When an object or a person is at rest or in a state of stillness it or he/she is said to be in repose. If one were to take a drive down Cameron Street in Harrisburg, by what was once the thriving business known as Henry’s Tire Shop, what you would see is much of what used to be part of the McFarland Apartments parking lot, complete with a formerly parked car, piled up and lying in repose in the tire shop. It was May 5 of 2016 when a catastrophic collapse of the parking lot perched above Henry’s, was the beginning of the end of Henry’s business and the beginning of several lawsuits. While Henry’s, the owners and former owners of the McFarland property, PennDot, engineering firms, the City of Harrisburg, contractors and a host of insurance companies have been duking it out in Court over who is responsible for the collapse, who, if anyone, should compensate Henry’s, and who should remove the rubble, the site remains essentially frozen in time.
There are currently 16 named Defendants and Additional Defendants in the lawsuit. One of the Defendants, the former owner of the McFarland Apartments, was joined into the lawsuit by one of the Defendant contractors. In turn the former owner joined another contractor, Lobar Associates, Inc., which it had hired to perform some renovation work on the property relating to the demolition and conversion of the former McFarland Building into what is now apartments. Lobar’s work was performed in 1996 and 1997. While the passage of time and the years of relentless gravity were not kind to Henry’s, it is precisely the passage of time that, at least in the legal sense, has saved Lobar.
While Lobar asserted several defenses to its joinder in this lawsuit, it was the little known Statute of Repose which proved to be just the right tool for Lobar when employed by Lobar’s attorneys.
In Pennsylvania, as in all states, there are statutes governing the time in which an injured party (plaintiff) must commence a lawsuit. A statute of limitations, bars any action that has not been commenced within the specified number of years from the plaintiff’s injury or when the plaintiff’s claim arose, whether the claim is based on a tort or a breach of contract. This statutory deadline can be judicially extended (or tolled) if, for example, the plaintiff can successfully argue that his claim could not have been discovered until sometime after the tort or breach occurred. In contrast, the Statute of Repose (codified at 42 Pa. C.S. §5536) essentially bars any lawsuit brought against contractors (as well as those involved in planning, designing or supervising a construction), which is commenced more than 12 years after the completion of the construction at issue in the lawsuit. The Statute of Repose differs from a statute of limitations in that it effectively extinguishes a plaintiff’s cause of action, even if the plaintiff did not suffer any harm attributable to the defendant prior to the expiration of the Statute of Repose.
Because the construction on the McFarland property at issue was completed in 1997, and the legal action joining Lobar was not commenced until 21 years later, the Court dismissed Lobar from the lawsuit.
Contractors operate in an increasingly complex world where they are faced with many unique, and potentially perilous legal issues. We at Reager & Adler have been serving contractors and the construction industry for 40 years, and we look forward to assisting you with whatever contract or legal issues you may encounter.