Repairs Performed Years After Completion Do Not Toll Statute Of Repose

• Jurisdiction: Pennsylvania,United States
• Law Firm: Wood Smith Henning & Berman LLP
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning, Real Estate
• Author: Mr Andrew Kessler
• Published date: 30 January 2023

In Venema v. Moser Builders, Inc., 2370 EDA 2021 (Pa. Super. Ct. Aug. 29, 2022), the Superior Court held that the Statute of Repose was not tolled by repairs made several years after the certificate of occupancy was issued. Homeowners are not entitled to unilaterally dictate an extended window to file suit because a builder complies with the agreement in good faith and makes repairs years after the original purchase date.

Factual Background

In 2003, Moser Builders, Inc. built the subject home which was located in Chester Springs, Pennsylvania. A Certificate of Occupancy was issued on August 13, 2003 and in October 2004, the house was purchased by Appellants from the original third party owners.

In August 2019, Appellants filed a Complaint against Moser alleging construction defects and that despite several inspections and repairs by Moser during the period from 2004 to 2008, the defects were never properly remedied. Due to this ongoing failure to remedy the defective conditions, Appellants claimed that there was substantial water intrusion into the home, which caused significant damage.

Moser argued that Appellants' case was barred by the Statute of Repose because in excess of twelve years had passed from the construction completion date. 42 Pa. C.A. '5536(a) states, "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 twelve years after completion of construction." Thus, Moser filed a Motion for Judgment on the Pleadings, seeking dismissal of the action. Appellants responded by asserting that as ongoing repairs took place from 2004 to 2008, these repairs should effectively suspend the running of the clock on the Statute of Repose and that the claim was therefore filed in a timely fashion.

Moser took the position that, as a matter of law, the Statute of Repose began to run on the date the Certificate of Occupancy was issued. The trial court agreed with Moser and granted Moser's Motion for Judgment on the Pleadings. The trial court determined that the construction of the house was completed in 2003 and that the Appellants had failed to raise a genuine issue of material fact as to the validity of that completion date.

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