Bindas v. Department of Transportation

• Decision Date: 18 May 2021
• Docket Number: No. 652 C.D. 2018,652 C.D. 2018
• Citation: 260 A.3d 991
• Parties: Donald R. BINDAS, Appellant v. Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION
• Court: Pennsylvania Commonwealth Court

260 A.3d 991

Donald R. BINDAS, Appellant

v.Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION

No. 652 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued February 12, 2020

Decided May 18, 2021

Publication Ordered July 22, 2021

John E. Egers, Jr., Washington, for Appellant.

Nicholas D. Mertens, Assistant Counsel, Pittsburgh, for Appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,¹ HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE WOJCIK

Donald R. Bindas (Landowner) appeals from the February 26, 2018 order of the Court of Common Pleas of Washington County (trial court), which sustained the preliminary objections (POs) filed by the Pennsylvania Department of Transportation (Department), and dismissed Landowner's Petition for Appointment of a Board of Viewers that was filed pursuant to Section 502(c) of the Eminent Domain Code,² based on the Department's claimed easement on Landowner's property (Property), located in South Strabane Township (Township), Washington County (County), pursuant to a highway right-of-way that was established through a 1958 Construction and Condemnation of Right of Way Plan (Plan),³ which condemned the Property when it was owned by predecessors in title to the Property. We affirm.

The Property was once part of a larger tract previously owned by Otto and Rose Koehler (Koehlers) and E. Helene Carter (Carter). Reproduced Record (R.R.) at 293a-296a. On August 1, 1958, the Governor approved and signed the Plan, which provided for the construction of Interstate Route 70 (I-70), id. at 415a, effectively condemning the Property and subjecting it to an easement. The Commonwealth's Department of Highways, the Department's predecessor,⁴ filed the Plan in its offices in Harrisburg and recorded it in the County Recorder's Office on August 12, 1958. Id. The Recorder's Office did not maintain an index for the plans that had been filed, loosely organizing the plans by the municipalities involved in an unlabeled filing cabinet.

When the Department of Highways filed the Plan thereby condemning the Property, just compensation was paid to the Koehlers and Carter. R.R. at 293a-296a. Although the Koehlers and Carter executed quitclaim deeds for the Property to confirm a settlement and the payment of just compensation for the condemnation, those deeds were not recorded. Id. at 122a-125a. However, subsequent deeds in the chain of title for the condemned Carter property set forth this highway easement. Id. at 114a, 406a-414a.

On September 16, 1976, the Koehlers conveyed their interest in the Property to the Washington County Tax Claim Bureau due to the non-payment of taxes. Frances and Cecilia Jaworski (Jaworskis) purchased the Property from the Tax Claim Bureau by a deed dated December 15, 1976, and later by a corrective deed dated January 13, 1977. R.R. at 262a-269a. The Property was identified in both deeds to the Jaworskis by former tax parcel number 60-4-1084. Id. at 241a, 262a. Landowner purchased the Property from the Jaworskis in 1977, and the deed referenced parcel identification number 600-004-00-00-0036-00. Id. at 184a-188a, 241a-245a, 247a-251a.

In 2015, the Department, through its contractor Golden Triangle Construction (Golden), began to construct a "diverging diamond interchange" on I-70. R.R. at 96a, 103a. As part of the project, a drainage system was installed on property located between I-70, Country Club Road and Locust Avenue in the Township. Id. at 105a. As part of the project, Golden constructed a retention pond in the easement for its drainage and mitigation needs in order to control and slowly release water into a perennial stream. Id. at 102a, 105a. Landowner immediately objected to the Department's trespass on the Property, which he considered to be his unencumbered land. Id. at 103a.

On April 7, 2016, Sheila Sten (Sten) performed a title search for Landowner regarding title to the Property. R.R. at 59a-60a. Sten did not find a record of the Department's interest in the Property or any reference to the 1958 Plan. Id. at 66a. Concurrently, the Department provided copies of the Plan to Sten and Landowner. Id. at 66a-67a, 71a. Also around this time, Sten found an unindexed microfiche copy of the Plan in the County Recorder's Office. Id. at 67a-68a, 70a. As a result, Landowner executed a corrective deed in 2016 that altered the boundaries of the Property. See id. at 416a-423a.

On August 8, 2016, Landowner filed a Petition for Appointment of a Board of Viewers (Petition) under Section 502 of the Eminent Domain Code in the trial court. The Department filed POs to Landowner's Petition, asserting its right-of-way over the Property under the 1958 highway easement. The trial court held a hearing on September 5, 2017.

Sten testified that she searched records dating back to 1940 and the incorporated tax parcel 60-4-1084 from the 1968 tax map, which she referred to as the "old map." R.R. at 62a-64a. Sten acknowledged that she was not aware of the Property's proximity to the Interstate, and she did not think to look for highway right-of-way plans. Id. at 86a. She stated that in her initial 2016 search, she did not uncover an indexing or any claim by the Department. Id. at 66a.

Sten acknowledged that when she was informed of the claimed right-of-way, she found the Plan in microfiche form in an unlabeled drawer of a filing cabinet located at the County Recorder's Office. R.R. at 67a-68a, 71a. She testified that a highway plan should be found in a right-of-way book or a highway map. However, Sten stated that she had encountered issues before with highway plans and other title searches that were not indexed, adding that she frequently found "that documents pertaining to the interstate are not indexed, condemnations and so forth, you couldn't find them." Id. at 81a. Sten explained that, based on her experience, records of "older" condemnations, i.e. , those prior to the year 2000, are very difficult to find. Id. Reviewing her documents, Sten also said she that was able to physically locate an oil and gas lease from Landowner to Rice Drilling. Id. at 82a.

Sten also testified that the indexing of plans is performed by the County Recorder's Office. R.R. at 86a. She stated that the highway right-of-way easement that she found had been recorded. Id. at 87a. Sten also acknowledged that she had been in the Recorder's Office many times and that she was aware of the filing cabinet, which contained the 1958 highway plans. Id. at 89a.

Ultimately, on February 26, 2018, the trial court issued a Memorandum Order sustaining the Department's POs in part and dismissing the Petition. In the Pa. R.A.P. 1925(a) opinion filed in support of its order, the trial court explained that Landowner had purchased the Property in 1977. Noting that Landowner executed a corrective deed to himself in 2016, the trial court accepted Landowner's description of the Property as the land between I-70, Country Club Road, and Locust Avenue. Trial Court 5/24/18 Op. at 2.

Because the Department asserted a highway easement over the Property based on the 1958 Plan, the trial court determined that the dispositive issue was whether the failure of the County Recorder's Office to index the 1958 Plan rendered the highway easement invalid. Trial Court 5/24/18 Op. at 3-4. The trial court recognized that in 1958, Section 210 of the State Highway Law⁵ governed eminent domain proceedings with respect to properties taken for the construction of highways.⁶ The trial court determined that Section 210 required the Department of Highways to: (1) develop a written plan; have the plan approved by the Governor; (2) file the plan as a public record in the office of the Department of Highways; and (3) file a copy of the plan in the office for the County Recorder of Deeds at the Department of Highways’ expense and in a plan book provided by the County. See id. at 5. The trial court concluded that, in 1958, the Department of Highways completed all of these tasks and that the failure to index the plan following its recording was the fault of the County Recorder's Office. Id. at 5-6.

The trial court rejected Landowner's argument that the failure of the County Recorder's Office to index the Plan prevented the world from having notice of the condemnation, explaining:

Some, but not all, of the deeds expressly refer to the Highway easement and condemnation. Because the property is a small parcel between a major highway and a local road, a search for the Highway Plan would be warranted by a prospective buyer. The Plan was available in the [County] Recorder's Office. A [Department] employee, who was aware that a Plan was filed in 1958, was able to locate the Plan within the drawers in the [County Recorder's Office] within five minutes or so. [R.R. at 119a.]

Trial Court 5/24/18 Op. at 6.

The trial court noted that the Supreme Court has not addressed whether the failure of a County Recorder's Office to index a plan pursuant to Section 210 of the State Highway Law invalidates an otherwise properly executed condemnation under its provisions. However, the trial court observed that in First Citizens National Bank v. Sherwood , 583 Pa. 466, 879 A.2d 178, 181-82 (2005) ( First Citizens ), the Supreme Court determined that a properly recorded mortgage was deemed to provide constructive notice to all, pursuant to Section 2 of the Act of April 24, 1931, P.L. 48, 21 P.S. § 357,⁷ despite the fact that it had been defectively indexed.⁸ The trial court concluded: "This case is analogous to that. A defective indexing does not invalidate the instrument." Trial Court 5/24/18 Op. at 7.

As the trial court explained:

[The Department of Highways] purchased this property from the Koehlers and Carter through condemnation in 1958. [The Department of Highways] paid them and the property owners tendered a quitclaim deed.

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