IN THE COMMONWEALTH COURT OF PENNSYLVANIA

MERSCORP, Inc. n/k/a MERSCORP : Holdings, Inc.; Mortgage Electronic : No. 523 C.D. 2016 Registration Systems, Inc.; : Argued: October 19, 2016
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.; Sov ereign 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., :

: Appellants :

:

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 Hi s 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, P ennsylvania :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

H ONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE WOJCIK FILED: May 4, 2017

In this interlocutory appeal, involving coordinated actions,

MERSCORP , Inc., n/k/a MERSCORP Holdings, Inc., Mortgage Electronic

Registration Systems, Inc., and the additi onal above

- named appellants,

(collectively, Appellants ), appeal from the February 12, 2016 order of the Court of

Common Pleas of Delaware County denying their preliminary objections to

complaints filed by the Recorders of Deeds for Berks, Bucks, Chester, a nd

Delaware Counties , and the Counties of Berks, Bucks, and Chester, Pennsylvania

(collectively, the Recorders)

. We reverse.

Petitioner MERSCORP , Inc., n/k/a MERSCORP Holdings, Inc.

(MERSCORP) owns and operates the MERS® System, a national electronic

registry system for mortgage loans secured by residential real estate. Petitioner2

Mortgage Electronic Registration Systems, Inc. (MERS)

, MERSCORP’s wholly

owned subsidiary, serves as a mortgagee of record for mortgage loans registere d in

the MERS® System

. Under the MERS® System, when the promissory note

associated with a loan is transferred from one MERS® System member to another,

MERS remains as the mortgagee and title holder of the mortgage. The remaining

a ppellants are financial institutions alleged to have improperly used and/ or

otherwise benefited from the MERS® System to circumvent statutory recording

and fee requirements.

This appeal ar os e from four lawsuits filed by the Recorders

. 1 In

each action, t he Recorders claim that Section 1 of the Act of May 12, 1925, P.L.

613, as amended

, 21 P

. S. §351 (Section 351) , requires Appellants ’ transfers of

interests in promissory notes to be recorded as mortgage assignments in county

land records. The Recorders contend that Appellants violated Section 351 by not

recording documents and paying recording fees when a promissory note associated

with a mortgage loan was transferred from one MERS® System member to

another. The Recorders assert six different claims: a st atutory cla im for violation

of Section 351; aiding and abetting a violation of Section 351; civil conspiracy to

violate Section 351; quiet title; unjust enrichment; and a request for declaratory

and injunctive relief to require the recording of mortgage assignments. Each of

these claims is based on two legal assumptions: first, that Section 351 imposes a

1 The Recorder for Delaware County filed a complaint in the Court of Common Pleas of

Delaware County (trial court) in October 2013 and an amended complaint in October 2015. The

Recorders for Chester and Bucks Counties filed complaints in the Courts of Comm on Pleas of

Chester and Bucks County in October 2014, and the Recorder for Berks County filed an action in

Berks County Court of Common Pleas in October 2015. The latter three lawsuits were

coordinated with the Delaware County action in April and October 2015.3

duty to record mortgage assignments; and second, that the Recorders have a

statutory right to enforce Section 351.

In its entirety, Section 351 ( Failure to recor d conveyance) states as

follows :

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 heredi taments 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

re corded, 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.

21 P.S. §351

.

V irtually identical claims were asserted by the Montgomery County

Recorder of Deeds in Montgomery County v

. MERSCORP , 904 F. Supp. 2d 436

(E.D. Pa. 2012); the district court declared that Appellants are obligated to create

and re c ord written documents memorializing the tran sfer of the promissory notes.

T he parties agreed to stay these actions while an appeal was pending , and4

subsequently, t he Court of Appeals reversed and hel d that Section 351 does not

create a duty to record all land conveyances. Montgomery County, Pennsylvania,

Recorder of Deeds v. MERSCORP, Inc. , 795 F.3d 372 (3 rd Cir. 2015) ( Montgomery

County )

.
In doing so, the court determined that the statute’s langu age “shall

be recorded, ” when read in context, “indicates that not every conveyance must be

recorded, but only that conveyances must be recorded in the county where the

property is situated in order to preserve the property holder’s rights as against a

sub sequent bona fide purchaser.” Id. at 376. In a footnote, the court added that

“the Recorders’ lack of an express or implied right of action under Section 351

would provide an independent ground for judgment in favor of MERS.” 795 F.3d

at 379 n.8.

Following the decision i n Montgomery County

, Appellants filed

joint preliminary objections, Reproduced Record ( R.R. ) at 351a

- 57a, which t he

trial court denied

. Appellants then sought an interlocutory appeal

, asserting that

the trial court’s ruling conflic ts with the Third Circuit ’s decision

. The trial court

refused to certify its order under 42 Pa.C.S. §702 (b) (related to interlocutory

appeals by permission)

. T his Court granted Appellants ’ petition for review, filed

pursuant to the note to Pa. R.A.P. 131 1, to consider t wo issues: (1) w hether Section

35 1 requires the recording of all mortgages and mortgage assignments ; and (2)

w hether the General Assembly conferred on the Recorders a right of action to

enforce Section 351.5 Before this Court

, 2 Appellants argue that the trial court erred in

overruling their preliminary objections ; Appellants assert that the Recorders’

complaints must be dismissed because Section 351 does not mandate the recording

of every mortgage and mortgage assignment. Instead, Section 351 provides a

mechanism for the holder of a mortgage lien to establish priority of its lien by

recording the mortgage in the county in which the property is located.

Wh ile the Recorders argue that the words “shall be recorded” are

mandatory, Appellan ts contend that the Recorders’ interpretation of the statute fails

to consider Section 351 in its entirety. Appellants argue that the text of Section

351, taken as a whole, simply advises property owners of the steps they must take

to safeguard their inte rests. Notably, Section 351 does not specify who must

record the conveyance of real property : the assignor, the assignee, or some other

person or entity ; nor does it state when the reco r ding must take place. Further,

Section 351 does not indicate how or by whom such a duty would be enforceable

,

or that a failure to record constitutes a violation of the statute. I t does

, however, set

forth one consequence of a failure to record , which is that e very conveyance no t

recorded “ shall be adjudged fraudulent and void as to any subsequent bona fide

purchaser or mortgagee or holder of any judgment

. . . unless such

. . . conveyance

. . . shall be recorded, as aforesaid, before the recording of the [subsequent

purchaser’s] deed or conveyance . . . .” 21 P.S. §351.

Accordingly, w e agree with the court’s conclusion in Montgomery

County that, “ Section 351 does not issue a blanket command that all conveyances

2 Because the denial of the preliminary objections raises questions of law, our standard of

review is de novo and our scope of review is plenary. Seeton v. Pennsylvania Game

Commission , 937 A.2d 1028, 1032 n.4 (Pa. 2007).6

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.” 795 F.3d at 377. While the plain language of Section 351 “informs

property owners of what steps they must take in order to safeguard their interests

[it] does not in any way state or i mply that failure to record constitutes [an

enforceable] violation of the statute . . . .” 795 F.3d at 377

- 78.

Our conclusion is grounded in the clear language of the statute, and it

also is supported by a body of case law interpreting Pennsylvania recording laws

that specifically address es the purpose of th os e statutes and the effect of a failure to

record an interest in land.

In accord with the statutory language

, Pennsylvania courts have

consistently interpreted Section 351, as well as the s imilar language contained in

Section 1 of the Act of April 24, 1931, P.L. 48, 21 P.S. § 356

, 3 and Section 1 of the

Act of March 18, 1775, Sm.L. 422 , 21 P.S. §444, 4 as intend ing to protect

3 It states:

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 relea se 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 offi ce for the recording of deeds in the county or counties wherein such real property is situate.

21 P.S. §356.

4 It states:

(Footnote continued on next page...)7

subsequent mortgagees and purchasers

. A dditionally, cases referencin g Section

351’s recording requirement invariably relate to the validity of the deed or

instrument vis

- à

- vis a nother, such as a subsequent purchaser, bankruptcy trustee,

judgment credito r or an opposing party in a zoning dispute or tax sale ; t he issue of

recording under Section 351 most commonly arises when a party seeks to enforce

rights that are set forth in an unrecorded document. See, e.g., Walsh v. East

Pikeland Township , 829 A.2d 1219 (Pa. Cmwlth. 2003) (unrecorded deed

restriction could not serve as the basis to deny a subsequent purchaser’s sketch

(continued...)

All deeds and conveyances which, from and after the passage of

this act, shall be made and executed within this commonwealth of

or concerning any lands, tenements or hereditaments in this

commonwealth, or whereby the title to the same may be in any

way affected in law or equity, shall be acknowledged by the

grantor . . . or proved by one or more of the subscribing witnesses

thereto

. . . and shall be recorded in the office for the recording of

deeds where such lands, tenements or hereditaments are lying and

being, within ninety days after the execution of such deeds or

conveyance, and every such deed and conveyance that shall at any

t ime after the passage of this act be made and executed in this

commonwealth, and which shall not be proved and recorded as

aforesaid, shall be adjudged fraudulent and void against any

subsequent purchaser or mortgagee for a valid consideration, or

any cred itor of the grantor or bargainor in said deed of conveyance,

and all deeds or conveyances that may have been made and

executed prior to the passage of this act, having been duly proved

and acknowledged

. . . which shall not be recorded in the office for

re cording of deeds in the county where said lands and tenements

and hereditaments are lying and being, within ninety days after the

date of the passage of this act, shall be adjudged fraudulent and

void as to any subsequent purchaser for a valid consideratio n, or mortgagee, or creditor of the grantor, or bargainor therein.

21 P.S. §444.8

plan for subdivision of the property ); Poffenberger v. Goldstein , 776 A.2d 1037,

1042 (Pa. Cmwlth. 2001) (finding that one party had superior title “would be to

ignore the purpose and effect o f Pennsylvania’s recording statutes, which are

intended to protect bona fide purchasers”); Land v. Pennsylvania Housing Finance

Agency , 515 A.2d 1024, 1026

- 27 (Pa. Cmwlth. 1986) (“The effect of [Section 351]

is to protect subsequent bona fide purchasers. . . . Clearly, Pennsylvania’s

recording laws do not render invalid an unrecorded interest in land.”); Roberts v.

Estate of Pursley, 700 A.2d 475 , 841, 844 (Pa. Super. 1998) ( the purpose of the

recording statutes is to protect bona fide purchasers )

. See also United States v.

Crissman

, No. 4:09

- CV

- 1884, 2011 U.S. Dist. LEXIS 110705 (M.D. Pa. 2011)

(Section 351 did not support argument that unrecorded mortgage was invalid;

Section 35 1 merely establishes Pennsylvania as a race recording system.)

.

As indic ated above, the failure to record a deed or mortgage is of

limited consequence: Pennsylvania law recognizes an unrecorded interest in

property as valid

. Pennsylvania Game Commission v. Ulrich , 565 A.2d 859, 862

(Pa. Cmwlth. 1989) ( Pennsylvania recording l aws do not render invalid an

unrecorded interest in land. ). Ulrich was a quiet title action brought by private

landowners in which the Game Commission argued that it should be entitled to the

benefit of recording statutes where the landowners’ claim to title was based on an

unrecorded deed. This court rejected that argument, explaining that the “purpose

of recording statutes is to protect subsequent bona fide purchasers from injuries

caused by secret pledges of property.” 565 A.2d at 861. We concluded that the

G ame C ommission failed to prove that it was the bona fide purchaser of 38 acres

of land or that it had acquired title to the parcel as part of a larger land grant

originally conveyed in 1793 ; rather, we held that the fact that the landow ners’ title9

stemmed from an unrecorded conveyance in violation of 21 P.S. §444 did n ot

render the landowners’ interest invalid.

As the court aptly noted in Montgomery County , if Section 351

requires the recording of all conveyances, “it does not follow th at Pennsylvania

courts would recognize unrecorded conveyances as valid.” 795 F.3d at 377.

Pennsylvania courts have applied these same principles to the

recording of mortgages and their assignments

. In US Bank N.A. v. Mallory , 982

A.2d 986, 993 (Pa. Super. 2009) , our sister court observed that Pa. R.C.P. No.

1147(a)(1) “ does not require that a party have a recorded assignment as a

prerequisite to filing a com plaint in mortgage foreclosure.” Indeed, “[t] he

recording of an assignment of mortgage has no legal import between the parties to

the assignment as it is not a prerequisite to [a bank] having standing to seek

enforcement of the mortgage via a mortgage foreclosure action. The mere fact that

an assignment goes unrecorded, even for an extended perio d of time, does not

negate a validly executed assignment. ” Jobe v. Wells Fargo Bank, N.A., No. 10

-

1710, slip op. at 16

- 17, 2014 U.S. Dist. LEXIS 8035, at *16

- 17 (M.D. Pa. 2014)

( quotation and citations omitted ). It does, however, give constructive notice to a

subsequent purchaser. First Citizens National Bank v. Sherwood

, 879 A.2d 178,

181 (Pa. 2005). Accordingly, “c ase law in Pennsylvania does not require mortgage

assignments to be recorded.” United States v. Green , No. 96

- 7275, slip op. at 32,

1998 U.S. Dist. LEXIS 4821, at *32 (E.D. Pa. 1998)

.

In response to Appellants ’ arguments on appeal, t he Recorders a ssert

that the Third Circuit Court of Appeals erred in Montgomery County by

impermissibly rewriting Section 351, failing to apply this Court’s holding in10

Chesapeake Appalachia, LLC v. Golden , 35 A.3d 1277 (Pa. Cmwlth. 2012) , and

ignoring Pennsylvania’s unique public land recording history

. We disagree.

First, as discussed above, the plain language of Section 351 is clear,

its purpose has been a ddressed by the courts on numerous occasions , and the

decision in Montgomery County i s in accord with that body of case law

.

Similarly, we discern no support for the Recorders’ position in

Chesapeake Appalachia

. In that case, the Wayne County Recorder of Deeds

(Recorder) refused to record four multiple lease assignments

, containing twenty

six, thirty

- nine, fifty

- five, and ninety

- one leases

, presented for recording by

Chesapeake Appalachia, LLC (Chesapeake)

. Chesapeake sought manda mus relief

from the trial court, which granted Chesapeake summary judgment and issued an

order directing the R ecorder to rescind her policy against recording blanket

assignments

. The Recorder appealed to this C ourt, and we affirmed.

In doing so, we det ermined that leases and assignments of leases are

entitled to be recorded under Pennsylvania law and that Section 351 requires the

Recorder to record such written instruments. Id. at 1280

- 81. We cited as

persuasive the Superior Court’s decision in Lesnic k v. Chartiers Natural Gas

Company , 889 A.2d 1282, 1284

- 85 (Pa. Super 2005), and its observation that

Section 351 requires all transferences of real property to be recorded or else be

judged fraudulent and void as to any subsequent purchaser. As additiona l

persuasive authority, we quoted the United States District Court for the Middle

District of Pennsylvania ’s decision in Woodward v. Bowers , 630 F. Supp. 1205,

1207 (M.D. Pa. 1986) (emphasis omitted), summarizing the duty of a recorder of

deeds : In short, the Recorder is a ministerial officer charged

with recording all documents presented to him. The only situations in which a Recorder may refuse to record a11 document presented to him are where the appropriate fee is not paid, where the document i s not of the type that is statutorily entitled to recording . . . and where the document on its face lacks a proper acknowledgment. The Recorder is truly just a “custodian” of documents.

Rather than supporting Recorders’ contentions, our decision in Chesapeake

Appalachia illustrates that t he role of the R ecord er s is t o perfo r m such ministerial

acts as required by statute

. Neither Section 351, other recording provisions, nor

decisions of Pennsylvania courts recognize a recorder of deed’s discretion,

o bligation, or authority beyond that set forth in the statutory framework

.

Finally, to support their contention that Section 351 absolutely

mandates the recording of a mortgage assignment, the Recorders provide extensive

discussion concerning th e history of Pennsylvania recording laws , quoting statutes

enacted in 1682, 1715, 1775, and 1841. However, the body of case law addressing

the purpose and effect of Pennsylvania’s recording laws reflect s no support for the

Record ers’ interpretation of Section 351.

Were we to reach a different conclusion as to whether Section 351

imposes a mandatory recording requirement, we would agree with the court in

Montgomery County that there is no language in Section 351, or other statutory

provision governing Recorders of Deeds generally, which impos es an obligation or

confers authority upon the Recorders to enforce Section 351.

The Recorders argue that the consequences of mandating recording

would better serve the public interest . They base their assertions of standing in

part on their “ obligation to protect the public ,” as discussed in Schaeffer v. Fr e y

,

589 A.2d 752 , 756 (Pa. Super. 1991)

. In that case a common pleas judge sought

injunctive relief against the county recorder of deeds; the judge sought to prohibit

the de

- binding of county deed books during a county project to reproduce the deed12

books onto microfilm. In affirming the denial of injunctive relief, the court

discussed the duties of the recorder of deeds, stating as follows:

The primary duty of the recorder of deeds is to serve the public by receiving and duly recording any recordable

instruments so as to serve the future necessities of the

law. [Section 1 of the Act of May 28, 1715, 1 Sm.L. 94,
16 P.S. §9701]

, repealed where inconsistent with Act o f Aug. 4, 1955, P.L. 303, §3; 76 C.J.S. Registers of Deeds §§1, 10(b) (1952) (stating the recorder ’s duty “ is to record deeds, mortgages, and other instruments affecting realty in the official books provided and kept for such

purpose ” ). As the custodian o f the recording books, or

deed records, the recorder of deeds “ is obligated to protect the public . . . in preserving the integrity of the official records of his [or her] office. ” 76 C.J.S. Registers of Deeds §10(b). In 1775, the legislature of Pennsylv ania first described the duty of the recorder of

deeds. As originally e nacted, the recorders of deeds

“ shall keep a fair book, in which he [or she] shall immediately make an entry of every deed or writing brought into his [or her] office to be recor ded.” [Section
6 of the Act of March 18, 1775, 1 Sm.L. 422, 16 P.S.
§9731]

, repea led where inconsistent with Act of Aug. 4,
1955, P.L. 303, §3.

* * *

We conclude the recorder of deeds, as the custodian of the county deed books, has the duty and respons ibility to safeguard the deed records within her custody.

589 A.2d at 756. Rather than provide grounds for standing , the decisions in

Chesapeake Appalachia and Schaeffer confirm that the duty owed by the

Recorders to the public is to record and safeguard the records that are properly

presented for recording. Unsurprisingly, the Recorders cite no authority

suggesting that their obligations and authority include protecting the publ ic from

the myriad of harm they argue is sure to result from the allegedly inaccurate and13

unreliable records in the MERS® System. In response to the Recorders’

contention that they are the only entities with a sufficient interest in this matter to

“vindic ate the purpose of the recording acts and protect Pennsylvania citizens from

fraud related to land records,” ( B rief at 54

- 55), we respectfully observe that such

concerns are more appropriately protected by the Attorney General.

Importantly, and as the co urt observed in Montgomery County, i n this

appeal “ we are not called upon to evaluate how MERS impacts various

constituencies or to adjudicate whether MERS is good or bad.” 795 F.3d at 379.

To the extent that public policy matters are implicated in this appeal, there is no

question that matters of public policy are solely committed to the legislature, and

not this Court.

Accordin gly, we reverse.

MICHAEL H. WOJCIK, Judge

Judge Cohn Jubelirer did not participate in the decision of this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

MERSCORP, Inc. n/k/a MERSCORP : Holdings, Inc.; Mortgage Electronic : No. 523 C.D. 2016 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., :

: Appellants :

:

v. :

: Delawar e 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 : Capac ity 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 :

O R D E R

AND NOW, this 4 th day of May , 201 7

, the order of the Court of

Common Pleas of Delaware County dated February 12, 2016, is reversed.

__________________________________ MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

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 : Corpor ation; 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., : Appellants :

:

v. : No. 523 C.D. 2016

: Argu ed: October 19, 2016 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 : Capac ity As Recorder Of Deeds :PKB

- 2

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 :

BEFORE: HONORABLE MARY HANN AH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE JOSEPH M. COSGROVE, Judge

DISSENTING OPINION

BY JUDGE BROBSON FILED: May 4, 2017

The majority offers a cogent analysis of the merits of the dispute that

the Recorders of Deeds (Recorders) frame in their coordinated complaints.

Preliminary objections dismissing an action outright, however, should only be

sustained “where it is clear and free from doubt that the pleader has not pleaded

facts sufficient to establish his right to relief.” P.J.S. v. Pa. State Ethics Comm’n

,
669 A.2d 1105, 1008 (Pa. Cmwlth. 1996). Any doubt m ust be resolved in favor of

overruling the preliminary objections. Id.

Although I may ultimately adopt the majority’s view on the merits, a

whiff of doubt remains. I, therefore, would prefer to see this matter mature past

the pleadings stage before rende ring a final judgment on either the properPKB

- 3

construction of Section 1 of the Act of May 12, 1925, P.L. 613, as amended

,

21 P.S. § 351, or the authority of the Recorders to maintain their declaratory

judgment actions. This may as well have been the preferen ce of the Court of

Common Pleas of Delaware County and the rationale for i ts February 12, 2016

Order, overrulin g the preliminary objections. I would, therefore, affirm.

P. KEVIN BROBSON, Judge

Judges McCullough and Covey join in this dissent.