Johnson v. Toll Bros.
| Docket Number | 2119 EDA 2022,J-A17015-23 |
| Decision Date | 31 August 2023 |
| Parties | LEE R. JOHNSON, JR. AND VICTORIA H. JOHNSON, H/W Appellants v. TOLL BROTHERS, INC., TOLL BROS., INC., TOLL PA VI, L.P., TOLL PA GP CORP., TOLL ARCHITECTURE, INC., AND TOLL ARCHITECTURE I P.A. ANDERSEN WINDOWS, INC., MURTAUGH BROTHERS, INC., M A CARDY CONSTRUCTION, INC., MACK-DONOHOE CONTRACTORS, INC. |
| Court | Pennsylvania Superior Court |
In this construction defect case, Lee R. Johnson, Jr. and Victoria H Johnson, H/W (the Johnsons) appeal an order of the Court of Common Pleas of Chester County (trial court) granting summary judgment in favor of Toll Brothers, Inc., Toll Bros., Inc., Toll PA GP Corp., Toll Architecture, Inc. and Toll Architecture I, P.A. (Toll) and dismissing the Johnsons' claims against those parties on the ground that their action was not commenced within the time period set forth in 42 Pa.C.S. 5536 (the Statute of Repose). The Johnsons now contend that the trial court erred in applying the Statute of Repose because Toll's violation of building codes had prevented Toll from "lawfully" constructing the subject residence. The Johnsons argue alternatively that even if the Statute of Repose applies, Toll's conduct caused damages in the tenth, eleventh and twelfth year after construction, qualifying the Johnsons for an extension of the Statute of Repose and making their claims timely filed. We affirm.[1]
The subject residence (the home) is located at 106 Marigold Court, Chester Springs, Pennsylvania. Toll designed the home, obtained a building permit authorizing the home's construction, and completed construction of the home on October 18, 2004. A certificate of occupancy was issued on that same date, and the home was then immediately conveyed to its original purchasers.
The original purchasers later sold the home to the second purchasers who, in turn, sold the home to the Johnsons on September 13, 2016. Over 13 years after the certificate of occupancy was issued, on August 21, 2018, the Johnsons commenced this case by filing a writ of summons. They filed a complaint against Toll in 2020 asserting a violation of the Unfair Trade Practices and Consumer Protection Law 73 Pa.C.S. §§ 201-1, et seq. (count I); civil conspiracy (count II); fraud (count III) and negligence (count IV). These claims were based on the Johnsons' allegations that Toll had negligently and in violation of applicable building codes installed door frames, brick façade and windows[2] which allowed significant water intrusion into the home, causing continuous damages for at least five years up to and including the year in which their action was commenced. The Johnsons' claims were supported by the testimony of experts who had opined that the home was constructed in violation of building codes and regulations resulting in continuous damage beginning in 2012 at the latest.
In their amended complaint filed on April 30, 2020, the Johnsons acknowledged that since the home's construction was completed on or around October 18, 2004, the Statute of Repose would require their suit to be filed within 12 years of that date, by October 18, 2016, which was over a year prior to the date when their action was brought. They asserted, however, that since their "injury" was ongoing, occurring in "the tenth, eleventh, and twelfth year following the completion of construction," they qualified for an exception to the Statute of Repose which extends the filing period by two years, making their suit timely filed within 14 years from the completion of the home's construction.
For reasons not germane to this appeal, the trial court sustained Toll's preliminary objections as to count II (civil conspiracy) of the Johnsons' amended complaint, resulting in dismissal of that claim with prejudice. On July 12, 2022, for reasons that are germane, the trial court granted Toll's motion for summary judgment and dismissed counts I, II and IV of the amended complaint. See Memorandum and Order, 7/13/2022, at 6. The trial court agreed with Toll's position that the Johnsons' suit was barred by the Statute of Repose, as over 12 years had elapsed between the completion of the home's construction and the commencement of the action. The trial court did not expressly consider the Johnsons' alternative argument that they qualified for a two-year extension of the Statute of Repose.
The Johnsons timely appealed. In their brief, they argue that the Statute of Repose is inapplicable because Toll's alleged building code violations made the construction of the home "unlawful." They also argue that even if the Statute of Repose applied, they would have qualified for a two-year extension to file their claims because they sustained injuries in the final three years of the filing window.
Toll counters that construction is "lawful" as long as it is authorized by the governing body with jurisdiction over the project, regardless of any technical violations of the applicable building code. As to the exception to the Statute of Repose, Toll argues that it does not apply because all of the alleged injuries sustained by the Johnsons were present at the time of construction.
The central issue in this case is whether the trial court properly construed the term "lawful" when applying the Statute of Repose and barring the Johnsons' claims.[3]
"Statutes of repose differ from statutes of limitation in that statutes of repose potentially bar a plaintiff's suit before the cause of action arises, whereas statutes of limitation limit the time in which a plaintiff may bring suit after the cause of action accrues." McConnaughey v. Building Components, Inc., 637 A.2d 1331, 1332 (Pa. 1994). Because statutes of repose are jurisdictional in nature, courts must determine their scope as a question of law. See Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 15 (Pa. 2015); see also Calabretta v. Guidi Homes, Inc., 241 A.3d 436, 442 (Pa. Super. 2020) ("[S]tatutory interpretation of the term 'lawfully' as used in [the Statute of Repose] raises a legal question[.]").[4]
The provision at issue in the present case concerns construction projects, and it reads as follows:
[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 12 years after completion of construction of such improvement to recover damages[.]
42 Pa.C.S. § 5536(a) (emphasis added).
A party asserting a Statute of Repose defense must, therefore, show that (1) the project involved a lawful improvement to real property; (2) over 12 years have elapsed from the completion of the improvement to commencement of the action; and (3) the party is in the statute's protected class. See Noll by Noll v. Harrisburg Area YMCA, 643 A.2d 81, 84 (Pa. 1994); McConnaughey v. Building Components, Inc., 637 A.2d 1331, 1333 (Pa. 1994). The "completion of the construction of such improvement" marks the "commencement of the repose period at the point when third parties are first exposed to defects in design, planning, or construction." Catanzaro v. Wasco Products., Inc., 489 A.2d 262, 266 (Pa. Super. 1985) (citing Patraka v. Armco Steel Co., 495 F.Supp. 1013, 1019 (M.D. Pa. 1980)).
The disputed term "lawfully" is undefined in the Statute of Repose and the parties to this appeal have adopted contrary interpretations.[5] "When construing statutory provisions, this [C]ourt is guided by the Statutory Construction Act of 1972 [1 Pa.C.S. §§ 1501-1991]." Guinn v. Alburtis Fire Co., 614 A.2d 218, 220 (Pa. 1991). "Our paramount interpretative task is to give effect to the intent of our General Assembly in enacting the particular legislation under review." Egan v. Egan, 125 A.3d 792, 795 (Pa. Super. 2015) (internal alteration and citation omitted).
"[T]he best indication of the General Assembly's intent in enacting a statute may be found in its plain language[.]" Watts v. Manheim Twp. Sch. Dist., 121 A.3d 964, 979 (Pa. Super. 2015). Words and phrases in statutes must be construed "according to rules of grammar and according to their common and approved usage[.]" 1 Pa.C.S. § 1903(a). "One way to ascertain the plain meaning and ordinary usage of terms is by reference to a dictionary definition." In re Beyer, 115 A.3d 835, 839 (Pa. 2015) (citation omitted).[6]
The Statute of Repose was enacted in 1976.[7] The most recent version of Black's Law Dictionary at the time of that enactment defined "lawful" as "warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law." Black's Law Dictionary, 1032 (4th ed. 1968). Elaborating further, the Note of that definition explained that "lawful" implies an act "that is authorized, sanctioned, or at any rate not forbidden, by law." Id. The Note then compared that latter definition to the term "legal" which implies that an act "is done or performed in accordance with the forms and usages of law, or in a technical manner[,]" going no "further than to denote compliance, with positive, technical, or formal rules[.]" Id.
A number of decisions have wrestled with the meaning of "lawful" (or "lawfully") in the context of a Statute of Repose and distinguished "lawful" and "legal" in the same manner that Black's Law Dictionary did. Most notably, in Branton v. Nicholas Meat, LLC, 159 A.3d 540 (Pa. Super. 2017), this Court examined a Statute of Repose in the Pennsylvania Right to Farm Act...
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