MERS et al. v. Recorder of
Deeds, et al. – Cmwlth. Court (en banc) – May 4, 2017
Preliminary objections of MERS
sustained in action by various recorders of deeds to collect filing fees under 21
P.S. 351 (Failure to record conveyance)
“[W]e agree with the court’s
conclusion in Montgomery County that, “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.” 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.
“[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.”
Dissent (Brobson, McCullough, Covey)
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
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.
