Does time run against the king?
October 8, 2025
Publications
The Pennsylvania Supreme Court considers whether municipalities, counties, and other political subdivisions are subject to Pennsylvania’s statute of repose
Case overview
On October 7, 2025, the Pennsylvania Supreme Court heard oral argument in the Clearfield County v. Transystems Corporation, et al. case that was certified for appeal earlier this year.
In this case, Clearfield County discovered what it alleges is a major defect in the roof installation of the Clearfield County Jail (the roof deck was missing a specified bond beam). Construction on the jail was completed 44 years ago, around March 4, 1981, when the Certificate of Occupancy was issued, but the defects were only discovered recently when the county began a renovation project on the jail.
In a typical construction defect case, Pennsylvania’s 12-year statute of repose would indisputably bar any claim against the contractors and design professionals involved in the project 12 years after the date of completion. However, in this case, the county raised the doctrine of nullum tempus occurrit regi, or “no time runs against the king,” to argue that the statute of repose does not apply to bar this action brought by the county related to the alleged defect.
Broader significance
The case, which followed closely on the heels of Aloia v. Diamant, another case dealing with the statute of repose that was certified for appeal by the Pennsylvania Supreme Court earlier in the year, has garnered significant attention in the construction and design professional communities.
The outcome could have far-reaching implications for contractors and design professionals who work on public projects, potentially subjecting them to liability forever for defects related to such projects. In addition to creating uncertainty and discouraging interest in public projects, nullifying application of the statute of repose on public projects (here, in the context of municipalities, counties, and other political subdivisions) could make it nearly impossible for contractors and design professionals to get necessary insurance and other required coverages for these projects.
Key questions before the Court
The argument, held before all seven judges of the Commonwealth’s highest court, was animated and thought-provoking. Two questions emerged as central issues for the Court’s consideration.
First, did the project meet the second prong of the two-part test set out in 1939 by the Pennsylvania Supreme Court in City of Philadelphia v. Holmes Electric, which dictates when the courts will find that statutory time limitations do not run against municipalities, counties, and other political subdivisions?
That prong requires that the public owner prove that “the suit was brought to enforce an obligation imposed by law as distinguished from one arising out of an agreement that was voluntarily entered into by the political subdivision.” The county argued that, because it is constitutionally and statutorily required to set conditions for bail, it has an implied obligation imposed by law to house detainees, which, in this case, required it to build a jail. Further, it argued that the construction defendants had a duty imposed by law to ensure the safety of the jail. The construction defendants, on the other hand, argued that all obligations were voluntarily undertaken by the parties entering into a contract and were not, in fact, imposed by law.
Both sides recognized this question has been most often answered in favor of the king, i.e., school districts, when addressing application of the statutes of limitation in the context of asbestos cases. However, in those cases, the construction defendant argued, the courts never really addressed the second prong of Holmes, which is required to apply the nollum tempus doctrine.
In an interesting turn of events, the question turned into a which-came-first-the-chicken-or-the-egg question when the Court began to ask: Do we even get to that question of whether the second prong of Holmes applies if we decide that the doctrine of nollum tempus doesn’t apply to the statute of repose?
A key related question for the Court is which policy trumps: a statutorily enacted policy (the statute of repose) or a court-created policy (nollum tempus). Counsel for Clearfield County argued that the doctrine of nollum tempus has been around longer than the statute of repose and should be applied in this case to allow the county to proceed against the construction defendants. The construction defendants, in turn, argued that the statute of repose is a legislative decision that effectively extinguishes any cause of action the county might have related to the design and construction of the jail and, therefore, obliterates any possible application of the doctrine to an action subject to the statute.
What happens next
It is never decided in argument how the Court might rule. Any lawyer who has been in this position knows that you may think a ruling is going one way based on the questioning, only to see the opinion go the other way.
In this case, however, one thing remained consistent for both sides, that counsel were arguing before a “hot bench.” The Justices were highly engaged and asked difficult and thought-provoking questions which point to what is sure to be an interesting and thoughtful opinion.
Now one thing remains consistent amongst construction lawyers, contractors, and design professionals: we wait with bated breath and fingers crossed for the Court’s decision which, no matter how it comes out, promises to be impactful in our industry.
