in the Venema v. builder Moser, The Superior Court of Pennsylvania (“Superior Court”) affirmed the trial court’s decision to dismiss plaintiff’s complaint. The Supreme Court affirmed that the plaintiff’s claims were statute-barred by the 12-year Construction Defects Claims Retirement Act.
The affected premises in this case are located in Chester Springs, Pennsylvania and were constructed by Moser Builders (“Moser”) in 2003. On August 13, 2003, a certificate of habitability was issued for the house. The home was then purchased by plaintiffs’ Matthew Venema and Liza Squires (collectively, “Plaintiffs”) in October 2004. Plaintiffs did not commence their lawsuit against Moser until August 26, 2019. After the plaintiffs filed their complaint, Moser filed a response, alleging that the plaintiffs’ claims were statute-barred by the statute of dormancy because more than 12 years have passed since construction was completed and the plaintiffs’ complaint was filed . Moser filed a motion for judgment on the pleadings seeking a dismissal of all remaining charges in the plaintiffs’ lawsuit. Plaintiffs responded that Moser made periodic repairs to the home from 2004 to 2008, delaying the retirement statute. Moser responded, arguing that the date the occupancy certificate was issued was the date of completion for the purposes of the retirement statute.
The Superior Court reviewed the lower court’s decision to determine whether the judgment was based on a clear error of law. “A defendant in a construction defect case has the burden of proving that the Retirement Act excludes liability.” In order to dismiss a plaintiff’s claim, three elements must be met: “(1) what is delivered [by defendant] is an improvement of real estate; (2) more than twelve years have elapsed between the completion of the improvements to the property and the damage; and (3) the activity of the moving party must be within the class protected by law.” In this complaint, the only element at issue was the second element. Specifically, whether the clock started ringing when the CO was issued or after the repairs were completed.
The Supreme Court upheld the trial court’s decision that plaintiffs’ claims were barred that a dwelling was unusable until a certificate of occupancy was issued. “The issuance of the certificate is subject to a satisfactory ‘final inspection’ showing that the construction of the dwelling conforms to applicable building regulations.” Plaintiffs did not cite any statute or case to support the idea that Moser’s repairs to the building were delaying completion of the home and incriminating the retirement statute. Rather, as the Supreme Court has previously ruled, the Statute of Repose “may not generally be set aside, even in cases of extraordinary circumstances beyond a plaintiff’s control.” The toll period therefore began in 2003 after the occupancy certificate was issued and the Court of Appeal was not wrong in its decision.
Thanks to Erin Russell for contributing to this article.