Clearfield County, PA v. Transystems Corporation

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clearfield County, Pennsylvania, :
Appellant :
:
v. :
:
Transystems Corporation, :
successor to L. Robert Kimball and :
Associates, Inc., Leonard S. Fiore, Inc., : No. 193 C.D. 2024
and Showalter Masonry, Inc. : Argued: October 8, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: November 1, 2024
Clearfield County, Pennsylvania (County), appeals from the Clearfield
County Common Pleas Court’s (trial court) February 15, 2024 order sustaining the
preliminary objections of Transystems Corporation (Transystems), successor to L.
Robert Kimball and Associates, Inc. (Kimball), Leonard S. Fiore, Inc. (Fiore), and
Showalter Masonry, Inc. (Showalter) (collectively, Defendants) dismissing the
County’s civil complaint (Complaint) for lack of jurisdiction, and holding that the
County’s construction of the County’s jail (Jail) in the early 1980s was the
performance of a governmental function and in exercise of the County’s
governmental capacity. The County presents three issues for this Court’s review:
(1) whether the trial court erred by conducting an evidentiary hearing to resolve
factual disputes raised by Defendants’ jurisdictional objections and relying on facts
not in the Complaint to sustain Defendants’ preliminary objections; (2) whether the
trial court erred by ruling that for purposes of Section 5536 of the Judicial Code, 42
Pa.C.S. § 5536 (Section 5536, Statute of Repose), the Jail construction was
completed in 1981; and (3) whether the trial court erred by finding that the County
could not overcome the Statute of Repose by invoking the doctrine of nullum tempus
occurrit regi1 (nullum tempus). After review, this Court affirms.
The County contracted for the Jail’s construction in approximately
1977. The County retained Kimball to provide architectural and engineering
services, Fiore to act as general contractor, and Showalter to provide masonry
contracting services for the project. In July 2021, the County executed a contract
with ABM Building Solutions (ABM) to oversee the $9 million Jail renovation
project. During the preparatory work for the renovation project, ABM discovered
that the Jail’s roof was not connected to its masonry walls. Instead, the roof was
floating on top of the one-story building because it had not been fastened to its walls
during the original construction. To remedy this defect, the County was required to
spend nearly $4 million more than the $9 million originally estimated for the Jail’s
renovation.
On January 6, 2023, the County filed the Complaint against
Defendants. Defendants each filed preliminary objections alleging, inter alia, that
the trial court lacked jurisdiction because the Complaint was not filed within 12 years
from the completion of the Jail’s original construction, as Section 5536 requires.2
1
“[T]he doctrine nullum tempus occurrit regi, meaning ‘[t]ime does not run against the
king,’ . . . has its roots in the prerogative of the Crown. [Commonwealth v.] J.W. Bishop & Co.,
439 A.2d [101,] 103 [(Pa. 1981)].” City of Phila. v. Galdo, 217 A.3d 811, 820 (Pa. 2019).
2
Section 5536, pertaining to construction projects, provides:
(a) General rule. -- Except as provided in subsection (b), 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
2
The County responded to the preliminary objections by asserting that the doctrine of
nullum tempus3 rendered the Statute of Repose ineffective in the instant matter.
On April 12, 2023, the trial court scheduled argument on Defendants’
preliminary objections. On April 28, 2023, the trial court issued an order observing
that since all Defendants had filed preliminary objections based on the Statute of
Repose thereby raising a jurisdictional issue, at the hearing the parties were to “be
prepared to offer testimony or other evidence to the [trial c]ourt concerning the date
completion of construction of such improvement to recover
damages for:
(1) Any deficiency in the design, planning, supervision or
observation of construction or construction of the improvement.
....
(b) Exceptions.--
....
(2) The limitation prescribed by subsection (a) shall not be
asserted by way of defense by any person in actual possession or
control, as owner, tenant or otherwise, of such an improvement
at the time any deficiency in such an improvement constitutes the
proximate cause of the injury or wrongful death for which it is
proposed to commence an action or proceeding.
(c) No extension of limitations. -- This section shall not extend the
period within which any civil action or proceeding may be
commenced under any provision of law.
42 Pa.C.S. § 5536 (a)(1), (b)(2), (c) (text emphasis added).
3
This Court has explained:
The doctrine of nullum tempus permits a government agency “to
circumvent the applicable statute of limitations.” Duquesne Light
Co[.] v. Woodland Hills Sch[.] Dist[.], 700 A.2d 1038, 1051 (Pa.
Cmwlth. 1997). To invoke nullum tempus, the government must be
enforcing a right that is strictly public and one imposed by law. Id.Where the government agency “seeks to enforce purely contractual
rights where [it] was not required to enter into the contract[,]”
nullum tempus cannot be invoked. T[wp.] of Salem v. Miller Penn
Dev[.], LLC, 142 A.3d 912, 918 (Pa. Cmwlth. 2016).
Allegheny Intermediate Unit v. E. Allegheny Sch. Dist., 203 A.3d 371, 378 (Pa. Cmwlth. 2019).
3
when [the Statute of Repose] began to run[.]” Reproduced Record (R.R.) at 349a.
Thereafter, the parties conducted discovery. See R.R. 202a-203a.
On November 14, 2023, the trial court held the hearing regarding the
timeliness issue raised in Defendants’ preliminary objections. John Sobel, Chairman
of the County Board of Commissioners (Commissioner Sobel), testified at the
hearing that the Jail’s construction was completed in the early 1980s. According to
Commissioner Sobel, inmates and staff have occupied the Jail since 1981. See R.R.
at 205a. Commissioner Sobel also authenticated an occupancy permit for the Jail
that the Pennsylvania Department of Labor and Industry (L&I) issued on March 4,
1981 (Occupancy Permit). R.R. at 204a-205a. At Defendants’ request, the trial
court admitted the Occupancy Permit into evidence. See R.R. at 205a.
On February 14, 2024, the trial court sustained Defendants’ preliminary
objections, concluding that the Jail’s construction had been completed in 1981 and,
“in the early 1980[]s[,] was the performance of a governmental function and in
exercise of [the County’s] governmental capacity.” R.R. at 347a. The County
appealed to this Court.4
The County first contends that the trial court erred by conducting an
evidentiary hearing and relying on evidence outside the Complaint’s four corners to
decide the preliminary objections. Specifically, the County argues that the trial court
4
Our review of a trial court’s order sustaining preliminary objections
is limited to determining whether the trial court erred as a matter of
law or abused its discretion. In order for a trial court to sustain
preliminary objections, it must appear with certainty the law will not
allow recovery; any doubt must be resolved in favor of the non-
moving party. All well-pled facts in the complaint, and reasonable
inferences arising from those facts, are accepted as true. However,
unwarranted inferences, conclusions of law, argumentative
allegations or expressions of opinion need not be accepted.
Kull v. Guisse, 81 A.3d 148, 154 n.3 (Pa. Cmwlth. 2013) (emphasis added; citations omitted).
4
“went beyond the facts alleged in the [C]omplaint and ruled based upon . . . a
speaking demurrer.” County Br. at 13. Further, “[t]he trial court . . . went beyond
the well-pleaded material facts set forth in [the C]omplaint . . . relying upon the
issuance of an occupancy permit that is not referenced in the Complaint and that was
introduced into evidence by Defendants at a hearing regarding the preliminary
objections.” Id.Pennsylvania Rule of Civil Procedure (Civil Rule) 1028 provides, in
relevant part:
(a) Preliminary objections may be filed by any party to any
pleading and are limited to the following grounds:
(1) lack of jurisdiction over the subject matter of the
action or the person of the defendant, improper venue
or improper form or service of a writ of summons or a
complaint;
....
(4) legal insufficiency of a pleading (demurrer);
Note: The defense of the bar of a statute of frauds or statute
of limitations can be asserted only in a responsive pleading
as new matter under [Civil] Rule 1030.
....
(c)(1) A party may file an amended pleading as of course
within [20] days after service of a copy of preliminary
objections. If a party has filed an amended pleading as of
course, the preliminary objections to the original pleading
shall be deemed moot.
(2) The court shall determine promptly all preliminary
objections. If an issue of fact is raised, the court shall
consider evidence by depositions or otherwise.
Note: Preliminary objections raising an issue under
subdivision (a)(1), (5), (6), (7) or (8) cannot be
determined from facts of record. In such a case, the
preliminary objections must be endorsed with a notice
5
to plead or no response will be required under [Civil]
Rule 1029(d) [(relating to effect of denials)].
However, preliminary objections raising an issue under
subdivision (a)(2), (3) or (4) may be determined from facts
of record so that further evidence is not required.
Pa.R.Civ.P. 1028 (a)(1)(4), (c)(1)(2), Notes (emphasis added).
Notably, the preliminary objections pertaining to Section 5536 are not
demurrers as referenced in Civil Rule 1028(a)(4), but rather are preliminary
objections referred to in Civil Rule 1028(a)(1) pertaining to “lack of jurisdiction over
the subject matter of the action or the person of the defendant[.]” Pa.R.Civ.P.
1028(a)(1). As such, pursuant to Civil Rule 1028(c) and the Note thereto, the trial
court was permitted to consider additional evidence in ruling on that preliminary
objection. For these reasons, the trial court did not err by conducting an evidentiary
hearing to resolve factual disputes raised by Defendants’ jurisdictional objections
and relying on evidence presented at the hearing to sustain Defendants’ preliminary
objections.
The County next argues that the trial court erred by ruling that, for
purposes of Section 5536, the Jail’s construction was completed in 1981. The
County contends that, rather than accepting the facts as pled in the Complaint that
the Jail was never completed, the trial court improperly considered and accepted
extraneous evidence, including the Occupancy Permit,5 that contradicted those
alleged facts.
Contrary to the County’s assertion, the Jail’s completion date is not
simply a factual question for which the allegations in the Complaint must be
5
This Court observes that the Occupancy Permit was included in the documents the County
produced in response to discovery requests. The Occupancy Permit, along with the other
documents the County produced in response thereto, was admitted into evidence without objection.
See R.R. at 203a-205a.
6
accepted.6 Rather, Pennsylvania Courts have defined “completion” as used in
Section 5536(a). 42 Pa.C.S. § 5536(a). Specifically, the Pennsylvania Supreme
Court has held that “[t]he [12-]year period begins to run when the entire construction
project is so completed that it can be used by the general public.” Noll by Noll v.
Harrisburg Area YMCA, 643 A.2d 81, 84 (Pa. 1994) (emphasis added). The
Pennsylvania Superior Court has ruled that “[t]he ‘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 Prod[s.], Inc., . . . 489 A.2d 262, 266 ([Pa.
Super.] 1985).” Johnson v. Toll Bros., Inc., 302 A.3d 1231, 1235 (Pa. Super. 2023)
(emphasis added). Because a determination of when a project is completed is a
mixed question of law and fact, the trial court was not bound by the allegations in
the Complaint that the Jail was never completed.
The County also complains that the trial court did not have a legal or
factual basis to conclude that the Occupancy Permit’s issuance indicated that the
Jail’s construction had been completed. See County Br. at 16. Importantly, the
Occupancy Permit’s issuance was only one factor in the trial court’s determination.
Commissioner Sobel testified that the Jail had been employing staff and
housing prisoners since 1981. See R.R. at 205a. The trial court found:
[T]he evidence conclusively establishes that the Jail’s
construction was completed in 1981. [The Occupancy
Permit] was issued by [L&I] on March 4, 1981[,] and
prisoners were being housed there that same year. The
instant lawsuit was commenced in 2023 - a lapse of 42
years since completion.
6
The County constructs a detailed statutory construction argument relying, in part, on
dictionary definitions to define the term completion. The County ignores case law that has directly
defined the term as used in Section 5536.
7
R.R. at 329a (emphasis added). Based on Commissioner Sobel’s testimony
regarding the date when the Jail’s use began, the trial court could reasonably
conclude that “the entire construction project [was] so completed [in 1981] that it
c[ould] be used by the general public[,]” Noll, 643 A.2d at 84, and in 1981, “third
parties [were] first exposed to defects in design, planning, or construction [at the
Jail].” Johnson, 302 A.3d at 1235 (quoting Catanzaro, 489 A.2d at 266).
Accordingly, the trial court did not err by concluding that, for purposes of Section
5536, the Jail’s construction had been completed in 1981.
Additionally, the County asserts that the trial court erred by finding that
the County could not overcome the Statute of Repose by invoking the doctrine of
nullum tempus.
This Court has explained that nullum tempus applies to circumvent
applicable statutes of limitations. See Allegheny Intermediate Unit v. E. Allegheny
Sch. Dist., 203 A.3d 371, 378 (Pa. Cmwlth. 2019).
The Pennsylvania Supreme Court has described:
“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. B[ldg.]
Components, Inc., . . . 637 A.2d 1331, 1332 n.1 ([Pa.]
1994). Because it eliminates a plaintiff’s cause of action
“12 years after completion of construction of [an
improvement to real property],” regardless of when the
plaintiff’s injury occurs, both Pennsylvania and federal
courts have consistently held that [Section 5536] is a
statute of repose. See, e.g., Noll . . . , . . . 643 A.2d [at] 84
. . . (“Section 5536 is a statute of repose, rather than a
statute of limitations. . . . As a statute of repose, Section
5536 does not merely bar a party’s right to a remedy as a
statute of limitations does, but it completely abolishes and
eliminates the cause of action. . . .”); Misitis v. Steel City
Piping Co., . . . 272 A.2d 883, 885 ([Pa.] 1971) (The Act
of 1965, the predecessor to [Section 5536], “completely
8
eliminates all causes of action arising out of negligence in
construction or design which occurred more than [12]
years before the accident. . . .”); Mitchell v. United
Elevator Co., Inc., . . . 434 A.2d 1243, 1249 ([Pa. Super.]
1981) (“The Act of 1965 . . . does not merely bar a
litigant’s right to a remedy, as a statute of limitations does,
but the Act [of 1965] completely abolishes and eliminates
the cause of action itself. By eliminating a cause of action,
the Act of 1965 is a statute of repose. . . .”); Altoona Area
Sch[.] Dist[.] v. Campbell, . . . 618 A.2d 1129, 1134 (Pa.
Cmwlth. 1992) (“Section 5536 is couched in the language
of a statute of repose, rather than a statute of limitation[s],
because it contains words describing a definitely
established event which commences the statutorily
determined period of 12 years. . . .”); Luzadder v.
Despatch Oven Co[.], 834 F.2d 355, 358 (3d Cir. 1987)
(“[Section] 5536, which bars actions not brought within
[12] years of the making of the improvement to real
property, is drafted not as a statute of limitations but as a
statute of repose. . . .”). We see no reason to deviate from
this well-established precedent. Accordingly, we hold that
[Section] 5536 is a statute of repose, not a statute of
limitations.
Vargo v. Koppers Co., Inc., Eng’g & Constr. Div., 715 A.2d 423, 425-26 (Pa. 1998)
(footnotes omitted).
“The doctrine of nullum tempus . . . generally provides that
statutes of limitations do not bar actions brought by a state
or its agencies. ‘Under the doctrine of nullum tempus,
statutes of limitations are not applicable to actions brought
by the Commonwealth or its agencies unless a statute
expressly so provides.’ (Citations omitted.) Local
governments are political subdivisions of a state and
are entitled to assert the nullum tempus privilege under
only limited circumstances. In order for nullum
tempus to apply, a municipality’s claims must (1) accrue
to the municipality in its governmental capacity and (2)
seek to enforce an obligation imposed by law as
distinguished from one arising out of an agreement
voluntarily entered into by the defendant.” City of
Phila[.] v. Lead Indus[.] Ass[’n], Inc., 994 F.2d 112, 118-
119 (3d Cir. 1993).
9
Del. Cnty. v. First Union Corp., 929 A.2d 1258, 1261 (Pa. Cmwlth. 2007), aff’d, 992
A.2d 112 (Pa. 2010) (bold emphasis added).
The County has cited no authority explicitly supporting its assertion
that the doctrine of nullum tempus applies to the Statute of Repose in the same way
as it applies to statutes of limitations. It cites Altoona Area School District v.
Campbell, 618 A.2d 1129 (Pa. Cmwlth. 1992), claiming that the implication of this
Court’s holding in Campbell “is that if the school district had sought to vindicate
obligations imposed by law, rather than obligations arising from its own voluntary
transactions, the doctrine of nullum tempus would have defeated the 12-year
limitation of the [S]tatute of [R]epose.” County Br. at 21-22.
In Campbell, the school district brought a breach of contract action
against architects and a contractor who had built a library 18 years earlier. The
defendants sought summary judgment based on Section 5536 and on Section 5523
of the Judicial Code, 42 Pa.C.S. § 5523.7 The trial court denied summary judgment.
On appeal this Court stated:
[I]n the present case, [the school d]istrict was not obligated
by law to enter into a contract to construct the library, but
instead, entered into the contract voluntarily as it was
authorized to do under The Library Code.[8] The present
case is, therefore, distinguishable from two recent
7
Section 5523 of the Judicial Code, entitled “[o]ne year limitation,” specifies:
The following actions and proceedings must be commenced within
one year:
(1) An action for libel, slander[,] or invasion of privacy.
(2) An action upon a bond given as security by a party in any matter,
except a bond given by a condemnor in an eminent domain
proceeding.
(3) An action upon any payment or performance bond.
42 Pa.C.S. § 5523.
8
The former Library Code, Act of June 14, 1961, P.L. 324, as amended, 24 P.S. § 4401-
4428, was repealed by Section 3(2)(i) of the Act of November 1, 2012, P.L. 1683.
10
Superior Court cases, Stroudsburg Area School District v.
R.K.R. Associates, . . . 611 A.2d 1276 ([Pa. Super.] 1992),
and Mt. Lebanon School District v. W.R. Grace & Co., . . .
607 A.2d 756 ([Pa. Super.] 1992), which held that a school
district was entitled to invoke the doctrine of nullum
tempus to defeat the applicable statutes of limitations
because it was asserting claims arising out of the
constitutionally and statutorily mandated duty of school
districts to construct and maintain schools for the children
of the Commonwealth.
Campbell, 618 A.2d at 1132-33. The Campbell Court further observed:
[T]he [d]istrict, in contracting to build the library, was not
acting in accordance with obligations imposed by law, but
was, rather, voluntarily entering into an agreement under
the enabling statutes of The Library Code. Therefore, in
bringing the action against [the a]ppellants, [the d]istrict
was not seeking to enforce and vindicate obligations
imposed by law, but was, rather, seeking to enforce and
vindicate obligations arising from its own voluntary
transactions. Consequently, [the d]istrict cannot properly
invoke the doctrine of nullum tempus to defeat the 12[-
]year limitation contained in [S]ection 5536 or the [1-]year
limitation contained in [S]ection 5523 [of the Judicial
Code].
Campbell, 618 A.2d at 1134. The Campbell Court concluded:
[B]ecause [S]ection 5536 is a statute of repose, the running
of the 12[-]year period of limitation commenced when
construction of the marble facade was completed in May
of 1969. Therefore, [the d]istrict’s cause of action against
[the a]rchitects, [c]ontractor and [s]ubcontractor for any
deficiency in the design, planning, supervision or
observation of construction or construction of the marble
facade, or injury to the facade, has been completely
eliminated because it was brought over 18 years after the
completion of the facade.[9]
9
In contrast, with respect to summary judgment under Section 5523 of the Judicial Code,
the Campbell Court held:
11
Id. at 1134-35 (citation omitted).
Assuming, arguendo, that the doctrine of nullum tempus did apply to
statutes of repose,10 in order for the doctrine to apply in this case, the County would
However, the cause of action against [c]ontractor and [s]urety on the
performance bond has not been completely eliminated because
[S]ection 5523 [of the Judicial Code] is a statute of limitations, not
a statute of repose, and is thus subject to the discovery rule. The
discovery rule tolls the running of a statute of limitation until the
plaintiff knows or reasonably should know that an injury has
occurred.
Campbell, 618 A.2d at 1135 (citations omitted).
10
In Belle Vernon Area School District v. Tremco Inc., 2023 U.S. Dist. LEXIS 145001,
*11-14, 2023 WL 5337286 (W.D. Pa. 2023), the U.S. District Court for the Western District of
Pennsylvania rejected the application of nullum tempus to Section 5536, explaining:
As a law review article on the topic has noted: “Courts that fail to
account for the distinction between statutes of limitation and repose
do so because they fail to look deeper into the policies behind the
differing statutes.” Joseph Mack, Nullum Tempus: Governmental
Immunity to Statutes of Limitation, Laches, and Statutes of Repose,
73 Def. Couns. J. 180, 194 (2006). Further[,]
[n]ullum tempus excuses governmental actors on the
basis of public policies that are undermined when
applied to statutes of repose. The first policy
argument for nullum tempus, that governmental
actors are sometimes too busy looking after the
welfare of the state to bring suit in time, is only a
legitimate excuse when the time limitation is
contingent on knowing delay by the plaintiff. This
policy argument is sound when applied to immunity
from statutes of limitation and laches because those
doctrines require that delay before they serve to
protect defendants. However, where statutes of
limitation under the discovery rule and laches will
only protect the defendant’s interests when there is
delay by the plaintiff after gaining knowledge of the
injury, statutes of repose can bar a claim even before
the victim knows they have been injured. Since
statutes of repose offer no exceptions for good
12
excuses, the justifications for the government’s delay
are irrelevant.
The second policy justification for nullum tempus, to
preserve the public assets from the negligence of
public officials, is also much less persuasive in the
context of statutes of repose. The legislature’s
decision to absolutely limit the timeframe in which
certain types of defendants may be sued is motivated
by fear of the economic impact of timeless liability
on their beneficial services. The legislature has
determined that the economic stability of the classes
of defendants protected by statutes of repose
outweighs the state’s interest in providing a remedy.
An argument that governmental bodies should be
immune to the balance struck by the legislature in
order to preserve public assets cannot be successful
because the legislature has already determined that it
is ultimately better for the general public to limit the
liability. Again, this is distinguished from statutes of
limitations and laches on the grounds that those
doctrines provide far less stability for defendants
because of the requirement of knowing delay.
Indeed, it is the exact purpose of statutes of repose to
protect defendants from the elastic nature of statutes
of limitations and laches because of the doctrines’
focus on the plaintiffs.
Not only are the policy considerations behind nullum
tempus severely undermined by the purposes behind
statutes of repose, but the very fact that the
legislature has enacted such statutes is indicative of
the exact type of change in circumstances that should
compel a court to discard a common law doctrine.
The legislative action to protect a group at the risk of
depriving completely blameless plaintiffs of their
causes of action makes it clear that any interference
with that protection “is no longer reflective of
economic and social needs of society.”
Id. at 194-95 (footnote omitted).
Because no clear authority from a Pennsylvania court authorizes the
use of nullum tempus to defeat a statute of repose defense under
[Section] 5536, and the only case to explicitly address the issue
13
need to demonstrate (1) that it built the Jail in its governmental capacity; and (2) in
building the Jail, it was enforcing “an obligation imposed by law as distinguished
from one arising out of an agreement voluntarily entered into by the defendant.”
Del. Cnty., 929 A.2d at 1261 (quoting Lead Indus. Ass’n, 994 F.2d at 118-119). The
trial court agreed that the County satisfied the first criteria. With respect to the
second criteria, the County contends that it was obligated to build a county jail. In
support, the County references numerous statutory provisions which clearly
authorize counties to construct jails. However, the County asks this Court to
interpret those statutory provisions as obligating counties to do so.
The County asserts:
The authority of the Commissioners to order the
construction of the . . . [J]ail is inherent in the broad
powers granted to them by the Pennsylvania General
Assembly. “The county commissioners shall be the
responsible managers and administrators of the fiscal
affairs of their respective counties in accordance with the
provisions of this act and other applicable law.” [Section
1701 of the County Code, Act of August 9, 1955, P.L.
323, as amended,] 16 P.S. § 1701. “The corporate power
of each county shall be vested in a board of county
commissioners.[”] [Section 203 of the County Code,] 16
P.S. § 203. “Each county shall have capacity as a body
corporate to . . . (4) [m]ake contracts for carrying into
execution the laws relating to counties and for all lawful
purposes . . . [; and] (6) [t]o make appropriations for any
purpose authorized by this or any other act of the General
Assembly[.”] [Section 202 of the County Code,] 16 P.S.
§ 202.
County Br. at 22-23. The aforementioned statutory provisions provide general
statutory authority for county commissioners to exercise certain powers.
rejects it, this Court predicts that the Pennsylvania Supreme Court,
if presented with this question, would not apply nullum tempus in
this case.
Belle Vernon, slip op. at ____, 2023 U.S. Dist. LEXIS 145001, *11-14, 2023 WL 5337286.
14
The County further contends that, pursuant to Section 2404-B of the
Administrative Code of 1929 (Administrative Code),11 71 P.S. § 655, the General
Assembly authorized county commissioners to construct jails.12 That provision
merely provides criteria for commissioners to consider when constructing or
renovating jails. Nothing in Section 2404-B of the Administrative Code imposes an
affirmative duty on commissioners to construct county jails.
Citing Section 1723 of the Prisons and Parole Code, 61 Pa.C.S. § 1723,
the County claims that “[t]he General Assembly also mandates that each county in
the Commonwealth have a county jail oversight board[,]” County Br. at 23, and that
11
Act of April 9, 1929, P.L. 177, as amended, added by Section 11 the Act of October 30,
2017, P.L. 379.
12
Section 2404-B of the Administrative Code provides:
(a) Criteria.--The board of commissioners shall, in addition to
compliance with the terms, conditions and requirements set forth in
the request for proposals, consider the following criteria in
evaluating proposals for the adaptive reuse of former jail facilities
or construction of new jail facilities:
(1) The cost of the proposer’s adaptive reuse or new construction
proposal.
(2) Experience of the proposer.
(3) Preservation of the distinct architectural design and integrity
of the former jail facilities.
(4) Adherence to prevailing wage laws and other work force
standards.
(5) Commitment to enter into voluntary contracts with
disadvantaged business enterprises.
(b) Selection of proposal.--After due consideration of proposals in
accordance with the criteria under subsection (a), the board of
commissioners may select a proposal and award a contract to a
responsible proposer for the adaptive reuse of a former jail facility
or construction of a new jail facility under an alternative contracting
procedure.
71 P.S. § 655.
15
“[i]mplicit in the statutory mandate that each county in the Commonwealth have a
jail oversight board with duties to oversee matters relative to the maintenance and
operation of a jail, is the converse mandate that counties construct jails for the jail
oversight board to oversee and maintain.” Id. at 24.
Section 1723 of the Prisons and Parole Code, which became effective
in 2009, states, in pertinent part:
(a) Establishment.--There is hereby established in each
county a county jail oversight board which shall be named
the (Name of County) County Jail Oversight Board. The
board shall be a continuation of the county prison board
originally established under the former [A]ct of December
10, 1980 (P.L. 1152, No. 208), known as the Second Class
County Prison Board Act, and former Article XXX-A of
the [A]ct of July 28, 1953 (P.L. 723, No. 230), known as
the Second Class County Code.
....
(d) Counties that may elect to be subject to
subchapter.--Any county that has adopted a home rule
charter may elect by resolution of the governing body of
the county to be governed by the provisions of this
subchapter.
61 Pa.C.S. § 1723 (underline emphasis added).
Importantly, Section 1722 of the Prisons and Parole Code defines
“county” as used in the subchapter as “[a] county of the second class or a county
that has elected to be governed by the provisions of this subchapter under [S]ection
1723(d) (relating to county jail oversight board).” 61 Pa.C.S. § 1722 (emphasis
added). Thus, Section 1723 of the Prisons and Parole Code does not “mandate[]
that each county in the Commonwealth have a county jail oversight board[.]”
County Br. at 23 (emphasis added). Section 1723 of the Prisons and Parole Code
applies only to second class counties and counties that have adopted home rule
charters that elected to be subject to the subchapter’s provisions. The County is not
16
a second class county and, accordingly, Section 1723 of the Prisons and Parole Code
is not applicable. Further, there is no record evidence that the County adopted a
home rule charter and elected to be subject to the subchapter. In addition, Section
1723 of the Prisons and Parole Code was not enacted until 2009, approximately 28
years after the Jail’s construction was completed. Therefore, Section 1723 of the
Prisons and Parole Code could not have been a mandate for the Jail’s construction.
Finally, the County contends that “implicit in the [c]onstitutional
mandate and statutory mandate to set conditions for bail [under article I, section 14
of the Pennsylvania Constitution,13] is the converse mandate that counties construct
jails to house pretrial detainees who are unable to secure bail.” County Br. at 24.
However, the government’s obligation to set bail conditions and responsibility to
house prisoners is not a mandate that each county construct its own jail.
Based on the foregoing, this Court concludes that, in building the Jail,
the County was not enforcing “an obligation imposed by law as distinguished from
one arising out of an agreement voluntarily entered into by the [County].” Del.
Cnty., 929 A.2d at 1261 (quoting Lead Indus. Ass’n, 994 F.2d at 118-119). Thus,
the doctrine of nullum tempus did not apply to defeat the Statute of Repose’s 12-year
limitation.
13
Article I, section 14 of the Pennsylvania Constitution declares:
All prisoners shall be bailable by sufficient sureties, unless for
capital offenses or for offenses for which the maximum sentence is
life imprisonment or unless no condition or combination of
conditions other than imprisonment will reasonably assure the safety
of any person and the community when the proof is evident or
presumption great; and the privilege of the writ of habeas corpus
shall not be suspended, unless when in case of rebellion or invasion
the public safety may require it.
PA. CONST. art. I, § 14.
17
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clearfield County, Pennsylvania, :
Appellant :
:
v. :
:
Transystems Corporation, :
successor to L. Robert Kimball and :
Associates, Inc., Leonard S. Fiore, Inc., : No. 193 C.D. 2024
and Showalter Masonry, Inc. :
ORDER
AND NOW, this 1st day of November, 2024, the Clearfield County
Common Pleas Court’s February 15, 2024 order is affirmed.
_________________________________
ANNE E. COVEY, Judge