In a recent decision in Johnson v. Toll Bros., Inc., 302 A.3d 1231 (Pa. Super. 2023), reargument denied (Oct. 18, 2023), the Superior Court of Pennsylvania considered the question of whether the statute of repose, commonly applied to bar recovery in construction defect cases that are not filed within twelve (12) years of the completion of a given building project, remains viable where the Plaintiff alleges building code violations.
In Johnson, the claimant alleged various construction defects, including allegations that the defendant had negligently and in violation of applicable building codes installed door frames, brick façade and windows which allowed significant water intrusion into the home, causing continuous damages for at least five years up to and including the year in which their action was commenced. The action was commenced approximately thirteen (13) years after the building was constructed and a certificate of occupancy issued on the property. The defendant argued that the Statute of Repose, 42 Pa.C.S. § 5536, precludes recovery because the action was not commenced within twelve (12) years of the completion of the project. The Plaintiff acknowledged that if the Statute of Repose applied, he would be barred from suit. However, Plaintiff urged that 42 Pa.C.S. § 5536 is limited to cases where a builder is “lawfully” performing the construction work to be granted immunity from suit by the statutory language. In turn, Plaintiff alleged that the violation of building codes renders the construction “unlawful” and thus deprives the defendant of the defense.
The Superior Court initially reviewed the language of 42 Pa.C.S. § 5536, underlining that the statute allows for the defense to defendants that are “lawfully” preforming the improvements. Finding that the statute does not define “lawfully,” the Court turned to analysis of legislative intent in 1976, when the statute was enacted. At that time, the Court explained that Black’s Law Dictionary defined “lawful” as “warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law.” Black’s Law Dictionary, 1032 (4th ed. 1968). Elaborating further, the Note of that definition explained that “lawful” implies an act “that is authorized, sanctioned, or at any rate not forbidden, by law.” Id. The Note then compared that latter definition to the term “legal” which implies that an act “is done or performed in accordance with the forms and usages of law, or in a technical manner[,]” going no “further than to denote compliance, with positive, technical, or formal rules[.]”
Citing to analogous decisions, the Superior Court distinguished unlawful and illegal activity, finding that “even if [defendant] violated local, state or federal rules when constructing the residence, the construction was still “lawful” because [defendant] was authorized under the laws of the Commonwealth to do it. There is no dispute that [defendant] was a licensed home builder and that a certificate of occupancy was issued by the Commonwealth when construction of the [home] was completed.” Id at 1236. In turn, the Superior Court rejected the idea that the Statute of Repose does not apply to claims for alleged building code violations and affirmed the trial court.
The Johnson decision can be found here.
For additional questions, please contact Glen Shikunov, Esq. and/or Scott Tredwell, Esq.
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