Professional Liability

The Philadelphia County Court of Common Pleas recently rejected the defendant’s efforts to prevail on summary judgment based upon Pennsylvania’s construction statute of repose, 42 Pa. C.S. Section 5536. The court ruled in favor of the plaintiffs, consisting of 37 families living in nine different developments of the defendant. The plaintiffs sued the defendant and its related entities for construction defects in their homes, including systemic defects permitting water intrusion.

The construction statute of repose potentially shields builders if a lawsuit is filed more than 12 to 14 years after construction of the home is completed. However, the plaintiffs had three main arguments as to why the statute of repose does not bar these claims.

First, under Calabretta v. Guidi Homes, 241 A.3d 436, 439 (Pa. Super. 2020), issues of material fact remain if there is a question as to whether construction was “lawfully” performed for the builder, which is required under the statute of repose. Determining whether construction is “lawfully” performed may involve whether a builder had all the required permits and complied with applicable building codes. Therefore, residential builders in Pennsylvania may not be shielded by the construction statute of repose if a question remains as to whether a building was unlawfully built, as this determination must take place at trial.

Second, while the construction statute of repose typically extends for 12 years, plaintiffs who allege an injury between years 10 and 12 following the completion of construction enjoy an extension of the statute to fourteen years. See Ashdale v. Guidi Homes, 2021 Pa. Super. LEXIS 93, at *11-12 (Pa. Super. Mar. 5, 2021). In the instant matter, each plaintiff alleged an injury taking place between years 10 and 12. 

Third, the plaintiffs argued the statute applies only to those “performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property.” Therefore, the plaintiffs reasoned that the statute would not apply to the defendant’s entities, which were sellers of property and did not play a role in constructing the at-issue homes consistent with Section 5536(a).

Ultimately, the trial court sided with the plaintiffs on all three issues, citing that these are questions of fact that must survive summary judgment. 
 

_{Case Law Alerts, 1st Quarter, January 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2032 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}