The Statute of Repose and Why SB 399 Is Important

• The Statute of Repose establishes the time frame following the completion of a construction project during which legal claims can be filed against architects, engineers, and contractors.
• The longstanding Statute of Repose for contractors and designers has been challenged in court. At issue is whether contractors and designers will have perpetual liability. One of these cases involves a project that was completed more than 40 years ago.
• Design professionals have personal liability for projects where they have responsible charge or personally supervise. 12 years is a long time to retain voluminous construction project records, including electronically stored data.
• Insurance is not available to design professionals or contractors extending into the future. Professional liability is on a claims-made basis and General Liability Insurance is the policy in effect at the time of the alleged breach.
• PA has one of the longest Statutes of Repose of any state. Shortening the 12 years to 6 years would put PA in the mainstream of lengths with other states. (Delaware’s Statute of Repose is 6 years).
• The current law lacks a definition of “lawfully” which has led to creative litigation attempting to circumvent the protection intended under the law.

Summary of Current Statute of Repose PA Supreme Court Cases:

Aloia v. Diament Building Corp.

In the Aloia appeal to the Pennsylvania Supreme Court, the plaintiffs’ challenge to the Construction Statute of Repose is based upon a statutory construction argument claiming that the design and/or construction is not “lawfully performed” where there are factual allegations of violations of the applicable building code. This is a significant issue for architects, engineers, landscape architects, professional land surveyors, and contractors as, under this interpretation, the Construction Statute of Repose, (which has been in place in Pennsylvania since 1965), would render the protections for architects, engineers, landscape architects, and contractors meaningless. 

Clearfield County v. Transystems Corporation

This Supreme Court appeal involves another attack on the Pennsylvania Construction Statute of Repose, 42 Pa. C.S. §5536. In the appeal, Clearfield County argues that the doctrine of nullum tempus (time does not run against the King) makes the 12-year Construction Statute of Repose inapplicable on public projects. Clearfield County claims that design and construction errors, which occurred on a construction project more than 42 years before the lawsuit was filed (substantial completion in 1981), are not time-barred by the Construction Statute of Repose.

Recent court cases, including Aloia v. Diament Building Corp. and Clearfield County v. Transystems Corporation, have intensified this problem by raising questions about whether the protections of the Statute of Repose can be circumvented. In Aloia, plaintiffs argued that any alleged code violation renders work not “lawfully performed,” potentially nullifying the statute altogether. In Clearfield County, the county attempted to argue that nullum tempus allows lawsuits on public projects even after 42 years—threatening to erase limits that have existed since 1965. These cases reveal the urgent need for clarity and modernization to prevent perpetual liability. Senate Bill 399 provides exactly that clarity.