Declining to resolve prompts to interpret language of statute of repose, court says question of “lawfully” is a factual determination and quashed appeal of denial of motion for summary judgment on basis that claims barred by statute of repose.

The trial court denied the contractor’s motion for summary judgment based on the statute of repose, opining that the “current state of the law on the statute of repose is somewhat unclear,” in that the term “lawfully” is unclear as to whether it “requires compliance with (1) all prerequisites necessary to obtain municipal permission to engage in the various activities mentioned in the statute; or (2) all local and state ordinances, regulations, and statutes.” Pursuant to the statute of repose, “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 certain damages. 42 Pa.C.S. § 5336(a) (emphasis added).

The Superior Court declined to address the interpretation of “lawfully,” opining that it lacked jurisdiction to address the question, but it did indicate that “lawfully” is a factual determination.

From a defense perspective, Calabretta indicates that higher courts remain unwilling to provide guidance or clarification on a particularly strong defense tool provided to contractors by Pennsylvania’s legislature and that the lack of guidance regarding interpretations of the statute of repose will continue to sustain the somewhat popular, and certainly voluminous, litigation in Pennsylvania regarding faulty stucco installation matters, which could otherwise be dismissed.

^{Case Law Alerts, 1st Quarter, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}