Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/11/Venema-v.-Moser-Builders.pdf">Venema v. Moser Builders</a>, </em>the Superior Court of Pennsylvania (“Superior Court”) upheld the trial court’s decision to dismiss the plaintiff’s complaint with prejudice. The Superior Court affirmed the plaintiff’s claims were time-barred by the 12-year Statute of Repose for actions concerning construction defects.

The subject premises in this case is located in Chester Springs, Pennsylvania and was constructed by Moser Builders (“Moser”) in 2003. A certificate of occupancy was issued for the residence on August 13, 2003. The residence was than purchased by the Plaintiffs’ Matthew Venema and Liza Squires (collectively “Plaintiffs”) in October 2004. Plaintiffs did not commence their suit against Moser until August 26, 2019. After Plaintiffs filed their complaint, Moser filed an answer contending Plaintiffs’ claims were barred by the Statute of Repose because over 12 years at passed since the date construction was completed and Plaintiffs’ complaint was filed. Moser filed a motion for judgment on the pleadings seeking a dismissal of all remaining counts in Plaintiffs’ complaint. Plaintiffs responded stating Moser had regularly made repairs to the home from 2004 until 2008 thus delaying the Statute of Repose. Moser replied arguing that the date the certificate of occupancy was granted is the date of completion for Statute of Repose purposes.

The Superior Court reviewed the trial court’s decision to determine if the ruling was based on a clear error of law. “A defendant in a construction defect case has the burden of proving that the Statute of Repose precludes liability.” In order to bar a plaintiff’s claim three elements must be met: “(1) what is supplied [by defendant] is an improvement to real property; (2) more that twelve years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party must be within the class which is protected by the statute.” In this appeal, the only element at issue was the second element. Specifically, whether the clock started tolling upon the issuance of the CO or upon completion of repairs.

The Superior Court affirmed the trial court’s ruling that the Plaintiffs’ claims are time barred stating a residence is unusable until a certificate of occupancy is granted. “The issuance of the certificate hinges on a satisfactory ‘final inspection’ showing that construction of the residence comports with the governing building codes.” Plaintiffs did not cite any statute or case supporting the idea that Moser’s repairs to the building delay the completion of the residence’s construction and toll the Statute of Repose. Rather, as the Supreme Court previously held that the Statute of Repose “generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.”  Therefore, the beginning of the tolling period was 2003 after the certificate of occupancy was granted and the trial court did not err in their decision.

Thanks to Erin Russell for her contribution to this article.  Should you have questions, contact <a href="mailto:mcare@wcmlaw.com">Matthew Care</a>.