Protecting Members, PA-DE ASLA Signs on to Statute of Repose Amicus Brief
The Pennsylvania Supreme Court is considering a case that challenges the validity of the Commonwealth’s Statute of Repose. In an effort to uphold the statute, which has specific implications for Landscape Architects and other design and construction professionals, PA-DE ASLA signed on to an Amicus Curiae (“friend of the court”) brief submitted in March for the PA Supreme Court’s consideration.
What is the Statute of Repose?
Pennsylvania’s construction Statute of Repose bars any civil action brought against any person who lawfully performs or furnishes the design, planning, supervision, or observation of construction or construction of improvements more than 12 years after the Substantial Completion of the construction.* The Statute of Repose is an absolute bar on claims; whereas, the Statute of Limitations (4 years for contractual claims and 2 years for negligence or tort based claims) limits the timeframe in which a lawsuit may be filed.
What’s In the Amicus Curiae Brief?
Participating organizations (American Institute of Architects, American Institute of Architects of Pennsylvania, American Council of Engineering Companies, American Council of Engineering Companies of Pennsylvania, Delaware Valley Association of Structural Engineers, Structural Engineers Association of Pennsylvania, Pennsylvania Society of Professional Engineers, Pennsylvania Society of Land Surveyors, and Pennsylvania-Delaware Chapter of the American Society of Landscape Architects) filed the Amicus Curiae brief in response to a plaintiff’s suit challenging the validity of the Statute of Repose and the definition of “lawfully performed.”
Essentially, the plaintiff’s argument was that the wording in the statute required all elements of the work performed to be 100% within the requirements of all federal, state, and local code and requirements. If the plaintiff’s arguments move forward, it would eviscerate the protections offered to Landscape Architects under the statute that states after 12 years no lawsuit can move forward for failure of an improvement to real property. Negating the Statute of Repose would require Landscape Architects, Engineers, and Architects to maintain professional insurance even through retirement, a type of insurance that is not offered by insurance firms. No licensed professional would want to use their seal as it would put them on the hook indefinitely.
The brief argued that the “lawfully performed” portion of the statute means that the person was authorized to do the work, and had the appropriate license to perform the work, not that the final work product is 100% within code.
What’s Next?
The attorneys involved will keep us posted on the rulings and any future developments. This issue is a priority for the Chapter and we will keep you posted as we learn of developments and opportunities for action.
*42 Pa.C.S.A § 5536(a); see also, SB No. 336 (proposing to shorten the period of repose); see also, Statutes of Repose: AIA National Compendium (comparing statutory language of each state).