The Subrogation Strategist

In Clearfield County v. Transystems Corp., No. 10 WAP 2025, 2026 Pa. LEXIS 774, Clearfield County (the County) filed suit against Transystems Corporation (Transystems Corp.) based on architectural and engineering plans for a jail completed in 1977. Transystems Corp. filed an Answer that asserted a defense that the trial court lacked jurisdiction because, pursuant to 42 Pa.C.S. § 5536, the County did not file its complaint within 12 years of completion of the jail. The County filed preliminary objections contending that, among other things, the doctrine of nullum tempus occurrit regi (nullem tempus) precluded the statute of repose from operating as a defense to its claims. The court agreed with the defendant and held that the statute of repose barred the County’s suit.

If the nullum tempus doctrine applies, a Pennsylvania defendant will have to defend a suit brought by the state or its political subdivisions - otherwise barred by the statute of limitations - because of the common law doctrine of, which means: no time runs against the king. Nullum tempus operates as an exception to the statute of limitations that the Commonwealth justifies by the public policy of preserving public rights and funds from public officials delaying timely filing suit. The County argued that the nullum tempus doctrine should also apply to the statute of repose.

A statute of repose puts an outer limit on the right to bring a civil action, measured not when the cause of action accrues (generally when the injury is discovered), but when the defendant commits the last culpable act. Thus, a statute of repose bars any suit brought after a specified time, even if the period runs before the plaintiff’s injury. 

The Supreme Court of Pennsylvania declined the County’s request to extend the doctrine of nullum tempus to the Section 5536 statute of repose. As the court concluded, nullum tempus did not permit the County to avoid the Section 5536’s statute of repose because it eliminated and abolished the right of the County to bring suit 12 years after the construction project was done. Moreover, allowing the County to invoke nullum tempus to avoid the repose period undermined the legislative judgment evidenced by Section 5536:  that public policy was best served by eliminating the indeterminate potential liability of construction industry professionals after a fixed 12-year period.

Based on the holding in Clearfield County, subrogation professionals who represent government entities in Pennsylvania, should be aware that if suit against a defendant is barred by Section 5536’s statute of repose, they cannot overcome the statute by relying on the nullum tempus doctrine.