Johnson v. Toll Brothers, Inc., 302 A.3d 1231 (Pa. Super. 2023)

This matter concerned claims of defective construction by the plaintiff against defendant for a home built in 2004. The plaintiff’s suit was filed after the 12-year limitation set forth in the Statute of Repose, 42 Pa. C.S. § 5536(a).

The plaintiff argued the Statute of Repose did not apply because the construction was “unlawful” in that the home had building code violations. The court had previously suggested sympathy with such arguments (see e.g., Calabretta v. Guidi Homes, Inc., 241 A.3d 436 (Pa. Super. 2020)), where it found that “resolving the issue presented by appellants concerning the applicability of the statute of repose necessarily involves a determination of facts relating to whether the construction was lawful.”

However, in Johnson, the court clarified that “lawful” construction, as used in the statute, merely means that the defendant was authorized under the laws of the Commonwealth to perform the construction. The import of this decision is that technical violations of building codes in construction are not sufficient to argue construction is unlawful and beyond the protection of the statute of repose.