Rebecca Bowman, Esq. PE, FNSPE
We’re all familiar with a statute of limitation. It is a statute that limits the timeframe within which a damaged party must initiate litigation (i.e. file a lawsuit). The statute of limitation allows limited exceptions under equitable doctrines (i.e. the discovery rule for latent defects). The duration of the statute of limitation varies from one type of wrong to another, so the duration is a function of the way that the wrong is conceptualized. Have your eyes glazed over? Don’t worry. That’s the last we’re going to talk about it.
Many of us are less familiar with the statute of repose, but in some ways the statute of repose can be more important and more valuable.
Let’s take a look. A statute of repose is a complete block to the filing of a lawsuit after the passing of a period of time following substantial completion. In Pennsylvania, the current statute for construction is found in 42Pa.C.S.§5536.[1] It’s short, pretty well-written, and has only three sections, so you’re getting the whole thing:
§5536. Construction projects.
(a) General Rule – Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).
(b) Exceptions.–
(1) If an injury or wrongful death shall occur more than ten and within 12 years after completion of the improvement a civil action or proceeding within the scope of subsection (a) may be commenced within the time otherwise limited by this subchapter, but not later than 14 years after completion of construction of such improvement.
(2) The limitation prescribed by subsection (a) shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death for which it is proposed to commence an action or proceeding.
(c) No extension of limitations.–This section shall not extend the period within which any civil action or proceeding may be commenced under any provision of law. [Emphasis added.]
On January 31, 2023, a bill was introduced in the Pennsylvania Senate (Senate Bill 336 of 2023-2024. The bill proposed to make two significant changes to 42Pa.C.S.§5536. The first proposed change was to reduce the duration of the statute of repose from twelve years to six. The second was to add a definition of “lawfully” as included in §5336 (a):
(d) Definition.–As used in this section, the term “lawfully” means a person who, when required by law, is licensed or otherwise authorized by law to perform or furnish the design, planning, supervision or observation of construction. The term includes the design and construction of any improvement to real property or a person who has secured a permit for the construction of improvements to real property.
The bill did not pass out of the Judiciary Committee (so it did not have a chance to pass). Why, you might ask, did I even bring it up? We’re about to go into that.
First, I’m going to share some sort-of-hidden case information. In Durbin v. Fleeher, 2014-00971 in Washington County, an order was filed on October 22, 2020, resolving a motion for judgment on the pleadings based in large part on the statute of repose. The case was filed in 2014 and involved a house built in 1992. Following the catastrophic failure of the house in August 2013, the builder made a site visit during which he made allegations about the circumstances causing the failure and interfered with rescue personnel.
The Court reiterated that the party seeking the protection of the statute repose must show, among other things, that the activity of the moving party must be within the class which is protected by the statute, and referred to the qualifying start date as “the date of the last culpable act or omission of the defendant.”[2] The court’s decision to deny the motion for judgment on the pleadings was based on the factual issue of whether or not the builder’s site visit in August 2013 constituted the last culpable act or omission in an ongoing pattern of fraud, concealment, and deception. It was unclear whether the order was a finding that the fraud, concealment, and deception prevented the construction from being “lawful” or a finding that the builder’s site visit became the start date for the statute of repose. In either case, though, the builder was unable to shield itself with the statute of repose.
In the past few years, there have been several Pennsylvania cases alleging that construction that has violations of the applicable building codes are, thereby, automatically not “lawful.” That would mean that the statute of repose, arguably, wouldn’t apply.
In Johnson v. Toll Brothers, 302 A.3d 1231 (Pa. Super. 2023), the court drew a distinction between “lawful” and “legal.” Finding that “lawful” meant “warranted or authorized by the law,” but “legal” referred to acts done or performed in accordance with the law.” Using the analogy that a speeding-but-licensed driver was being illegal by violating the law but lawful by being properly licensed, the court held that building code violations were illegal but not unlawful.
The court in Tibbit v. Eagle Home Inspections, 305 A.3d 156 (Pa. Super. 2023), found that the one-year statute of repose for home inspection reports applied to all claims flowing out of the home inspection, including consumer fraud claims under the Uniform Trade Practices and Consume Protection Law (UTPCPL). There was no discussion of whether or not the UTPCPL claims made the home inspection unlawful.
In Venema v. Moser Builders, 284 A.3e 208 (Pa. Super. 2023), the court used an analysis similar to the Johnson analysis, holding that the issuance of a certificate of occupancy “hinges on a satisfactory ‘final inspection’ showing that the construction of the resident comports with the governing building codes” and becomes the date of completion, triggering the beginning of the statute of repose.
A slightly off-track case is Clearfield County v. Transystems, No.193 C.D. 2024 (November 1, 2024), was argued before the Pennsylvania Supreme Court on October 7, 2025. This case questions whether the statute of repose overrides a corollary to sovereign immunity and translated roughly from the Latin: time doesn’t run against the king . This is a common law interpretation of sovereign immunity, so one might anticipate that a express statute would override a common law concept. We’ll have to wait and see.
The case of Aloia/Stimson v. Diament Building Corp, resulted in a non-precedential decision (No. 1621 EDA 2023) from the Superior Court. [“Non-precedential” means that the case has such unique circumstances that it cannot be cited or analogized. However, it still serves to indicate the court’s thinking.] This case might look just like Tibbet, but there was a special circumstance. In the local township (West Pikeland), an ordinance rendered “any violation of the International Residential Code to be “unlawful.” Despite that special circumstance, the Superior Court still affirmed the application of the statute of repose to dismiss the complaint. The case has been appealed to the Pennsylvania Supreme Court. Again, we’ll have to wait and see.
Why did I walk you through all of this? The statute of repose in your jurisdiction appears to be a magical cloak of invisibility from a litigation standpoint. And I want to make sure that you know how it works in general. However, I also need you to know that hem of this cloak is a little frayed, so pay attention to what is going on the legal world.
[1] The other statute of repose that may sometimes come into play for us is for home inspectors. The statute is found at 68 Pa.C.S.A.§7512 and provides for a 1-year statute of repose from the date of the delivery of the home inspection report.
[2] Citing to Dubose v. Quinlan, 643 Pa. 244, 260-61, 173 A.3d 634, 644 (2017).
Rebecca A. Bowman, Esq., P.E. , F.NSPE, is the principal of a woman owned business in civil engineering, dispute resolution, real estate, and legal services. She is experienced in boundary law issues, engineering design and forensic analysis, construction/project management, dispute resolution, real estate, and small business start-ups. She is a registered professional engineer and a certified arbitrator, mediator, and Christian conciliator. Mrs. Bowman writes a column for Pennsylvania’s PE Reporter, “Risky Business”. Her book, Residential Construction and Remodeling in Pennsylvania: Working with Homeowners and Small Contactors is going into its second edition. She is also a frequent CPE lecturer (law and engineering) for a variety of providers. She received her B.S. degree in civil engineering from the University of North Dakota, her M.B.A. degree from Oklahoma University, and her J.D. degree from Duquesne University. Mrs. Bowman is involved with the National Society of Professional Engineers, the American Arbitration Association, the Institute for Christian Conciliation, and the American Bar Association. She volunteers with Legal Aid, Family Promise, the Pregnancy Resource Center of the South Hills, MATHCOUNTS®, and National History Day. She received the 2014 PSPE President’s Distinguished Service Award and served as the National Society of Professional Engineers as the Senior Director of Ethics and Professional Practice.
Hello and Happy New Year!
On behalf of the 2022-2023 PSPE Nominating Committee, I offer the following report. The committee discussed the nominated slate of officers for the 2022-2023 PSPE year.
