in Section 356 of Title 21, which provides an interest in real property "shall be recorded in the office for the recording of deeds in the county or counties wherein such real properly is situate." Id. at 24, quoting 21 P.S. § 356. The Recorders assert Section 351 and 356 are related and must be read in pari materia , leading to the inevitable conclusion that Section 351 provides a mandatory duty to record all conveyances, including the mortgages and assignments at issue here. The Recorders argue the Commonwealth Court's finding Section 351 to be "optional" and "discretionary" while Section 356 is mandatory, leads to an absurd result, and runs afoul of the rules of statutory construction. Id. at 25, citing 1 Pa.C.S. § 1922(1) ("the General Assembly does not intend a result that is absurd ..."). The Recorders further observe an examination of the recording statutes reveals many other statutes which are expressly permissive on their face, and distinguishes them from the mandatory language in Section 351.
Appellants' Brief at 25-26, citing 21 P.S. § 383 ("deeds of county commissioners ... may be recorded in the office for recording deeds"); 21 P.S. § 384 (letters of attorney authorizing contracts to be made "may be placed of record in the recorder of deeds office"); 21 P.S. § 385 (patents granted by the Commonwealth "may be recorded in the office for recording deeds"); 21 P.S § 386 (releases for satisfaction "may ... be recorded in the office for recording of deeds"); 21 P.S. § 390 (deeds and patents granted by the Commonwealth "may be recorded in the office for recording of deeds"); 21 P.S. § 391 (releases and contracts by married women "may be recorded in the office for recording deeds"); 21 P.S. § 404 (any lease or sublease "may ... be recorded in the office for the recording of deeds"); 21 P.S. § 451 (affidavit which "may affect title to real estate ... may be recorded") (emphases added). The Recorders thus conclude the General Assembly created a recording scheme which requires core documents transferring lands — including mortgage assignments — to be recorded in the Counties in order to provide a complete chain of title. Id. at 27.
The Recorders also counter MERSCORP's reliance on Section 623, 21 P.S. § 623 (repealed), which once provided a mortgage assignment may be recorded, for the opposite proposition. The Recorders advise Section 623 was passed by the General Assembly only to clarify inconsistent caselaw and reinforce the rule that mortgage assignments fall within the scope of Pennsylvania's recording acts and could be recorded to provide constructive notice of the assignment. See Appellants' Reply Brief at 14.
In light of the above, the Recorders argue the Commonwealth Court disregarded both the history of Pennsylvania's recording statutes and the public policy that mortgages and mortgage assignments be recorded in the public record. The Recorders assert that, in order to give effect to all the provisions in Section 351, the word "shall" cannot be read as merely permissive. The Recorders further allege the Commonwealth Court improperly conflated the question of whether unrecorded transfers of property are enforceable with the more pertinent question of whether Section 351 provides a mandatory recording requirement. The Recorders submit whether an unrecorded instrument may be enforced is irrelevant to the interpretation of Section 351, which explicitly requires recording. MERSCORP asserts the Commonwealth Court properly held Pennsylvania law does not impose a mandatory duty to record mortgages or mortgage assignments. MERSCORP observes in the 300 years the recording statutes have been in effect, they have never been interpreted to mandate recording, and this Court has specifically held "the language of the Acts of Assembly providing for recording of written instruments has not generally been mandatory.... It is optional whether or not to record." Appellees' Brief at 15, quoting Appeal of Pepper , 77 Pa. 373, 377 (1875) ; see also Fisher v. Knox, 13 Pa. 622, 626 (1850) ("the grantee was not bound by the recording acts to [record] his deed" and "no law requires such an assignment to be" recorded); Mott v. Clark , 9 Pa. 399, 406 (1848) ("assignee is not bound to [record] his assignment, and is in no default"). See also id. at 16, citing Montgomery Cty . 795 F.3d at 377, n.4 ("There are ... decisions of Pennsylvania Courts referring to recording as ‘optional’ and ‘not obligatory.’ "). MERSCORP avers the Commonwealth Court properly followed this 300 year-old precedent and the Recorders fail to provide any reason to depart from the settled law.
Amicus Curiae Briefs were filed in support of the Recorders by: (1) Pennsylvania Legal Aid Network, Legal Aid of Southeastern Pennsylvania, MidPenn Legal Services, National Association of Consumer Advocates National Consumer Law Center and the Consumer Credit Counseling Service of Delaware Valley (collectively the "Public Interest Organizations"); (2) AFSCME Counsel 13 ("AFSCME"); and (3) County Commissioner's Association of Pennsylvania, Pennsylvania Recorder of Deeds Association, and the National Association of Independent Land Title Agencies (collectively the "County Commissioners"). The Amici all challenge the MERS® System as contrary to the underlying principles pivotal to Pennsylvania's recording system and seek reversal of the Commonwealth Court's decision. See Public Interest Organizations Amicus Brief at 14-22 (MERS® System improperly circumvents public recordation system, is subject to fraud, and prevents homeowners from having access to chain of title); see also AFSCME's Amicus Brief at 4-12 (MERS® System disregards purpose behind Pennsylvania's recordation system to make purchase and sale of land easily obtainable, creates potential for fraud in ownership of real property and forfeits revenue due to Commonwealth in form of fees required to be paid as part of mortgage transfer); County Commissioners' Amicus Brief at 13-18 (MERS® System is caustic to Pennsylvania's recording system which serves public at large, as it creates unclear chains of title, hampering rights of property owners).
MERSCORP also challenges the Recorders' interpretation of Section 351 that the phrase "shall be recorded" creates a mandatory duty as being taken out of context. According to MERSCORP, the plain text, history, and purpose of Section 351 all indicate the General Assembly never intended to require recording, and the phrase "shall be recorded" serves only to dictate the place where an instrument should be recorded if it is recorded, and also inform property owners of the steps to be taken to safeguard their interests. MERSCORP further notes Section 351 itself does not state that a failure to record is a violation of the statute. See Id. at 18-19, quoting Montgomery Cty. 795 F.3d at 376-77. MERSCORP further notes Section 351 does not signal a legislative intent to impose a duty to record by, for example, specifying when the document must be recorded or any penalties for a failure to record. Id. at 19.
MERSCORP submits the General Assembly is clear when indicating recording is mandatory, as demonstrated by Section 682 of Title 21, which plainly specifies: (1) the party who must record the lien release: the mortgagee; (2) the time frame for recording: 45 days after request and tender of the loan balance; and (3) the penalty for failure to record: for every offense, the mortgagee must pay to aggrieved parties any sum not exceeding the mortgage-money. Id. at 20. MERSCORP notes Section 351 does not contain any of the above elements. Rather, MERSCORP emphasizes, the sole consequence for failure to record is contained in Section 351 : a failure to record results only in the transfer or conveyance being rendered "void as to any subsequent bona fide purchaser." Id. at 21, citing Montgomery Cty. , 795 F.3d at 376. MERSCORP thus submits the plain language of Section 351 anticipates some parties many not record, and provides the clear consequence for failure to record.
MERSCORP also challenges the Recorders' reliance on Section 356 to support a mandatory duty to record, and distinguishes Section 356 as addressing agreements related to the rights and privileges pertaining to real property rather than mortgages or mortgage assignments. MERSCORP observes Section 356 does not mandate recording but, like Section 351, sets forth the manner of recording a conveyance, i.e. "in the office for the recording of deeds," should one wish to do so. MERSCORP argues the purpose of Section 351 is "to give subsequent purchasers constructive notice of the mortgage," see id. at 24, quoting First Citizens Nat'l Bank v. Sherwood , 583 Pa. 466, 879 A.2d 178, 181 (2005), not to provide a revenue-generating tool for county recorders. Id. at 25.
Section 356 applies to "agreements in writing relating to real property ... by the terms whereof the parties executing the same do grant, bargain, sell, or convey any rights or privileges of a permanent nature pertaining to such real property ..." 21 P.S. § 356. See, e.g. , Sabella v. Appalachian Dev. Corp. , 103 A.3d 83, 104 (Pa. Super. 2014) (subsequent purchasers were not good-faith purchasers of oil, gas and mineral rights due to prior tax sale purchaser's recording of acquisition of those rights). Furthermore, Section 356 does not encompass mortgages or mortgage transfers because "a mortgage is not of a permanent nature — it is a document encumbering a property until a specified debt is repaid."First Citizens Nat. Bank v. Sherwood , 583 Pa. 466, 879 A.2d 178, 183 (2005).
MERSCORP also observes Section 351 once coexisted with 21 P.S. § 623 (repealed in 1998), which explicitly provided that recording mortgage assignments was optional. See 21 P.S. § 623 ("All assignments of mortgages ... duly executed and acknowledged in the manner provided by law for the acknowledgement of deeds, may be recorded in the office for the recording of deeds ....) (emphasis added). MERSCORP submits the General Assembly would not have enacted Section 351 in 1925 to mandate recording of mortgage transfers when Section 623 had been in effect since 1849, and specifically provided recording of assignments was optional. Appellees' Brief at 28. Finally, MERSCORP relies on long-standing Pennsylvania jurisprudence which acknowledges recording is not necessary to effect a valid conveyance of property interests. See Id. at 33, citing Fiore v. Fiore , 405 Pa. 303, 174 A.2d 858, 859 (1961) ("The recording of the deed was not essential to its validity or the transition of the title."). Our disposition of this appeal depends upon our interpretation of Section 351. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a). The Recorders submit the use of "shall" in Section 351 creates a mandatory duty to record while MERSCORP argues a plain reading of the statute as a whole makes clear there is no mandatory requirement. Although the former interpretation easily arises from reading the words "shall be recorded" in isolation, we must "read them with reference to the context in which they appear." A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 906 (2016), quoting Roethlein v. Portnoff Law. Assoc. , 623 Pa. 1, 81 A.3d 816, 822 (2013). "[S]tatutory language must be read in context, that is, in ascertaining legislative intent, every portion of statutory language is to be read ‘together and in conjunction’ with the remaining statutory language, ‘and construed with reference to the entire statute’ as a whole." Com. v. Office of Open Records , 628 Pa. 163, 103 A.3d 1276, 1285 (2014), quoting Board of Revision of Taxes, City of Philadelphia v. City of Philadelphia , 607 Pa. 104, 4 A.3d 610, 622 (2010). See also Yates v. United States , ––– U.S. ––––, 135 S.Ct. 1074, 1081-82, 191 L.Ed.2d 64 (2015) ("Whether a statutory term is unambiguous, however, does not turn solely on dictionary definitions of its component words.... Ordinarily, a word's usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.") (internal citations omitted).
Amicus Briefs in support of MERSCORP were filed by: (1) The Federal Home Loan Mortgage Corporation and the Federal National Mortgage Association ("Freddie Mac" and "Fannie Mae"); (2) Pennsylvania Land Title Association ("PLTA"); and (3) Pennsylvania Bankers Association ("Bankers"). The Amici in support of MERSCORP all submit similar arguments which catalogue the benefits of the MERS® System, and caution a reversal of the Commonwealth Court's decision will have far-reaching consequences to the secondary market for residential mortgages, which will ultimately harm residential homeowners. See Freddie Mac and Fannie Mae's Amicus Brief at 17-23 (MERS® System lessens errors in recording offices, is fraud-prevention tool); see also PLTA's Amicus Brief at 3-5 (operation of MERS® System has significantly reduced errors in chain of title); see also Bankers' Amicus Brief at 2-3 (MERS® System brings efficiency and accuracy to increasingly complex mortgage-banking system, benefitting lenders and helping consumers). In addition, the PLTA notes that while it requires its members to record instruments for transactions they are insuring, the reason is not due to Section 351's requirements, but rather because recording is necessary to obtain bona fide purchaser/mortgage status for their insureds, thereby minimizing losses. PLTA further submits it is clear recording is not mandatory due to the myriad Pennsylvania cases that provide recording is not necessary to pass title to property. See PLTA's Amicus Brief at 7-12. The Bankers also aver under the MERS® system, the promissory note, which is personal property paid to the bearer of the note, is transferred between MERS members, while the mortgage remains assigned to MERSCORP. The Bankers assert there is not, and never has been, any requirement to publicly record a note's priority. See Bankers' Amicus Brief at 4. The Bankers further assert the plain language of Section 351 refers to recording conveyances of land, not notes, and thus the transfers that occur in the MERS® System are not required to be recorded under Section 351. Id. at 12
This contextual approach is particularly instructive when the meaning of statutory terms is ambiguous. "Notwithstanding the general rule that ‘shall’ is mandatory, we are aware that the word ‘shall’ has also been interpreted to mean ‘may’ or as being merely directory as opposed to mandatory." Gardner v. W.C.A.B. (Genesis Health Ventures) , 585 Pa. 366, 888 A.2d 758, 764-65 (2005), citing Oberneder v. Link Computer Corp. , 548 Pa. 201, 696 A.2d 148, 150 (1997), Commonwealth v. Baker , 547 Pa. 214, 690 A.2d 164, 167 (1997), see also Commonwealth ex rel. Bell v. Powell , 249 Pa. 144, 94 A. 746, 748 (1915) (interpreting "shall" as "may"); Fishkin v. Hi-Acres, Inc. , 462 Pa. 309, 341 A.2d 95, 97-98 (1975) (interpreting "shall" to be merely directory as opposed to mandatory). We acknowledge the precise meaning of the word "shall" may be ambiguous in some contexts, and under such circumstances, reference to principles of statutory construction are instructive. See, e.g. , 1 Pa.C.S. § 1921(c) ("(1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute."); see also Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd. of Supervisors , 592 Pa. 100, 923 A.2d 1099, 1104 (2007) ("When the context in which ‘shall’ is used creates ambiguity, this Court has used the factors in [ 1 Pa.C.S.] § 1921(c) to ascertain the legislature's intent.")
"Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the Legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other". Deibert v. Rhodes , 291 Pa. 550, 140 A. 515, 517 (1928) ; quoting In re McQuiston's Adoption , 238 Pa. 304, 86 A. 205, 206 (1913) (citations omitted). The apparent purpose of Section 351 mirrors the object of Pennsylvania's land recording statutes: to protect subsequent bona fide purchasers by providing notice of conveyances and any other restrictions on land and guarding against a fraudulent title. See, e.g. , Finley v. Glenn , 303 Pa. 131, 154 A. 299 (1931) (recording deed provided constructive notice of restrictions to subsequent purchasers); see also, e.g. Poth v. Anstatt , 1842 WL 4846, at *2, 4 Watts & Serg. 307, 309 (Pa. 1842) (recording conveyance acts as evidence of delivery of property as it concerns a subsequent bona fide purchaser); see also , e.g. Salter v. Reed , 15 Pa. 260, 263 (1850) ("The principle runs through the whole system of our recording acts, that the object is to give public notice in whom the title resides; so that no one may be defrauded by deceptious appearance of title."); Montgomery Cty. , 795 F.3d at 376 (purpose of Section 351 is not to create mandatory duty to record every conveyance but to provide instructions for "preserv[ing] the property holder's rights as against a subsequent bona fide purchaser").
A finding that "shall" is directory and not mandatory is further supported when considering the consequences of a different interpretation. See 1 Pa.C.S. § 1921(c)(6). Justice Donohue would hold a failure to record a conveyance is a violation of Pennsylvania law with undefined consequences. See Dissenting op. at 885–86. The express terms of Section 351, however provide the specific, limited, consequences of failure to record. Section 351 plainly provides "[e]very such deed, conveyance, contract, or other instrument of writing which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee or holder of any judgment ... without actual or constructive notice ..." 21 P.S. § 351 (emphasis added). This emphasized language indicates a conveyance is rendered void only (1) with respect to a limited class of individuals — subsequent bona fide purchaser or mortgagee or holder of any judgment; and (2) under limited circumstances — when the subsequent bona fide purchaser does not have actual or constructive notice of the transfer. We may not ignore the General Assembly's choice to limit the consequence of invalidity to specific circumstances. See 1 Pa.C.S. 1921(a) (statutes must be interpreted to give effect to every word); see also Holland v. Marcy , 584 Pa. 195, 883 A.2d 449, 455-56 (2005) ("In construing a statute, the courts must attempt to give meaning to every word in a statute as we cannot assume that the legislature intended any words to be mere surplusage."); Allegheny Cty. Sportsmen's League v. Rendell , 580 Pa. 149, 860 A.2d 10, 19 (2004) ("Because the legislature is presumed to have intended to avoid mere surplusage, every word, sentence and provision of a statute must be given effect.") (additional citations omitted).
To support her position that recording is mandatory, Justice Donohue focuses only on the words "shall be recorded" while dismissing every other word in Section 351 as merely serving to clarify the Commonwealth is a race-notice jurisdiction. See Dissenting op. at 873–74. Respectfully, this overly technical reading of the statute renders superfluous the language expressly describing the consequence for failure to record — the transfer will be adjudged fraudulent and void — in violation of our interpretive rules. Moreover, Justice Donohue finds the only consequence the General Assembly decided to include in Section 351 is somehow incomplete or deficient, and would permit the Recorders to pursue additional, unarticulated remedies. See id. at 874 n.5, 885–86. In any event, our reading of Section 351 does not discourage the recording of conveyances. Indeed, we recognize the value of recording, but we find no basis to impose consequences for failure to record beyond what the General Assembly provided.
Moreover, we have consistently held a "failure to record [documents demonstrating a conveyance is] not dispositive of whether [the documents] effectuated a valid conveyance." In re Estate of Plance , 644 Pa. 232, 175 A.3d 249, 266 (Pa. 2017) ; see also , Morris v. Ziegler , 71 Pa. 450, 453, 1872 WL 11333, at *3 (Pa. 1872) (finding transfer was ineffective as consequence of bad faith [fraud] and "not for simply not recording her deed, which in law she was not bound to do") (emphasis added); Appeal of Nice , 54 Pa. 200, 201, 1867 WL 7443 at *2 (Pa. 1867) ("it has been held that an unrecorded mortgage is not wholly inoperative. It will avail against the mortgagor himself, or his alienee or mortgagee with notice ..."). This rule undermines the position that Section 351 mandates recording. See, e.g., Matter of Pentrack's Estate, 486 Pa. 237, 405 A.2d 879, 880 (1979) ("Title to real estate may be passed by delivery of a deed without recording."); Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858, 859 (1961) ("recording of the deed was not essential to its validity or the transition of the title"). Moreover, this well-established principle is equally applicable to mortgage assignments. See U.S. Bank N.A. v. Mallory , 982 A.2d 986, 993 (Pa. Super. 2009) (recorded mortgage assignment is not prerequisite to filing complaint in mortgage foreclosure proceedings).
Justice Donohue and the Recorders rely on the statement in Appeal of Nice that "an unrecorded mortgage is a forbidden thing." Appellants' Brief at 31, 39; Dissenting op. at 885–86. However, a careful reading of the entire decision demonstrates that, although an unrecorded mortgage does not have the full force of a recorded mortgage to protect a mortgage-creditor, it nevertheless is not rendered void; instead, its priority is adversely affected. The Court specifically held "a debt secured by an unrecorded mortgage ... has no right to take precedence of the general debts, but must come in for its share as one of them." Appeal of Nice , 54 Pa. at 202.
Furthermore, had the General Assembly intended to treat every unrecorded conveyance as if it never happened, it could have stated this clearly, and without defining a limited consequence for failure to record. Cf. Clow v. Woods , 1819 WL 1895, 5 Serg. and Rawle 275 (Pa. 1819) (Opinion in Support of Reversal) ("[I]n the case of lands, where possession is not ... the legal evidence of title, provision should be made, that unless a mortgage is recorded within six months, it should be void.") Instead, the express terms of Section 351 explain it is only those deeds, conveyances and contracts where it is "the intention of the parties ... to grant, bargain, sell and convey any lands, tenements or hereditaments" to which recording applies, and with respect to those items, failure to record will result in the grant or conveyance being "adjudged fraudulent and void." 21 P.S. § 351. The words "shall be recorded" thus provide direction to parties who intend to convey land and simultaneously protect the interest created by the conveyance.
Our recent decision in Estate of Plance serves to illustrate this last point. In that case, a grantor prepared deeds to convey property to a trust, under which the grantor would be trustee and his son would be a beneficiary (the 2004 deeds). However, the grantor never recorded the 2004 deeds, despite several requests by his son and advice from counsel. 175 A.3d at 253-54. Instead, two years later, the grantor prepared new deeds to convey the property to himself and his wife and had those new deeds recorded in the counties where the property was located (the 2006 deeds). Id. In determining the conveyance effectuated by the 2006 deeds was valid — and the conveyance envisioned by the 2004 deeds was not — we focused on the grantor's decision not to record the 2004 deeds as evidence of his lack of intent to convey the subject property to the trust. Id. at 266 ("failure to record those deeds suggests that [grantor] lacked the necessary intent to convey the [property], so as to constitute an effective delivery"). Estate of Plance presents a scenario — however unusual — where there was no intent to record and thus validate a proposed conveyance.
We also find compelling the Seventh Circuit's decision in Union Cty., Ill. v. MERSCORP , Inc. , 735 F.3d 730 (7th Cir. 2013), which involved the substantively similar Illinois recording statute. Judge Posner likened the Illinois statute's provision that deeds and mortgages "shall be recorded in the county in which such real estate is situated" to a department store's notice that "[a]ll defective products must be returned to the fifth floor counter for a refund." Union Cty. , 735 F.3d at 733. Obviously, the store's notice does not mandate a return of all defective products, but if a consumer intends to return such defective product for a refund, he must return it to the fifth floor. Id. The Seventh Circuit thus employed an effective analogy to hold the Illinois statute contained an implicit "if," and dictated only that in the event a property owner wished to record a property interest, he must record it in the county where the property is located. Id.
Section 28 of the Illinois Conveyances Act provides in pertinent part as follows:
Deeds, mortgages, powers of attorney, and other instruments relating to or affecting the title to real estate in this state, shall be recorded in the county in which such real estate is situated; ... No deed, mortgage, assignment of mortgage, or other instrument relating to or affecting the title to real estate in this State may include a provision prohibiting the recording of that instrument ....
765 ILCS 5/28.
Justice Donohue rejects this analogy and presents an alternative. Dissenting op. at 873–74. However, much like her insistence that we read the words "shall be recorded" in a vacuum that disregards the other elements of Section 351, Justice Donohue's analogy ignores the other terms, conditions and consequences that would naturally exist in a car rental agreement in addition to the directive "[t]he vehicle shall be returned to the location where the rental occurred." Id. at 873. Obviously, returning a rented car is not "optional," but, more to the point, there would be additional terms in the rental agreement describing a deadline for return and the consequences for failure to comply, e.g. , the car will be reported stolen and reported to the authorities, and these terms clearly underscore that return is actually mandatory and expected. Section 351 provides the directive on how to record a transfer or conveyance of land — in the office of the recorder of deeds in the county where the lands are situate — and the limited consequence for failing to follow the directive — the conveyance can be adjudged fraudulent as to a subsequent bona fide purchaser without actual or constructive notice.
Contrary to the Recorders' preferred reading, the words "shall be recorded" in Section 351 must not be read in isolation to require every conveyance (or mortgage or mortgage assignment) be recorded, but rather viewed in context to provide a mortgagee with instructions in the event it intends to safeguard its interest by recording in the county. The process of recording a conveyance, as it has developed in this Commonwealth, is essentially a service purchasers and mortgage holders have a right to accept or decline. Although the Recorders emphasize a consequence of MERSCORP's failure to record is a loss by the Counties of attendant recording fees, there is nothing in Section 351 to support the conclusion that the purpose of recording is revenue generation. Instead, our precedent has long recognized the purpose of recording is to protect the purchaser or mortgage holder's bona fide status and "to give public notice in whom the title resides; so that no one may be defrauded by deceptious [sic] appearance of title." Salter , 15 Pa. at 263. See also First Citizens Nat. Bank v. Sherwood , 583 Pa. 466, 879 A.2d 178, 181 (2005) ("legal effect of the recording of a written agreement such as a mortgage is to give subsequent purchasers constructive notice of the mortgage"). Moreover, a failure to record results in a clear consequence — the mortgagee runs the risk of losing its status and being deprived of property rights — and a party that chooses not to record a conveyance or ownership interest pursuant to Section 351 does so at its own peril. An additional penalty for failing to record is beside the point. Our conclusion is further buttressed by the fact the General Assembly did not provide any language to enable or authorize enforcement by anyone, let alone the Recorders. Nor does the statute provide any other enforcement details, such as a deadline for recording or the penalties for failure to record in a timely fashion. We thus reject the Recorders' invitation that we read additional provisions into a statute where they were not provided by the General Assembly. See, e.g. Commonwealth v. Vasquez , 562 Pa. 120, 753 A.2d 807, 811 (2000) ("we can not [sic] read into the statute a requirement that is not present"). The Commonwealth Court thus correctly held Section 351 does not impose a mandatory duty to record and we affirm that holding. See also Montgomery Cty. , 795 F.3d at 378 (concluding Section 351 imposes no duty to record all land conveyances in county recorder's office).
Nor are we persuaded that, had the General Assembly intended Section 351 recording to be permissive rather than mandatory, it would have used the phrase "may be recorded," as it did elsewhere in Title 21. Compare 21 P.S. § 356 (agreements concerning real property "shall be recorded") with 21 P.S. §§ 383, 384, 385, 386, 390, 391, 404, 451 (land encumbrances, documentary evidence of encumbrances, and releases of encumbrances, such as deeds and patents of county commissioners and the Commonwealth, letters evidencing conveyances, releases, and lease agreements "may be recorded"). Cf. Com. v. Garland , 393 Pa. 45, 142 A.2d 14, 17 n.5 (1958) (noting "may" can mean same as "shall"); Bell v. Powell, 94 A. at 748 ("The word ‘shall’ in its ordinary sense, is imperative.... But the intent of the act controls, and when the spirit and purpose of the act require the word ‘shall’ to be construed as permissive, it will be done."), quoting 2 Sutherland on Stat. Const. (2d Ed., 1094) § 640, p. 1155.
For similar reasons, we reject the notion that the use of the term "shall" in other sections of Title 21, specifically, Sections 356, 441, 444 and 621, means recording mortgage assignments is mandatory under Section 351. See Dissenting op. at 876–79. We are not called upon in this case to opine on whether Sections 356, 441, 444 or 621 contain mandatory or directive provisions, but we acknowledge those statutes describe the procedure for effecting a conveyance of property rights and the consequences for failing to follow that procedure — i.e. the purported conveyance may be rendered invalid. See, e.g. 21 P.S. § 356 (parties "shall" record agreement regarding conveyance of property for parties to effectuate a "grant, bargain, [sale], or convey[ance of] any rights or privileges"); 21 P.S. § 441 (providing it is "duty" of persons claiming ownership of deeds or conveyances prior to March 18, 1775 to have same recorded within two years to claim subject land); see also, e.g. 21 P.S. § 444 (providing deeds and conveyances after passage of act to be recorded within 90 days, or be adjudged fraudulent); see also, e.g., 21 P.S. § 621 (requiring mortgages to be recorded within six months, or deed will not be "good or sufficient to convey or pass" interest). Nevertheless, our analysis reveals "shall" as used in Section 351 does not mandate recording, and this finding is supported rather than undermined by A. Scott Enterprises, Inc. v. City of Allentown , 636 Pa. 249, 142 A.3d 779 (2016), cited by the dissent. The sentence partially quoted by Justice Donohue actually provides in full: "The General Assembly's use of the word ‘shall’ in provisions in [the Contractor and Subcontractor Payment Act] which are otherwise functionally equivalent to the terms of the Procurement Code suggests a deliberate intention that awards of penalties and attorney fees under the Procurement Code are within the discretion of the tribunal." Id. at 788-89. Although we ultimately determined the term "may" permitted rather than required an award, we did so after careful analysis, rather than automatically holding the use of "may" can never describe a mandate. Similarly, the use of the word "shall" does not automatically mean the statute creates a mandate. See, e.g., In re Farnese , 609 Pa. 543, 17 A.3d 357, 370-71 (2011) (Election Code provision stating court "shall" award costs as it "shall" deem just does not entitle prevailing party to automatic award; language "contemplates a more nuanced, calibrated decision, perhaps difficult, but not at all a strange matter for courts of justice.").
We now turn to the second question we accepted for review — whether the Recorders have the authority to pursue claims to enforce compliance with Section 351. The Recorders argue they may bring actions to enforce statutory provisions under their purview, and the Commonwealth Court erred in holding they do not. See Appellants' Brief at 40-41, quoting Com., Pennsylvania Game Comm'n v. Com., Dept. of Envtl. Res. , 521 Pa. 121, 555 A.2d 812, 815 (1989) ("[U]nless the legislature has provided otherwise, such an agency has an implicit power to be a litigant in matters touching upon its concerns."), and citing Robinson Twp., Washington Cty. v. Com. , 623 Pa. 564, 83 A.3d 901, 920-21 (2013) (municipalities may litigate claims as part of their "responsibilities to protect the quality of life of [their] citizens"). The Recorders emphasize the General Assembly provided them with the authority to appoint a solicitor to pursue such claims. Appellants' Brief at 46, citing 16 P.S. § 4313.1 ("The recorder of deeds may appoint one person ... as his solicitor ... [who] shall conduct any litigation in connection with the recorder of deeds office when requested to do so by the recorder of deeds.").
Even assuming the Recorders correctly argue they have authority to pursue actions against individuals or entities that do not comply with mandatory duties within their statutory purview, our holding that Section 351 does not provide a mandatory duty to record renders review of this issue unnecessary. Accordingly, we affirm the order of the Commonwealth Court, which reversed the common pleas court's decision to overrule MERSCORP's preliminary objections in the nature of a demurrer. The matter is remanded for proceedings consistent with this opinion, including entry of judgment in favor of MERSCORP.
As we have stated in text, supra , Section 351 does not expressly authorize a right of action by county recorders. Moreover, our review reveals no support for a finding of implied authority, which may be recognized — at least in the context of litigation by private parties — only when: (1) the plaintiff is part of a class for whose "especial" benefit the statute was enacted; (2) there is an indication of legislative intent to create or deny a remedy; and (3) an implied cause of action is consistent with the underlying purpose of the legislative scheme. See Estate of Witthoeft v. Kiskaddon , 557 Pa. 340, 733 A.2d 623, 626 (1999), quoting Cort v. Ash , 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We discern none of these elements in the terms of Section 351, particularly since Section 351 does not expressly mandate recording. See, e.g., Commissioner v. Beam , 567 Pa. 492, 788 A.2d 357, 359, 360 (2002) (agency is invested with implied authority to effectuate express mandates provided by General Assembly).
The dissent's opposite view is unsupported by the terms of the statute. See Dissenting op. at 884–85. Beyond describing the ministerial duty of the Recorders to maintain those documents presented to them, Section 351 provides no parameters whatsoever for the implicit right of action the dissent would create. The statute presents no time frame for action, nor does it suggest what form the remedy might take. The dissent would thus provide unrestricted enforcement authority to the Recorders, whose statutory role is quite limited. See Woodward v. Bowers , 630 F.Supp. 1205, 1207 (M.D. Pa. 1986), quoting County Auditors of McKean Cty. v. Anderson , 133 Pa.Super. 475, 3 A.2d 28, 30 (1938) (additional citations omitted) ("In Pennsylvania, the Recorder of Deeds is ‘merely the custodian’ of documents placed into the record by members of the public. The Recorder neither approves of nor rejects the contents of the documents, or their validity."). As a practical matter, the imagined enforcement action would immediately be subject to successful defenses based, for example, on the absence of a prescribed deadline for recording, or identification of which party has the duty to record.
When taken to its logical extreme, the dissenting position that the Recorders are endowed with an implied authority to enforce Section 351 might eliminate a grantor's ability to effectuate — or not — a proposed conveyance of property. Relying on the Recorders' duty "to receive all deeds presented for record ... and record the same," the dissent extrapolates they must have a corresponding "authority to institute judicial proceedings as required." Dissenting op. at 885. Consider, then, the grantor's decision in Estate of Plance not to record the 2004 deeds: under the dissent's broad grant of authority, the grantor's son might theoretically deputize a recorder to act as his agent and file a mandamus action to compel recording of those deeds. This admittedly extreme example plainly demonstrates why we should not imply enforcement authority where the General Assembly did not expressly provide it in Section 351. Even a declaratory judgment action — which Justice Donohue suggests as the appropriate vehicle for the Recorders' enforcement activities (Dissenting op. at 885–86) — would improperly expand the limited duty to maintain and record presented documents that was expressly assigned to the Recorders by statute.
Jurisdiction relinquished.
Chief Justice Saylor and Justice Wecht join the opinion.
Justice Donohue files a dissenting opinion.
Justices Baer, Todd and Mundy did not participate in the consideration or decision in this case.
JUSTICE DONOHUE, Dissenting
In my view, the unambiguous language of 21 P.S. § 351 requires the conclusion that the recording of all deeds and other conveyances of real property is mandatory in Pennsylvania. The Majority believes that the use of "shall" in section 351 is ambiguous and reaches the opposite conclusion. While I do not agree that the statute is ambiguous, if the Majority is correct that it is, I am of the view that when section 351 is read in pari materia with the numerous related statutes addressing the same subject, and the history of section 351 is considered, the legislative intent to make recording mandatory is abundantly clear. Also in contrast with the Majority, I conclude that the Recorders have an implied right of action to enforce this requirement. Thus, I respectfully dissent.
Act of May 12, 1925, P.L. 613, No. 327, as amended. As explained infra, the section number provided under Title 21 of the Purdon's Statutes are not the official section numbers of the law. See infra , note 10. Nonetheless, because many of the official Pamphlet Laws referred to in this Dissenting Opinion have similar section numbers, for the ease of the reader, I will refer to the various provisions discussed herein under their Title 21 section number.
As this Court has held, mortgage assignments are conveyances of real property in Pennsylvania. Pines v. Farrell , 577 Pa. 564, 848 A.2d 94, 100-01 (2004).
As the Majority recognizes, the first issue presented for our review is a matter of statutory interpretation. The statute in question states:
All deeds, conveyances, contracts, and other instruments of writing wherein it shall be the intention of the parties executing the same to grant, bargain, sell, and convey any lands, tenements, or hereditaments situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, shall be recorded in the office for the recording of deeds in the county where such lands, tenements, and hereditaments are situate. Every such deed, conveyance, contract, or other instrument of writing which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee or holder of any judgment, duly entered in the prothonotary's office of the county in which the lands, tenements, or hereditaments are situate, without actual or constructive notice unless such deed, conveyance, contract, or instrument of writing shall be recorded, as aforesaid, before the recording of the deed or conveyance or the entry of the judgment under which such subsequent purchaser, mortgagee, or judgment creditor shall claim. Nothing contained in this act shall be construed to repeal or modify any law providing for the lien of purchase money mortgages.
Id. (emphasis added).
The Majority holds that the statute implicitly states that recording is optional – that if one should choose to record a deed, conveyance, or other pertinent writing concerning real property, then the statute indicates the location in which the documents must be recorded. See Majority Op. at 867–69. It bases this conclusion on the second sentence of the statute, finding that the only purpose of section 351 is to protect subsequent purchasers, and that recording is otherwise optional. According to the Majority, the second sentence evinces "a clear consequence" of the failure to record: "the mortgagee runs the risk of losing its status and being deprived of property rights – and a party that chooses not to record a conveyance or ownership interest pursuant to section 351 does so at its own peril." Id. at 869.In my view, the Majority's interpretation is erroneous and is in violation of our cannons of statutory construction in several respects. First, the Majority's construction of section 351 requires the Court to insert language into the statute that is not there. Indeed, the Majority acknowledges that its interpretation requires the addition of "an implicit ‘if,’ " as found by the Seventh Circuit Court of Appeals in Union Cnty., Ill. v. MERSCORP, Inc. , 735 F.3d 730 (7th Cir. 2013), which involved a similarly worded statute. The federal court read this absent language into the Illinois statute in order to conclude that the statute did not require the recording of mortgage assignments. In so holding, the federal court likened the statute providing that deeds and mortgages "shall be recorded in the county in which such real estate is situated" to a notice in a department store providing, "All defective products must be returned to the fifth floor counter for a refund." Id. at 733 (quoting, in part, 765 ILCS 5/28 ). The Seventh Circuit stated that the notice does not require a person to return defective products, but instead provides the location for the return if the consumer chooses to do so. Id. The court acknowledged that while no "if" appears in the Illinois statute, and thus its interpretation is not aligned with the "plain meaning" of the statute, it concluded that "in context it's the better meaning." Id.
I fully agree with the Majority's statement that section 351 applies only to those conveyances wherein the parties intend "to grant, bargain, sell, and convey any lands, tenements, or hereditaments situated in this Commonwealth," as that is precisely what the first sentence of section 351 states. See Majority Op. at 867–68; 21 P.S. § 351. Clearly a party must intend to effectuate the conveyance in order for the recording requirement of section 351 to apply – without an intent to convey title to the grantee, the deed is not "legally operative." Estate of Plance , 644 Pa. 232, 175 A.3d 249, 260 (2017). For this reason, our recent decision in Estate of Plance has no applicability here, as that case involved the question of whether the grantor intended to convey land to a trust through deeds that he failed to record. See id. at 266 (finding that the grantor "lacked the necessary intent to convey" land to a trust as provided in an unrecorded deed "so as to constitute effective delivery"). In light of our conclusion that the grantor did not intend to convey the land, we concluded in Estate of Plance that any question concerning the recording statutes was moot. Id. at 267.
This reasoning represents a pursuit of the "spirit" of the statute instead of appropriately relying on its plain meaning. 1 Pa.C.S. § 1921(b). It further ignores the clear mandate (at least in this jurisdiction) that courts are prohibited from adding language into the statute that the General Assembly omitted. Hanaway v. Parkesburg Grp., LP , 641 Pa. 367, 168 A.3d 146, 154 (2017) ("[I]t is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include."). There is no "if" or other discretionary or provisional language in section 351.
Moreover, the analogy announced by the Seventh Circuit, and discussed by the Majority with approval, see Majority Op. at 868–69, is inapt to the circumstances presented here because one must presume that the alternative meaning is nonsensical, i.e., it cannot be intended that all defective products must be returned. In a vacuum, it may be that intention is unlikely, but it ignores the possibility that other terms of sale indeed require the return of a defective product – for example, a leaking gas tank. Even assuming that the Seventh Circuit and the Majority are correct that this alternative reading of the department store notice is nonsensical, that conclusion is clearly not required for the first sentence of section 351. As discussed at length below, it makes perfect sense to require that land conveyances must be recorded. Instead, a more closely analogous circumstance would be a car rental agreement, stating: "The vehicle shall be returned to the location where the rental occurred." This does not mean that returning the vehicle to the rental agency is optional. Returning the vehicle is unquestionably mandatory, and the contract further provides the location to which the return must be made. Likewise, the recording of deeds and conveyances is mandatory, and must occur in the county recorder's office. 21 P.S. § 351.
The Majority reaches its conclusion under the guise of interpreting section 351 as a whole – not reading any provision thereof in isolation. See Majority Op. at 865, 868–69; see, e.g., Commonwealth v. Smith , ––– Pa. ––––, 186 A.3d 397, 402 (2018) ("we do not read words in isolation, but with reference to the context in which they appear"). The Majority's invocation of this principal of statutory construction is in error, as the second sentence of section 351 does not in any way limit, modify or qualify the language of the first sentence of the statute. Assessing section 351 as clear and unambiguous – and without the "implicit ‘if’ " that the Majority has inserted – the directive that deeds and conveyances "shall be recorded" in the office of the county recorder plainly states that these interests must be recorded. "By definition, ‘shall’ is mandatory[, and] there is no room to overlook the statute's plain language to reach a different result." Oberneder v. Link Computer Corp. , 548 Pa. 201, 696 A.2d 148, 150 (1997). See also Koken v. Reliance Ins. Co. , 586 Pa. 269, 893 A.2d 70, 81 (2006) ("the term ‘shall’ is mandatory for purposes of statutory construction when a statute is unambiguous"). Simply because the General Assembly included in section 351 a provision indicating that an unrecorded interest in property is deficient as against a subsequent purchaser for value who duly records his or her interest does not alter the original mandate that conveyances of real property must ("shall") be recorded. Rather, the second sentence announces a consequence of failing to record and communicates the well-settled law that Pennsylvania is a race-notice jurisdiction. See, e.g., Pennsylvania Salt Mfg. Co. v. Neel , 54 Pa. 9, 18 (1867) ; 21 P.S. § 622 (priority of mortgages according to date of recording). Instead of reading the first sentence of the statute in context and as a greater part of the whole provision, the Majority uses the second sentence to modify the first, which is an interpretation that is unsupported by the plain language of the statute.
Act of April 27, 1927, P.L. 440, No. 284, § 1.
Contrary to the Majority's contention, this interpretation does not fail to give effect to every word of the statute. See Majority Op. at 866–67 & n.9. As stated hereinabove, the second sentence of the statute is instructive and provides a consequence of a party's failure to record. Pursuant to the plain language of section 351, the second sentence does not impose a limitation on the first sentence, which requires conveyances of real property to be recorded. This gives effect to both provisions of section 351 and all of the words contained therein. As discussed infra, this becomes increasingly clear based on the legislative history of Pennsylvania's recording statutes, the interpretation of similar statutes on the same subject, and the consequences of the Majority's interpretation.
The Majority contends that section 351 does not require the recording of conveyances because this Court has, in certain isolated instances, interpreted "shall" to mean "may." Majority Op. at 865–66. It further posits that the second sentence only indicates the location for recordation (if the party chooses to record). Assuming, arguendo, that the Majority's interpretation of the language of section 351 is plausible, then the statute is ambiguous, as it also could be interpreted, as Appellants do, to mean that the stated interests in real property must be recorded. See Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262 (2016) ("When the parties read a statute in two different ways and the statutory language is reasonably capable of either construction, the language is ambiguous."). This requires that we go beyond the plain language of the statute to discern the General Assembly's intent. 1 Pa.C.S. § 1921(c). Beginning with its earliest laws, Pennsylvania required conveyances of land to be recorded. In 1682, William Penn and other influential Pennsylvanians compiled a series of laws from England with which they agreed. One such law was referred to in England as the Statute of Enrollments, which required "a deed of bargain and sale of a freehold interest" to be "enrolled" either in a court of record at Westminster or in other named public offices. History of the United States' system of conveyancing , 1 Patton and Palomar on Land Titles § 3 (3d ed.). The failure to do so within six months of the conveyance rendered the deed void. Id. However, the Statute of Enrollments revealed itself to be largely ineffectual, as it "was evaded by the adoption of the conveyance by lease and release." Appeal of Luch , 44 Pa. 519, 523 (1862) (citing William Blackstone, Commentaries on the Laws of England , Vol. II, 342 (1753) ).
To discern legislative intent when faced with an ambiguous statute, the factors to consider include, but are not limited to: "(1) The occasion and necessity for the statute; (2) The circumstances under which it was enacted; (3) The mischief to be remedied; (4) The object to be attained; (5) The former law, if any, including other statutes upon the same or similar subjects; (6) The consequences of a particular interpretation; (7) The contemporaneous legislative history; [and] (8) Legislative and administrative interpretations of such statute." 1 Pa.C.S. § 1921(c).
The Pennsylvania version of this law attempted to remedy the shortcomings of the English law, thus requiring that "Conveyances of Land ... shall be Enrolled or Registered in the publick Enrollment-Office of the said Province, within the space of two Moneths next after the making thereof, else to be void in Law." XX Pa. Stat. 321-22 (1682); see also Appeal of Luch , 44 Pa. at 524. The preamble of the law stated that its intention was "to prevent Frauds and vexatious Suits." XX Pa. Stat. 321-22 (1682).
In 1715, the General Assembly established "The Office for recording of Deeds," and stated that land conveyances "may be recorded in the said office." Act of May 28, 1715, 1 Sm.L. 94, Ch. 208. Although the General Assembly used the word "may," it stated its intent therein that the law was to "be of the same force and effect here, for the giving possession and seisin,[ ] and making good the title and assurance of the said lands ... as ... deeds enrolled in any of the king's courts of record at Westminster, are or shall be in the kingdom of Great Britain." Id. , 1 Sm.L. 95, Ch. 208 (footnote added). The law further provided that unless recorded within six months after the conveyance, the deed, mortgage or defeasible deed in the nature of mortgages was void. Id. , 1 Sm.L. 94, § 8 ("no deed or mortgage, or defeasible deed, in the nature of mortgages, hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life or years, unless such deed be acknowledged or proved, and recorded , within six months after the date thereof") (emphasis added).
The term "seisin" refers to "livery of seisin," which was a ceremony whereby a grantor of land symbolically delivered possession of land to the grantee. History of the United States' system of conveyancing , 1 Patton and Palomar on Land Titles § 3 (3d ed.). This included the grantor giving a twig, handful of dirt, a piece of turf, or another symbol as a token of delivery, while using "proper and technical words to show his intent to transfer the land" for whatever length of time the land was to be conveyed (e.g., fee simple, fee tail, or life estate). Id.
As discussed infra, this statute appears in 21 P.S. § 621, and remains good law.
The General Assembly amended that act in 1775 to make clear that deeds and conveyances must be recorded:
[A]ll deeds and conveyances, which, from and after the publication hereof, shall be made and executed within this province, of or concerning any lands, tenements or hereditaments, in this province, or whereby the same may be any way affected in law or equity, ... shall be recorded in the recorder's office where such lands or hereditaments are lying and being , within six months after the execution of such deeds
or conveyances; and that every such deed and conveyance, that shall at any time after the publication hereof be made and executed, and which shall not be proved and recorded as aforesaid, shall be adjudged fraudulent, and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance be recorded as aforesaid, before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim.
Act of March 18, 1775, 1 Sm.L. 422 (emphasis added). The General Assembly included a preamble to the Act of March 18, 1775, wherein it explained that its reason for amending the recording statute was to "remedy" the "different and secret ways of conveying lands ... such as are ill disposed," and which "have it in their power to commit frauds, by means whereof divers persons may be injured in their purchases and mortgages by prior and secret conveyances, and fraudulent incumbrances." Id. In other words, the General Assembly stated its intent to stop conveyances from occurring differently and in secrecy and also to protect subsequent purchasers and mortgagees from fraudulent conduct by requiring a single, transparent and public record of ownership and interests in land through the enactment of this statute. This statute served to achieve both aims by making clear that the public recording system was mandatory and by providing that unrecorded conveyances are inferior to recorded conveyances held by subsequent purchasers of the same land. See Souder v. Morrow , 33 Pa. 83, 84 (1859) (stating that the Act of 1775 requires the recording of titles to land "for the public good" and should be adhered to "because there is safety in so doing").
The following year, the Office of the Recorder of Deeds was included as a mandatory county office in Pennsylvania's original Constitution, see Pa. Const. § 34 (1776), and it remains so today. Pa. Const. art IX, § 4. In 1841, the General Assembly made recording in the Office of the Recorder of Deeds mandatory for all deeds and conveyances that preceded the passage of the Act of March 18, 1775. Act of March 26, 1841, P.L. 106, § 1, 21 P.S. § 441 ("it shall be the duty of all persons who claim any lands or tenements in this Commonwealth under or by virtue of any deeds or conveyances bearing date previously to the act of 18th March, 1775, to which this is a supplement, to have the same recorded , in the proper county, in the manner now provided by law , within two years from the date thereof") (emphasis added).
The mandatory recording provision of the Act of 1775 was modified only slightly in 1883 (and never again since) to provide that recording must occur within ninety days after the execution of the deed or conveyance, lessening the timeframe from the previously allowed six months. See Act of May 19, 1893, P.L. 108, No. 61, § 1. The preamble that was included in the Act of 1775 remained included in the amended version of the statute. The substantive language of the statute (without the preamble) appears in Title 21 of Purdon's Statutes under section 444. See 21 P.S. § 444 ; see also infra , note 10.
The Generally Assembly added section 351 to Pennsylvania's roster of recording laws in 1925. Section 351 is in pari materia – it "relate[s] to the same persons or things or to the same class of persons or things" – to several other recording statutes appearing in Title 21, including sections 356, 441, 444, and 621, as each of these statutes address the recording of deeds, conveyances and/or mortgages. See 1 Pa.C.S. § 1932. Our rules of statutory interpretation direct that we must, to the extent possible, construe these statutes as one. Id.
Act of April 24, 1931, P.L. 48, No. 40, § 1.
Beginning with section 444, it contains substantially similar language to section 351, as both provide that deeds and conveyances "shall be recorded" in the recorder's office, and both also include a provision stating that any deed or conveyance not so recorded is void as to a subsequent bona fide purchaser or mortgagee for value who has so recorded. Compare 21 P.S. § 351with id. , § 444. As stated hereinabove, when enacting section 444, the General Assembly specifically stated its intent, in the preamble to that provision, that the law was to provide for the creation of a transparent and complete system of recording in Pennsylvania. See Act of March 18, 1775, 1 Sm.L. 422, as amended , Act of May 19, 1893, P.L. 108, No. 61, § 1; 1 Pa.C.S. § 1924 (providing that although not controlling, "[t]he title and preamble of a statute may be considered in the construction thereof"). Further, although the General Assembly included the protection for subsequent bona fide purchasers in section 444, this Court has long recognized that section 444 makes mandatory the recording of deeds and conveyances. In Davey v. Ruffell , 162 Pa. 443, 29 A. 894 (1894), for example, this Court stated, in pertinent part, that "[t]he act of 1775 ... required ‘all deeds and conveyances’ to be recorded," and that the supplement to that act, the act of 1893 continued this requirement. Id. at 895 ("The very words of the act of 1775, requiring all deeds and conveyances to be recorded, are repeated without change in the act of 1893, so that the rule upon this subject continues unchanged.").
I note that while the titles of statutes may be considered in construing their meaning, the title of 21 P.S. § 351, "Failure to record," is not in fact the title of that statute. The actual title of section 351, as it appears in the Pamphlet Law, is "Recording of Deeds, Regulation." Act of May 12, 1925, P.L. 613, No. 327. As our Commonwealth Court has correctly explained, the "P.S." in these citations stands for "Purdon's Statutes," which is a publication by West Publishing Company that organizes our Pamphlet Laws. In re Appeal of Tenet HealthSystems Buck Cnty. , 880 A.2d 721, 722-23, 725 (Pa. Commw. 2005) ("Tenet ") ("Because Pennsylvania's Pamphlet Laws are organized by chronology, not subject, Purdon's has long served legal practitioners, making the laws more easily referenced."). While undoubtedly helpful, they are not the "official" or "positive law" as are the Pamphlet Laws or the Pennsylvania Consolidated Statutes (which citation includes "Pa.C.S."). Id. ; 1 Pa.C.S. § 503 (referring to the Pennsylvania Consolidated Statutes as "legal evidence of the laws contained therein"). When publishing the Pamphlet Laws, Purdon's at times adds to or omits from the official text in its unofficial publication. See Tenet , 880 A.2d at 726 (noting error in Purdon's publication of section 8(c) of P.L. 1379 of 1931).
As also recited above, section 441 states that for any deed or conveyance that predated the recording act of 1775 (current section 444 ), it was "the duty" of the person who claimed the interest in land "to have the same recorded ... in the manner now provided by law, within two years from the date thereof." 21 P.S. § 441. Similarly, section 621 provides simply that unrecorded deeds, mortgages, or defeasible deeds in the nature of a mortgage must be recorded within six months of the conveyance. Id. , § 621.
Section 356 likewise touches upon the same concern, addressing agreements in writing concerning real property. See 21 P.S. § 356. It includes, in part, identical language to section 351, providing:
All agreements in writing relating to real property situate in this Commonwealth by the terms whereof the parties
executing the same do grant, bargain, sell, or convey any rights or privileges of a permanent nature pertaining to such real property, or do release the grantee or vendee thereunder against damages which may be inflicted upon such real property at some future time, shall be acknowledged according to law by the parties thereto or proved in the manner provided by law, and shall be recorded in the office for the recording of deeds in the county or counties wherein such real property is situate .
21 P.S. § 356 (emphasis added). Like section 444, section 356 also includes a preamble, wherein the General Assembly explains that it is "an act requiring the recording of certain written agreements pertaining to real property, and prescribing the effect thereof as to subsequent purchasers, mortgagees, and judgment creditors to the parties thereto." Act of April 24, 1931, P.L. 48, No. 40 (emphasis added); see 1 Pa.C.S. § 1924.
Reading all these statutes together as one, as our General Assembly instructs that we must, it is clear that section 351 requires the recording of deeds and conveyances. 1 Pa.C.S. § 1932. Moreover, it would be absurd and unreasonable – in fact, impossible – for this Court to construe identical language in neighboring statutes that address the same subject and class of things to have different interpretations. 1 Pa.C.S. § 1922(1), (2) (stating that courts interpreting a statute must presume the General Assembly did not intend a statute to yield a result that is absurd, unreasonable or impossible to execute and that it "intends the entire statute to be effective and certain"). Sections 356, 441, 444 and 621 all make clear that the recording of deeds, mortgages and conveyances is mandatory; this same interpretation must therefore be applied to section 351.
That the General Assembly intended its directive that deeds and conveyances "shall be recorded" in the recorder's office to be mandatory becomes even clearer when we observe the numerous other provisions that address the recording of other documents wherein the General Assembly used the term "may" to connote that recording was a discretionary or optional act. As this Court recently held, where the General Assembly uses the word "may" in a statutory provision, its use of "the term ‘shall’ in a similar statute ... suggests a deliberate intention" by that body for the latter act to be mandatory. A. Scott Enterprises, Inc. v. City of Allentown , 636 Pa. 249, 142 A.3d 779, 788-89 (2016).
See, e.g. :
• Act of April 5, 1849, P.L. 344, § 2, 21 P.S. § 383 ("All deeds of county commissioners, being duly acknowledged, may be recorded in the office for recording deeds in the county where the lands lie") (emphasis added);
• Act of Dec. 14, 1854, P.L. (1855), 724, § 1, 21 P.S. § 384 (letters of attorney authorizing various specified acts related to the conveyance of real estate "may be placed of record in the recorder of deeds office ") (emphasis added);
• Act of March 14, 1846, P.L. 124, § 1, 21 P.S. § 385 ("patents granted by the Commonwealth, and all deeds of sheriffs, coroners, marshals and treasurers; and all deeds made in pursuance of a decree of any court, being duly acknowledged, may be recorded in the office for recording deeds in the county where the lands lie) (emphasis added);
• Act of April 15, 1828, P.L. 490, § 1, 21 P.S. § 386 (release of legacies and to executors "may be recorded in the office for recording deeds") (emphasis added);
• Act of April 4, 1919, P.L. 49, § 1, 21 P.S. § 390 ("deeds and patents granted by the Commonwealth of Pennsylvania may be recorded in the office for recording deeds") (emphasis added);
• Act of May 25, 1897, P.L. 83, No. 63, § 1, 21 P.S. § 391 ("releases, contracts, letters of attorney and other instruments of writing ... may be recorded in the office for recording deeds" by a married woman alone) (emphasis added);
• Act of June 2, 1959, P.L. 454, § 1, 21 P.S. § 404 ("lease or sublease ... may but need not , unless otherwise required by law, be recorded in the office for recording of deeds") (emphasis added);
• Act of Nov. 5, 1981, P.L. 328, No. 118, § 1, 21 P.S. § 451 (affidavits that may affect title to real property in Pennsylvania "may be recorded ... in the Office of the Recorder of Deeds or Commissioner of Records") (emphasis added).
The Majority is correct that this is a partial quotation from of A. Scott Enterprises . This is because the remaining portion of the quote, which the Majority includes in its decision, is misleading without providing greater context. See Majority Op. at 869–70 n.13. The statute at issue in A. Scott Enterprises , section 3935 of the Procurement Code, is a prompt payment statute for government projects and provides that a court "may award" certain amounts in addition to damages. 62 Pa.C.S. § 3935 (emphasis added). The appellant sought to have the word "may" interpreted as mandatory, not discretionary. A. Scott Enterprises, Inc. , 142 A.3d at 787. This Court disagreed, concluding that the use of the word "may" indicated that the additional award was discretionary with the court. In so holding, we relied in part on "the fact that the General Assembly used the term ‘shall’ in a similar statute," the Contractor and Subcontractor Payment Act (CASPA). Id. at 788. "The General Assembly's use of the word ‘shall’ in provisions in CASPA which are otherwise functionally equivalent to the terms of the Procurement Code suggests a deliberate intention that awards of penalties and attorney fees under the Procurement Code are within the discretion of the tribunal." Id. Further, like the statutory scheme in the case at bar, we further observed in A. Scott Enterprises that "a different payment provision within the Procurement Code itself employs mandatory language [ (‘shall’) ] respecting a penalty for late payments," and the Court found that this "corroborat[ed that] the General Assembly meant Section 3935 to be permissive." Id. at 788-89 (citing 62 Pa.C.S. § 3932(c) ). Thus, the Majority is incorrect that A. Scott Enterprises supports (rather than undermines) its decision to ignore the General Assembly's use of "shall" and "may" in surrounding statutes on the same subject, and to instead conclude that the General Assembly's use of the word "shall" in section 351 does not mandate recording. See Majority Op. at 869–70 n.13.
Appellees point to former 21 P.S. § 623 (now repealed), which previously stated that "assignments of mortgages and letters of attorney authorizing the satisfaction of mortgages duly executed and acknowledged, in the manner provided by law for the acknowledgment of deeds, may be recorded in the office for recording deeds[.]" Act of April 9, 1849, P.L. 524, No. 354, § 14 (emphasis added), repealed by Act of Jan. 29, 1998, P.L. 45, No. 12, § 1. Appellees take this as proof that the recording of mortgage assignments, which is the act specifically at issue in this case, is not required, as section 623 preceded section 351 by seventy-six years and then "coexisted" with it for seventy-three years. Appellees' Brief at 28. Thus, according to Appellees, section 351 cannot be interpreted to require the recording of mortgage assignments today. Id.
I disagree, and find support for Appellants' argument that the enactment of section 623 was in response to this Court's holding in 1883 that a mortgage assignment was not included under the provisions of the Acts of 1717 and 1775. Specifically, in Craft v. Webster , 4 Rawle 242 (Pa. 1833), this Court held that the recording statutes addressed only mortgages, deeds and conveyances, all of which the Court found were required to be recorded in Pennsylvania, but that the statutes did not speak to (and thus, did not include) assignments of mortgages. Id. at 246. Soon thereafter, the General Assembly enacted section 623, providing that it was permissible to record assignments of mortgages. 21 P.S. § 623 (repealed). In Appeal of Pepper , 77 Pa. 373 (Pa. 1875), we recounted this history, explaining:
Prior to the enactment of the 14th sect. of the Act of 9th April 1849, supra, the decisions were conflicting as to whether the assignment of a mortgage was within the recording acts. In Craft v. Webster , 4 Rawle 242, and in Mott v. Clark , 9 Barr. 399, it was held not to be; but in Philips v. Bank of Lewistown , 6 Harris 394, it was held to be within the recording Act of 28th May 1715. The right to record this assignment was set at rest by the Act of 1849.
Appellees rely on Appeal of Pepper for the proposition that the recording has always been interpreted in Pennsylvania as being optional, not mandatory. Appellees' Brief at 15. Although in Appeal of Pepper this Court stated that from the language of the statutes it reviewed, "it appear[ed that] the recording of written instruments has not generally been mandatory," the statutes the Court relied upon for that proposition all used permissive language – "may be recorded" and "entitled to be recorded." See Appeal of Pepper , 77 Pa. at 375-77. The Court did not consider any statutes that used the phrase "shall be recorded," such as is the case in section 351 (as well as sections 356, 441, 444 and 621 ). Thus, this statement in Appeal of Pepper is of no value in assessing the question presently pending before the Court.
Further, in repealing section 623, the General Assembly made a determination that the law was "supplemented or superseded by other acts or otherwise obsolete." H.B. 1763, Printer's No. 2226, Reg. Sess. (Pa. 1997). The law is clear that mortgage assignments are conveyances, and as discussed hereinabove, there are several statutes that specifically and expressly mandate the recording of conveyances. See Pines v. Farrell , 577 Pa. 564, 848 A.2d 94, 100-01 (2004) ("Given our conclusion that a mortgage conditionally conveys the subject property, it logically follows that an assignment of the mortgagee's rights likewise effects a conditional transfer of the subject property to the assignee."); Philips v. Bank of Lewistown , 18 Pa. 394, 402 (1852) ("A mortgage is in form a conveyance of the land, and an assignment of it is another formal conveyance of the same land.") (emphasis omitted).
Moreover, if, as the Majority concludes, recording mortgage assignments is optional, then recording deeds is optional, as both are covered under section 351. In addition to being in direct opposition to the stated intent of our General Assembly over the 350-year history of our recording statutes, the consequences of this interpretation are far reaching and potentially catastrophic. Recording of deeds is critical to preserve the chain of title for a property, gaps in which can negatively impact, for example, the marketability of the title for that property and adjacent properties; the ability of a subsequent owner to obtain a mortgage and title insurance; the determination of the precise boundary lines of the property; and tax sales of the property. See David E. Woolley & Lisa D. Herzog, MERS: The Unreported Effects of Lost Chain of Title on Real Property Owners , 8 Hastings Bus. L.J. 365, 389 & 396 (Summer 2012) ; Luffborough v. Parker , 16 Serg. & Rawle 351 (Pa. 1827) (citing Birch v. Fisher , 13 Serg. & Rawle 208 (Pa. 1825), for the proposition that "[a] complete chain of title must be made out by the purchaser under a sale for taxes"). Recorded deeds are also used, inter alia, to discern the owner of a property for purposes of identifying a defendant when an accident occurs on real property, see, e.g., Minner v. City of Pittsburgh , 363 Pa. 199, 69 A.2d 384, 386 (1949), and to develop the tax rolls, see, e.g., 72 P.S. § 5860.102 (defining, in pertinent part, "owner" and "delinquent property owner," for tax purposes, as the person named "as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording"). Looking years into the future, if a property changed hands numerous times but the deed was recorded only some of the times, the records kept in the Office of the Recorder of Deeds would be of no value, as they would be wholly unreliable – again, in direct opposition to the intention of Pennsylvania's founding fathers and the General Assembly in creating these statutes.
Act of June 19, 2018, P.L. 239, No. 38, as amended.
Furthermore, a property owner should be able to rely on public records to determine, at any given time, who simultaneously owns an interest in his or her property. Mortgagors should not be forced to embark on a veritable wild goose chase to discern who holds their mortgage and note, is entitled to payments, and/or is entitled to foreclose. Both the Majority and the Commonwealth Court cite to the three-judge panel opinion of the Superior Court in U.S. Bank N.A. v. Mallory , 982 A.2d 986 (Pa. Super. 2009), for the proposition that mortgage assignments need not be recorded. See Majority Op. at 866–68; MERSCORP, Inc. v. Delaware Cnty. , 160 A.3d 961, 966 (Pa. Commw. 2017). In Mallory , the Superior Court held that a mortgage assignment does not need to be recorded and that a plaintiff's unsubstantiated claim that it is the "legal owner" of a mortgage is sufficient for a foreclosure action to proceed. Mallory , 982 A.2d at 993-94.
The Majority's citation to Mallory constitutes the first time this Court has ever done so. This Court was not asked to review Mallory and no decision of this Court has ever discussed, let alone blessed, the holding in Mallory . In my view, and for the reasons discussed here (among others), Mallory was decided incorrectly and the decision presents a perfect example of why mortgage assignments must be recorded. The facts of Mallory are particularly egregious, as the plaintiff in foreclosure had not even been assigned the mortgage when suit was filed. At the time US Bank filed the complaint in foreclosure, it was only "in the process of formalizing the assignment" from MERS. Id. at 989. Thus, at the time of foreclosure, the homeowner had received no notice that the bank seeking to foreclose had any legal interest whatsoever in her loan or in the title to her property, could not rely on the public recording system to make such a determination, and the bank was allowed to proceed in foreclosure based on nothing more than a bald statement that it was going to be the owner of the mortgage at some unknown point in the future.
The Majority finds further support for its decision in cases from this Court in which we held that an unrecorded deed is nonetheless valid, believing that this "enduring acknowledgment" refutes any claim that recording is mandatory. See Majority Op. at 866–67 (citing Matter of Pentrack's Estate , 486 Pa. 237, 405 A.2d 879, 880 (1979) ; Fiore v. Fiore , 405 Pa. 303, 174 A.2d 858, 859 (1961) ). The cases relied upon by the Majority, however, never mention, let alone discuss, Pennsylvania's recording statutes. Although an unrecorded deed or mortgage may be valid as a matter of contract law, the law is clear that unless these interests are recorded within six months, the deed cannot be sold, inherited or gifted to another. 21 P.S. § 621. In other words, an unrecorded deed is unmarketable. See Mower v. Mower , 367 Pa. 325, 80 A.2d 856, 858 (1951) (recognizing that the failure to record a deed "render[s] a valid title unmarketable"); Black's Law Dictionary 1713 (10th ed. 2014) (defining "marketable title" as, inter alia, "a title that enables a purchaser to hold property in peace during the period of ownership and to have it accepted by a later purchaser who employs the same standards of acceptability").
This concept is best illustrated in our early decision in Levinz v. Will , 1 U.S. 430, 1 Dall. 430, 1 L.Ed. 209 (Pa. 1789), wherein this Court was asked to decide whether an unrecorded mortgage was valid and enforceable against the mortgagor. This Court found that the failure to record did not render the mortgage invalid as to the mortgagor:
The original intent, then, of the makers of the law immediately under consideration, and their principal reason, seems to have been to prevent honest purchasors, or mortgages, of real estates, from being deceived by prior secret conveyances, or incumberances; and, therefore, they have directed that such conveyances, or incumberances, shall be recorded in six months, or that they should not be sufficient to pass any estate. Thus, by having recourse to the offices of the Recorders, any one may ascertain the previous liens upon the property, which he wishes to purchase, or to receive as a pledge; and this amounts to a constructive notice to all men, and supercedes the necessity of express personal notice. But the Legislature did not mean, nor have they, in fact, enacted, that express personal notice, where given, should have no effect: Neither could they entertain an idea of defeating fair and honest bargains, which do not injure other persons: And, if this unrecorded deed can be obligatory in no other manner, it may certainly operate as a covenant to stand seized to uses.
Id. at 435. While a person may hold a valid interest in unrecorded property, this does not change the longstanding requirement that interests in land must be recorded.
The purpose of the recording system is "to furnish a permanent record of all titles and muniments of real estate," McCaraher v. Commonwealth , 5 Watts & Serg. 21 (Pa. 1842), and to prevent fraud by providing public notice as to who holds title to real estate. Salter v. Reed , 15 Pa. 260, 263 (1850). It is not, as the Majority states, to provide "a service [that] purchasers and mortgage holders have a right to accept or decline." Majority Op. at 869 (emphasis omitted). The Majority's conclusion is antithetical to the reason for having a public system of recording; it would render the recording system completely ineffectual and useless, as it would be incomplete and fail to "give public notice in whom the title resides" or work to prevent fraud "by deceptious appearance of title." Salter , 15 Pa. at 263 ; McCaraher , 5 Watts & Serg. 21. Furthermore, Pennsylvania has created an elaborate and expensive statutory scheme, which includes a system of indexing properties to ensure the correctness of land maps and ownership. See Act of Jan. 15, 1988, P.L. 1, No. 1, §§ 1-7, 21 P.S. §§ 331 - 337 (the Uniform Parcel Identifier Law); Act of July 5, 2012, P.L. 935, No. 100, §§ 1-9, 21 P.S. §§ 483.1 - 483.9 (the Uniform Real Property Electronic Recording Act). The statutory scheme included under Title 21 and the constitutional requirement of a recorder of deeds for every county would be nonsensical and a waste of resources if recording is a purely voluntary act.
The Majority erroneously imports into my interpretation of section 351 a conclusion that "a failure to record a conveyance means it never occurred." Majority Op. at 866 (stating that the General Assembly did not intend for an unrecorded conveyance to be treated "as if it never happened"). As my discussion above makes clear, this is an inaccurate restatement of my analysis. An unrecorded deed or mortgage does not simply disappear or cease to exist and is clearly enforceable under contract principles or against third parties with actual notice of the conveyance. See, e.g, Levinz , 1 U.S. at 435 ; Appeal of Nice , 54 Pa. 200, 201 (1867) (the law requires a mortgage to be recorded within six months, but an unrecorded mortgage continues to be operative against the mortgagor). By setting up this false premise, the Majority attempts to paint an apocalyptic outcome. In actuality, however, the Majority fails to recognize the broader point entirely: by creating a recording system for conveyances of land, the General Assembly intended a public, transparent record of ownership of real property. By finding that the recording of conveyances is not mandatory, the Majority has not only entirely ignored the rest of the statutory scheme, but has upended this system and rendered the basis for it a nullity.
Proponents of MERS view the recording laws as archaic, involving a "process ... derived from seventeenth century real property law [that] is not at all suited to late twentieth century mortgage finance transactions." Phyllis K. Slesinger & Daniel Mclaughlin, Mortgage Electronic Registration System , 31 Idaho L. Rev. 805, 808 (1995). Its opponents observe that MERS does not render obsolete "[t]he policy justifications behind recording statutes," which "are as germane today as they were hundreds of years ago, when the first American colonies began adopting the statutes. Christopher L. Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory , 53 Wm. & Mary L. Rev. 111, 125 (October 2011). Although amici for Appellees contend that MERS is itself a recording system "that increases transparency, efficiency, and accuracy," Appellees vehemently deny that MERS is a recording system at all, let alone one that promotes transparency. Compare Freddie Mac and Fannie Mae's Amicus Brief at 11-12, with Appellees' Brief at 26 n.8. In fact, Appellees concede that MERS does not satisfy what it views as the goal of recording – "to provide constructive notice to the world of an interest (or transfer in interest) in real property." Appellees' Brief at 26 n.8.
Whether considered a registration system, a recording system, or something else altogether, MERS is the only entity with a database of information concerning the chain of title for the properties in which its members hold an interest. This means that if MERS were to fail, the chain of title for properties in which its members had interests would be forever lost (assuming it was complete in the first place). Homeowners would not know who was entitled to receive payments on the loans, and foreclosures would occur in a manner reminiscent of the Wild West – whichever financial institution can get its hands on the mortgage and promissory note first gets to keep them.
As history teaches, private ventures can fail financially or otherwise collapse, no matter how big or well established. See Robert Pickel, Ten Years After: Identifying the Deadliest Sin of the Financial Crisis , Banking & Fin. Services Pol'y Rep. 1, 9 (2017). The fact that MERS registers and keeps track of mortgage assignments in its system shows that it agrees that there must be some registration and/or recordation of mortgages and assignments. As between an unregulated private institution that operates out of public view and without transparency and a constitutionally-mandated government office that keeps this information as a matter of public record for all to see, the General Assembly's choice of the latter should be enthusiastically reaffirmed. The second issue upon which we granted allowance of appeal was whether the Recorders of Deeds "possess standing or a right of action to pursue claims against" Appellees. Merscorp, Inc. v. Delaware Cty., Recorder of Deeds By & Through Judge , 643 Pa. 644, 174 A.3d 549 (2017) (per curiam). A right of action can be either express or implied. See Commonwealth, Dept. of Environmental Resources v. Butler Cnty. Mushroom Farm , 499 Pa. 509, 454 A.2d 1, 4 (1982). As the Majority observes, " section 351 does not expressly authorize a right of action by county recorders," Majority Op. at 870 n.14, nor do the Recorders claim that an express authorization exists. Instead, the question is whether the Recorders have an implied right of action to challenge Appellees' failure to adhere to the mandates of section 351.
I again stress that the Majority's interpretation of section 351 affects not only the assignment of mortgages but, at the ultimate level, deeds conveying real property. As tenuous as the MERS registration system is, it is at least some attempt at order in chronicling these ownership interests. There is no such private register of deeds. If the General Assembly chooses to bless the MERS business model and to exempt assignment of mortgages from mandatory recording, it is free to do so as an expression of public policy. But it is not the role of this Court to disregard centuries of precedent and an entire statutory scheme in order to adjust the law to the preference of private actors.
The concepts of standing and right of action have been described as "allied but distinct." Commonwealth v. Beam , 567 Pa. 492, 788 A.2d 357, 362 (2002). As we have previously held, standing is a requirement that a party is sufficiently interested in a matter; "a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ and he has no right to obtain a judicial resolution of his challenge." In re T.J. , 559 Pa. 118, 739 A.2d 478, 481 (1999). Right of action, on the other hand, is more general, and relates to the existence of a cause of action for which the plaintiff has a civil remedy. 1A C.J.S. Actions § 54. In their responsive brief (and at oral argument), Appellees state that they are not challenging the Recorders' standing in this matter. See Appellees' Brief at 48-49. I therefore focus exclusively on the question of the Recorders' right of action.
Relying on the test for a private right of action announced in Estate of Witthoeft v. Kiskaddon , 557 Pa. 340, 733 A.2d 623 (1999), the Majority finds that "since section 351 does not expressly mandate recording," the Recorders cannot establish an implied right of action under this test. Majority Op. at 870 n.14. In addition to my disagreement with the Majority's interpretation of section 351, its reliance on Estate of Witthoeft is misplaced, as the case at bar does not involve a "private right of action." A "private right of action" pertains to "[a]n individual's right to sue in a personal capacity to enforce a legal claim." Black's Law Dictionary 1520 (10th ed. 2014) (emphasis added). This matter involves an action by government entities in their official capacity . In such cases, we have observed that an agency of the government "is invested with the implied authority necessary to the effectuation of its express mandates." Beam , 788 A.2d at 359-60 (citing Butler County Mushroom Farm, 454 A.2d at 4 ; Pa. Human Relations Comm'n v. St. Joe Minerals, 476 Pa. 302, 382 A.2d 731, 736 (1978) ; Day v. Public Service Comm'n (Yellow Cab Co. ), 312 Pa. 381, 167 A. 565, 566 (1933) ; 2 Am.Jur.2d Administrative Law § 62 (1994) ). See also Seth Davis, Implied Public Rights of Action , 114 Colum. L. Rev. 1, 9 (2014) (stating that an implied public right of action gives a government agency or subdivision the right to sue to enforce a statutory provision).
In Estate of Witthoeft , this Court adopted a three-prong test for determining whether there is an implied private right of action announced by the United States Supreme Court: (1) "Is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a right in favor of the plaintiff?" (2) "Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?" (3) "Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" Estate of Witthoeft , 733 A.2d at 626 (quoting Cort v. Ash , 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) ).
In Beam , the Department of Transportation sought an injunction against Beam's establishment of an unlicensed airport on his private property. Beam , 788 A.2d at 362. Beam argued that the Department of Transportation did not have authority to commence a civil action against him, but this Court disagreed. In considering the Department's authority, we borrowed language from case law addressing standing, stating:
[W]hen the legislature statutorily invests an agency with certain functions, duties and responsibilities, the agency has a legislatively conferred interest in such matters. From this it must follow that, unless the legislature has provided otherwise, such an agency has an implicit power to be a litigant in matters touching upon its concerns. In such circumstances the legislature has implicitly ordained that such an agency is a proper party litigant, i.e., that it has "standing."
Id. at 361 (quoting Pa. Game Comm'n v. Dep't of Envtl. Res., 521 Pa. 121, 555 A.2d 812, 815 (1989) ). This Court considered the Aviation Code's statutory requirements authorizing the Department of Transportation to establish fees for aviation services including for private airport licenses. Id. We further recognized that the Department's authority must be construed liberally because it implicates public safety and welfare. Id. On these bases, the Court determined that the Aviation Code evidenced an intention to confer upon the Department of Transportation the ability to secure compliance with the statutory requirements. Id.
Returning to the case at bar, the position of recorder of deeds is mandated by the Pennsylvania Constitution. Pa. Const. art. IX, § 4 ("County officers shall consist of ... recorders of deeds ...."). Recorders are elected officials who serve four-year terms. Id. The law requires them "to receive all deeds presented for record ... and record the same." 21 P.S. § 325.1. It is the duty of the recorder of deeds to maintain accurate, comprehensive and permanent land records throughout the Commonwealth. McCaraher , 5 Watts & Serg. 21. This duty includes the recording of mortgages and mortgage assignments. See Long's Appeal , 77 Pa. 151, 153 (1874) (stating that a mortgage "is required to be recorded as other deeds are"); Appeal of Nice , 54 Pa. at 201 (referring to an unrecorded mortgage as a "forbidden thing"); In re Luch's Appeal , 44 Pa. at 523 ("all mortgages are required to be [recorded]").
Act of July 18, 1941, P.L. 421, No. 169, § 1.
Furthermore, as previously discussed at length, this Court has recognized that recording is intended to protect the public welfare. See Salter , 15 Pa. at 263 ; see also McCaraher , 5 Watts & Serg. 21 (describing the Office of Recorder of Deeds as the "pivot on which all our titles to real estate turn" which, by design, is to "enable all persons to obtain knowledge of the state of titles to real estate by deeds and conveyances, and also of charges and encumbrances existing on them by way of mortgage"). Thus, as in Beam , I conclude that the authority to institute judicial proceedings as required to execute its statutory responsibility is necessarily implied in the authority conferred upon the Recorders by the General Assembly.
Recorders' request for a declaratory judgment with injunctive relief is, in my view (and as in Beam ), an appropriate vehicle for the execution of their statutory responsibility to maintain a public record of conveyances of real property. See 42 Pa.C.S. § 7532 (defining the scope of declaratory relief); see also Beam , 788 A.2d at 362 (finding that the Department's "pursuit of injunctive relief in a judicial forum represents a restrained and supervised form of administrative action"). In deciding the Recorders' declaratory judgment action, I would declare that the failure to record mortgage assignments is a violation of Pennsylvania law. See Complaints, Prayer for Relief, ¶ (e). I express no view as to the nature of the injunctive relief available, as that question is not presently before this Court and should be addressed in further proceedings on remand.
Appellants also brought claims sounding in quiet title, unjust enrichment, civil conspiracy and aiding and abetting, and sought monetary damages based upon Appellees' failure to record mortgage assignments. See generally Chester County Complaint, 10/10/2014; Bucks County Complaint, 10/24/2014; Berks County Complaint, 10/15/2015; Delaware County Amended Complaint, 10/30/2015 (hereinafter referred to collectively as "Complaints"). As discussed hereinabove, an implied public right of action gives a government entity, acting in an official capacity, the right to seek judicial relief to obtain compliance with a statutory or constitutional provision. See Beam , 788 A.2d at 359-60 ; Davis, 114 Colum. L. Rev. at 9. As I conclude that section 351 requires recording, the right of action implied under section 351 is to enforce this provision so that county recorders can fulfill their duties of maintaining a complete public record of land conveyances. See, cf., Pennsylvania Human Relations Comm'n , 382 A.2d at 736 (providing that only the powers necessarily implied may be exercised). That upon the filing of the mortgage assignments, the Recorders are entitled to collect the statutorily-mandated fees is irrelevant to this analysis.
Section 7532 provides:
Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.
42 Pa.C.S. § 7532.
For the foregoing reasons, I would reverse the decision of the Commonwealth Court and remand the case for further proceedings. I therefore dissent from the Majority's contrary conclusion.