          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.; 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.                    :
                                         :
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          :


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
            HONORABLE 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 additional 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, and
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. Petitioner
Mortgage Electronic Registration Systems, Inc. (MERS), MERSCORP’s wholly-
owned subsidiary, serves as a mortgagee of record for mortgage loans registered 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
appellants 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 arose from four lawsuits filed by the Recorders.1 In
each action, the 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 statutory claim 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 Common 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.


                                              2
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 record 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 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.
21 P.S. §351.
                Virtually 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 record written documents memorializing the transfer of the promissory notes.
The parties agreed to stay these actions while an appeal was pending, and


                                          3
subsequently, the Court of Appeals reversed and held 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 (3rd Cir. 2015) (Montgomery
County).
              In doing so, the court determined that the statute’s language “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
subsequent 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 in Montgomery County, Appellants filed
joint preliminary objections, Reproduced Record (R.R.) at 351a-57a, which the
trial court denied. Appellants then sought an interlocutory appeal, asserting that
the trial court’s ruling conflicts 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). This Court granted Appellants’ petition for review, filed
pursuant to the note to Pa. R.A.P. 1311, to consider two 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.




                                         4
              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.
              While the Recorders argue that the words “shall be recorded” are
mandatory, Appellants 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 interests. 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 recording 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. It does, however, set
forth one consequence of a failure to record, which is that every conveyance not
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, we 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).


                                               5
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 imply 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 addresses the purpose of those 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 similar 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 intending 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 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.

       4
           It states:

(Footnote continued on next page…)
                                                   6
subsequent mortgagees and purchasers. Additionally, cases referencing Section
351’s recording requirement invariably relate to the validity of the deed or
instrument vis-à-vis another, such as a subsequent purchaser, bankruptcy trustee,
judgment creditor or an opposing party in a zoning dispute or tax sale; the 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
                time 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 creditor 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
                recording 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 consideration, or
                mortgagee, or creditor of the grantor, or bargainor therein.

21 P.S. §444.


                                                  7
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 of 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 351 merely establishes Pennsylvania as a race recording system.).
             As indicated 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 laws 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
Game Commission 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 landowners’ title


                                         8
stemmed from an unrecorded conveyance in violation of 21 P.S. §444 did not
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 that 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 complaint 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 period 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, “case 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, the Recorders assert
that the Third Circuit Court of Appeals erred in Montgomery County by
impermissibly rewriting Section 351, failing to apply this Court’s holding in




                                           9
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 addressed by the courts on numerous occasions, and the
decision in Montgomery County is 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 mandamus relief
from the trial court, which granted Chesapeake summary judgment and issued an
order directing the Recorder to rescind her policy against recording blanket
assignments. The Recorder appealed to this Court, and we affirmed.
            In doing so, we determined 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 Lesnick 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 additional
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 a
                                       10
             document presented to him are where the appropriate fee
             is not paid, where the document is 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 the role of the Recorders is to perform 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,
obligation, 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 the 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 reflects no support for the
Recorders’ 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 imposes 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. Frey,
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 deed


                                         11
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 of
             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 of 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
             Pennsylvania first described the duty of the recorder of
             deeds. As originally enacted, 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 recorded.” [Section
             6 of the Act of March 18, 1775, 1 Sm.L. 422, 16 P.S.
             §9731], repealed 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 responsibility 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 public from
the myriad of harm they argue is sure to result from the allegedly inaccurate and

                                          12
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
“vindicate the purpose of the recording acts and protect Pennsylvania citizens from
fraud related to land records,” (Brief at 54-55), we respectfully observe that such
concerns are more appropriately protected by the Attorney General.
             Importantly, and as the court observed in Montgomery County, in 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.
             Accordingly, we reverse.




                                        MICHAEL H. WOJCIK, Judge

Judge Cohn Jubelirer did not participate in the decision of this case.




                                          13
         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.                    :
                                         :
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       :



                                 ORDER


            AND NOW, this 4th day of May, 2017, the order of the Court of
Common Pleas of Delaware County dated February 12, 2016, is reversed.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
           IN 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             :
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.                           :   No. 523 C.D. 2016
                                         :   Argued: 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       :
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           :


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
        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 must 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 rendering a final judgment on either the proper


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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 preference of the Court of
Common Pleas of Delaware County and the rationale for its February 12, 2016
Order, overruling the preliminary objections. I would, therefore, affirm.




                                P. KEVIN BROBSON, Judge



Judges McCullough and Covey join in this dissent.




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