Johnson v. Toll Brothers, Inc. et al., 302 A.3d 1231 (2023)

The Superior Court of Pennsylvania recently affirmed the defendants’ motion for summary judgment dismissing the plaintiffs’ construction defect claims on the grounds that their action was not commenced within the 12-year time period set forth in 42 Pa.C.S. § 5536 regarding the Statute of Repose. The statute sets forth, “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.”

The trial court had ruled that the plaintiffs’ suit was barred because more than 12 years had elapsed between the completion of the home’s construction and the commencement of the action. The Superior Court relied upon the statutory definition of the term “lawful,” and found that, “[e]ven if Toll violated local, state or federal rules when constructing the residence, the construction was still ‘lawful’ because Toll was authorized under the laws of the Commonwealth to do it.” Id. at 1236. That is, Toll was acting as a licensed builder, and the certificate of occupancy was issued by the Commonwealth upon completion of the project. Johnson further opined that the two-year filing extension for an “injury” either to persons or property resulting from a construction defect did not apply and that the continuing harm test is inapplicable under the Statute of Repose.