                               [J-64-2018]
                IN THE SUPREME COURT OF PENNSYLVANIA
                            MIDDLE DISTRICT

 SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


MERSCORP, INC. N/K/A MERSCORP         :   No. 67 MAP 2017
HOLDINGS, INC.; MORTGAGE              :
ELECTRONIC REGISTRATION               :   Appeal from the Order of the
SYSTEMS, INC.; BANK OF AMERICA,       :   Commonwealth Court at No. 523 CD
N.A.; CITIMORTGAGE, INC.; CITIBANK,   :   2016 dated May 4, 2017, Reversing
N.A.; CREDIT SUISSE FINANCIAL         :   the Order of the Court of Common
CORPORATION; EVERHOME                 :   Pleas of Delaware County, Civil
MORTGAGE COMPANY; JP MORGAN           :   Division, at No. 13-010139, dated
CHASE BANK, N.A.; STATE FARM BANK     :   March 22, 2016.
F.S.B.; WELLS FARGO BANK, N.A.;       :
SOVEREIGN BANK; HSBC BANK USA,        :   ARGUED: September 26, 2018
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


JUSTICE DOUGHERTY                                           DECIDED: April 26, 2019
      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



                                    [J-64-2018] - 2
(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 2015.1 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.


1 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.



                                     [J-64-2018] - 3
       The Recorders’ complaints set forth six identical claims2 based on Section 351 of

Title 21 (Deeds and Mortgages), which is entitled “Failure to record conveyance,” and

provides 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.
       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


2The 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.


                                     [J-64-2018] - 4
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).




                                     [J-64-2018] - 5
       A divided Commonwealth Court reversed.3 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 US 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).

       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.4

3Judge 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.
4Judge  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



                                      [J-64-2018] - 6
       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, 174 A.3d 549 (Pa.

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., 934 A.2d 1184, 1187 (Pa. 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, 119 A.3d

335, 341-42 (Pa. 2015).




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.




                                         [J-64-2018] - 7
       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, 848 A.2d 94, 99 (Pa. 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




                                      [J-64-2018] - 8
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




                                       [J-64-2018] - 9
permissive on their face, and distinguishes them from the mandatory language in Section

351.5

        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




5 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.




                                      [J-64-2018] - 10
requirement. The Recorders submit whether an unrecorded instrument may be enforced

is irrelevant to the interpretation of Section 351, which explicitly requires recording.6

       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


6 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).


                                      [J-64-2018] - 11
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.

       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




                                      [J-64-2018] - 12
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.7       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, 879 A.2d 178,

181 (Pa. 2005), not to provide a revenue-generating tool for county recorders. Id. at 25.

       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


7 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, 879 A.2d 178, 183 (Pa. 2005).


                                     [J-64-2018] - 13
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, 174 A.2d 858, 859 (Pa. 1961) (“The recording

of the deed was not essential to its validity or the transition of the title.”).8

       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


8 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


                                        [J-64-2018] - 14
“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, 143 A.3d 896, 906 (Pa. 2016), quoting Roethlein v. Portnoff

Law. Assoc., 81 A.3d 816, 822 (Pa. 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, 103 A.3d

1276, 1285 (Pa. 2014), quoting Board of Revision of Taxes, City of Philadelphia v. City of

Philadelphia, 4 A.3d 610, 622 (Pa. 2010). See also Yates v. United States, — U.S. —,

135 S.Ct. 1074, 1081-82 (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).

       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), 888

A.2d 758, 764-65 (Pa. 2005), citing Oberneder v. Link Computer Corp., 696 A.2d 148,

150 (Pa. 1997), Commonwealth v. Baker, 690 A.2d 164, 167 (Pa. 1997), see also

Commonwealth ex rel. Bell v. Powell, 94 A. 746, 748 (Pa. 1915) (interpreting “shall” as




                                      [J-64-2018] - 15
“may”); Fishkin v. Hi-Acres, Inc., 341 A.2d 95, 97-98 (Pa. 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, 923 A.2d 1099, 1104

(Pa. 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, 140 A. 515, 517 (Pa. 1928);

quoting In re McQuiston’s Adoption, 86 A. 205, 206 (Pa. 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, 154 A. 299 (Pa. 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




                                      [J-64-2018] - 16
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 Opinion slip op. at 28-

29.   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




                                      [J-64-2018] - 17
every word); see also Holland v. Marcy, 883 A.2d 449, 455-56 (Pa. 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, 860 A.2d 10, 19 (Pa. 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).9

       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, 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 405 A.2d 879, 880 (Pa. 1979) (“Title to real estate


9 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 Opinion,
slip op. at 6-7. 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 7 n.5, 28-29. 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.



                                      [J-64-2018] - 18
may be passed by delivery of a deed without recording.”); Fiore v. Fiore, 174 A.2d 858,

859 (Pa. 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 US 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).10

       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.



10 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
Opinion, slip op. at 28. 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.


                                      [J-64-2018] - 19
         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.11 Judge Posner likened the Illinois statute’s provision that deeds




11   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.



                                       [J-64-2018] - 20
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.12 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.

       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



12 Justice Donohue rejects this analogy and presents an alternative. Dissenting Opinion,
slip op. at 5-6. 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 6. 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.


                                      [J-64-2018] - 21
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, 879 A.2d 178, 181 (Pa. 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. 13


13 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, 142 A.2d 14, 17 n.5 (Pa. 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 Opinion, slip op. at 12-16.
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



                                      [J-64-2018] - 22
       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, 753

A.2d 807, 811 (Pa. 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




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, 142 A.3d 779 (Pa.
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, 17 A.3d 357, 370-71 (Pa. 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.”).




                                      [J-64-2018] - 23
F.3d at 378 (concluding Section 351 imposes no duty to record all land conveyances in

county recorder’s office).

       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., 555

A.2d 812, 815 (Pa. 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., 83 A.3d 901, 920-21 (Pa. 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.14



14As 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



                                       [J-64-2018] - 24
      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



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, 733 A.2d 623, 626 (Pa.
1999), quoting Cort v. Ash, 422 U.S. 66, 78 (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, 788 A.2d 357, 359, 360 (Pa. 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
Opinion, slip op. at 25-26. 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, 3 A.2d 28, 30 (Pa. Super. 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 slip op. at 28. 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 Opinion slip. op. at 28-29) — would improperly expand
the limited duty to maintain and record presented documents that was expressly assigned
to the Recorders by statute.




                                    [J-64-2018] - 25
nature of a demurrer. The matter is remanded for proceedings consistent with this

opinion, including entry of judgment in favor of MERSCORP.

        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.




                                     [J-64-2018] - 26
