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Pennsylvania Supreme Court Reverses Superior Court on
Statute of
Limitations on Construction Claims
Jack W. Plowman*
In the very first edition of Construction News, in
January 2002, I wrote on statutes of limitations on Pennsylvania
construction contracts, specifically on the case of Gustine
Uniontown Assoc. Ltd. v. Anthony Crane Rental, 786 A.2d 246
(Pa. Super. 2001), and Romeo & Sons, Inc. v. P.C. Yezbak & Son,
Inc., 617 A.2d 1320 (Pa. Super. 1992). My conclusion was that
the Gustine case would be appealed to the Pennsylvania
Supreme Court and would be reversed. That has now occurred. 842 A.2d
334 (Pa. 2004).
The Supreme Court carefully considered the
earlier Superior Court decisions, distinguished the Romeo
case, and strongly disagreed with the Gustine
decision. In the Gustine case it appeared that
Gustine had contracted with an architect to design a mall, and
with numerous contractors for its construction, which was
substantially completed in September, 1993. Less than two (2) years
later the mall’s floor slabs and walls began to buckle, heave and
crack. Efforts were made to remediate the structural damage. In July
of 1999, Gustine filed suit against the architectural
firm and thirteen (13) contractors, alleging breach of implied
warranty and professional negligence, among other things.
Gustine filed preliminary objections asserting that the claims
were barred by Pennsylvania’s statute of limitations, which provides
that suit must be commenced for breach of contract within four (4)
years. The Court of Common Pleas, Wettick, J., dismissed the claims
as being time-barred. The Superior Court reversed, holding that
Pennsylvania’s catch-all statute of limitations requiring suit to be
commenced within six (6) years applied.
The Supreme Court, in an opinion by Justice
Castille, carefully considered the Superior Court’s reasoning and
concluded that it had decided the matter on a policy basis, which is
properly, a matter for the General Assembly, absent an ambiguity in
the statute, concerning which the Supreme Court found none. On the
contrary, the Court held that the four (4) year statute of limitations
unambiguously applied to all contracts, oral and written. The only
exceptions applicable here, noted the Court, were the “discovery
rule,” a judicially created exception to statutes of limitation, under
which the statute does not begin to run “until the point where the
complaining party knows or reasonably should know that he has been
injured and that his injury has been caused by another party’s
conduct,” and “the complaining party must use reasonable diligence to
discover the cause of an injury.” 842 A.2d at 344, n.8. The Court
further noted the Superior Court created the “repair doctrine,” which
doctrine the Supreme Court has not yet definitively accepted or
rejected. “Under the repair doctrine, the applicable statute of
limitations will be tolled where the evidence reveals that repairs
were attempted; representations were made that the repairs would cure
the defects; and the complaining party relied upon such
representations.” 842 A.2d at 344, n.8.
The Gustine case may well be
back before the appellate courts again as to whether the discovery
rule or the repair doctrine is applicable here. From the facts stated
in the opinion it is difficult to determine if either doctrine might
apply, but the case has been remanded, which means it has not yet been
finally disposed of, and will not be until the applicability of the
discovery rule or repair doctrine is considered based upon the facts
adduced.
*Of counsel, Bentz Law Firm, P.C.; fellow, American
College of Trial Lawyers; member, American Bar Association Forum on
the Construction Industry; member, American Bar Association Fidelity
and Surety Committee; Member, National Bond Claims Association;
Adjunct Professor, Emeritus, Duquesne University School of Law,
Author, Pennsylvania Mechanics’ Liens (Professional Education Systems,
1989); Author, with K.W. Lee, Construction Contracting for Public
Entities in Pennsylvania (Lorman Education Services, 2002).
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