I. The Construction Statute of Repose and Section 5536
Construction defects often stay hidden for years. A roof can be poorly anchored, a drainage system poorly designed, or a structural element omitted during the building process, but these problems may not surface until the building is renovated decades later. Typically, a statute of limitations would be in place, giving the injured party a set period of time to sue from when the injury occurred or was discovered.1 In the context of construction, the absence of an outer limit could essentially leave architects, engineers, and contractors forever exposed to suits over work they completed.2
Pennsylvania’s solution is the construction statute of repose codified at Section 5536 of the state’s Judicial Code.3 The statute requires that any civil action against a person “lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property” be commenced within 12 years after construction is completed.4 The rule covers claims for deficiency itself, injury to property, personal injury or wrongful death caused by the deficiency, and for contribution or indemnity.5 The statute also lists two exceptions. If an injury or death occurs more than ten but within 12 years after completion, the action may be filed up to 14 years after the completion date.6 Additionally, a person in actual possession or control of the improvement when the deficiency causes the injury cannot assert the defense.7
A statute of repose differs from a statute of limitations both in length and in kind. Statutes of limitations run from when the claim accrues, while a statute of repose runs from the defendant’s last culpable act and can bar a claim before any injury has occurred.8 In April 2026, the Pennsylvania Supreme Court confirmed in Clearfield County v. Transystems Corp. that this difference means even a government plaintiff cannot revive a construction claim once the 12-year period has run.9
II. From Misitis to Clearfield County: The History Behind Section 5536
Section 5536 is “substantially a reenactment” of the Act of December 22, 1965, which had the effect of a statute of repose.10 The Pennsylvania Supreme Court believes that given the statute’s history, it was passed through the efforts of the American Institute of Architects, the National Society of Professional Engineers, and the General Contractors of America “to protect these professions from suit long after improvements were completed.”11
From the beginning, Pennsylvania courts have treated the statute as more than a filing deadline. The Supreme Court explained in the 1971 case, Misitis v. Steel City Piping Co, that the 1965 Act did not alter the existing statute of limitations, but instead “completely eliminates all causes of action arising out of negligence in construction or design which occurred more than twelve years before the accident.”12 Seven years later, the Court upheld a 12-year repose period for claims against architects and builders in Freezer Storage, Inc. v. Armstrong Cork Co.13 It held that the Pennsylvania Constitution does not prohibit the Legislature from abolishing a common law right of action without enacting a substitute remedy.14
In 1994, the Court made the classification explicit in Noll by Noll v. Harrisburg Area YMCA: “Section 5536 is a statute of repose, rather than a statute of limitation. 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.”15 Later decisions spelled out what follows from the statute of repose label. Statutes of repose generally may not be tolled, “even in cases of extraordinary circumstances beyond a plaintiff’s control.”16 They are usually jurisdictional, with their scope being a question of law for the court.17 They also operate as substantive law, “extinguishing a cause of action outright and precluding its revival.”18 However, repose statutes are still subject to constitutional limits. In 2019, the PA Supreme Court struck down the seven-year repose period for medical malpractice claims under the Open Courts clause.19
Clearfield County tested whether those principles hold when the plaintiff is a public entity.20 Around 1977, Clearfield County contracted with an architectural and engineering firm, who retained a general contractor and a masonry contractor, to build a new county jail.21 The construction was completed in 1981 and that March, the Department of Labor and Industry issued a certificate of occupancy.22 During a 2021 renovation, a contractor discovered that the jail’s roof had never been attached to its masonry walls, costing the County almost $3.9 million to remedy.23 In January 2023, over 40 years after completion, the County sued the designer’s successor, the general contractor, and the masonry contractor for negligence, fraudulent misrepresentation or nondisclosure, and breach of contract.24
The County argued that although the 12 years provided in the statute of repose had passed, their claim could still be made under the common law doctrine of nullum tempus occurrit regi (“no time runs against the king”).25 Nullum tempus has long allowed the Commonwealth to avoid statutes of limitations. Political subdivisions may invoke it when enforcing strictly public rights, meaning the claim “accrues to them in their governmental capacity” and “enforce[s] an obligation imposed by law” rather than one arising from a voluntary agreement.26 The trial court sustained the defendants’ preliminary objections, holding that nullum tempus did not apply to Section 5536.27 The Commonwealth Court affirmed on narrower grounds.28 It assumed that the doctrine could apply, but held the County could not invoke it because no law obligated the County to build a jail.29
The Supreme Court affirmed the Commonwealth Court’s decision and squarely rejected the County’s argument.30 However, it declined the Commonwealth Court’s assumption, stating that whether nullum tempus applies to Section 5536 is a pure question of law.31 The Court explained that Section 5536 “abolishes and eliminates causes of action against construction industry professionals 12 years after the construction project is completed and precludes the revival of those causes of action.”32 It added that the statute “divests a court subject matter jurisdiction” over claims filed beyond that period and is not subject to tolling or estoppel.33 Here, the County’s argument to invoke nullum tempus was essentially an attempt to toll a statute that cannot be tolled.34 The Court described Section 5536 as a “legislative decision that the public interest is best served by eliminating the liability of construction industry professionals after 12 years, regardless of the reason an injured party was unable to bring suit within 12 years.”35 Along the way, the Court rejected a 1982 Commonwealth Court decision that allowed nullum tempus to defeat Section 5536.36 It called the case an “outlier” that improperly treated the statute as a statute of limitations without analysis.37
III. Impact on Owners, Developers, Contractors, and Design Professionals
Architects, engineers, and contractors are the clearest winners of the Clearfield County decision. The decision confirms that the 12-year period is a firm outer limit on their liability, regardless of whether the plaintiff is a homeowner, developer, or a county. Because the statute is jurisdictional, the defense can end a case at the pleadings stage, as seen in Clearfield County.38 For these defendants, the completion date becomes the most important fact to document and preserve.
Owners bear the corresponding burden, with public entity owners sharing it fully. Counties, municipalities, school districts, and other public entities are all forbidden from using nullum tempus to reach back past the 12-year window for construction defect claims.39 Additionally, the way the claim is pleaded will not change the result; negligence, fraud, and contract claims were all dismissed together in Clearfield County.40 Owners should make a habit of assessing major buildings and their construction well before the 12th anniversary of completion. A latent defect that is found in year 13 is gone, even if it could not have been discovered sooner.41
Owners and occupants should also note the possession-or-control exception. A person in actual possession or control of the improvement when the deficiency causes injury, whether serving as owner, tenant, or otherwise, cannot invoke Section 5536.42 The statute protects those who design and build, but not those who own or run the property when the injury occurs.
The statute’s reach remains slightly unsettled. The Supreme Court has granted review in Aloia v. Diament Building Corp. to decide whether the protection for persons “lawfully performing or furnishing” construction services is lost when the work allegedly violated the building code.43 A ruling for the homeowners in Aloia could give plaintiffs a way around the statute that the Court did not address in Clearfield County.
In sum, Clearfield County confirms that Section 5536 operates as a true statute of repose. Once 12 years have passed from the completion of construction, a claim against those responsible for building it no longer exists, and no plaintiff, public or private, can revive it. The Clearfield County decision is highly favorable to the design and construction industry. On the other hand, it requires owners, including public entities, to identify and pursue construction defect claims within a fixed window the statute provides.
1 Dubose v. Quinlan, 173 A.3d 634, 643–45 (Pa. 2017) (quoting CTS Corp. v. Waldburger, 573 U.S. 1, 7–10 (2014)).
2 Id.
3 42 Pa.C.S. § 5536.
4 Id. § 5536(a).
5 Id. § 5536(a)(1)–(4).
6 Id. § 5536(b)(1).
7 Id. § 5536(b)(2).
8 Dubose, 173 A.3d at 643–45.
9 Clearfield Cnty. v. Transystems Corp., 355 A.3d 866, 885 (Pa. 2026).
10 See 42 Pa.C.S. § 5536; see also Clearfield Cnty., 355 A.3d at 884 (citing Misitis v. Steel City Piping Co., 272 A.2d 883, 885 (Pa. 1971)).
11 Noll by Noll v. Harrisburg Area YMCA, 643 A.2d 81, 86 (Pa. 1994).
12 Misitis, 272 A.2d at 885.
13 Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 720 (Pa. 1978).
14 Id.
15 Noll by Noll, 643 A.2d at 84 (citations omitted).
16 Dubose, 173 A.3d at 644–45 (quoting CTS Corp., 573 U.S. at 9).
17 Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 15 (Pa. 2015).
18 Graver v. Foster Wheeler Corp., 96 A.3d 383, 387 (Pa. Super. Ct. 2014).
19 Yanakos v. UPMC, 218 A.3d 1214, 1226–27 (Pa. 2019).
20 Clearfield Cnty. v. Transystems Corp., 355 A.3d 866 (Pa. 2026).
21 Id. at 869–70.
22 Id. at 870.
23 Id.
24 Id.
25 Id. at 871.
26 City of Philadelphia v. Holmes Elec. Protective Co., 6 A.2d 884, 887 (Pa. 1939).
27 Clearfield Cnty., 355 A.3d at 871.
28 Id. at 873–75.
29 Id. at 873, 875.
30 Id. at 885–86.
31 Id. at 879.
32 Id. at 885.
33 Id.
34 Id.
35 Id.
36 Id. at 884 (discussing Gen. State Auth. v. Lawrie & Green & John McShain, Inc., 439 A.2d 228, 229 (Pa. Commw. Ct. 1982)).
37 Id.
38 See id. at 871, 872, 885.
39 Id. at 883.
40 Id. at 869, 886.
41 See 42 Pa.C.S. § 5536(a); Dubose, 173 A.3d at 643–45.
42 42 Pa.C.S. § 5536(b)(2).
43 Alota v. Diament Bldg. Corp., 329 A.3d 586 (Pa. 2024) (granting allowance of appeal); 42 Pa.C.S. § 5536(a).
