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Johnson v. Toll Bros., 2023 Pa. Super. LEXIS 410 (September 19, 2023) (Pellegrini, J.) 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 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.

“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., 536 Pa. 95, 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, 634 Pa. 651, 131 A.3d 1, 15 (Pa. 2015); see also Calabretta v. Guidi Homes, Inc., 2020 PA Super 251, 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[.]”).

As in Branton and Horst, we find that the trial court did not err in applying the Statute of Repose despite the allegation of building code violations. Even if Toll violated local, state or federal rules when constructing the residence, the construction was still “lawful” because Toll was authorized under the laws of the Commonwealth to do it. There is no dispute that Toll was a licensed home builder and that a certificate of occupancy was issued by the Commonwealth when construction of the Johnsons’ home was completed. See id. Thus, the Johnsons’ claims against Toll were barred by the Statute of Repose as a matter of law because they were filed over 12 years after the completion of the home’s lawful construction. See Branton, 159 A.3d at 550; Horst, 602 MDA 2020, 2021 Pa. Super. Unpub. LEXIS 656, at *9.

The Johnsons’ alternative ground for relief is that their claims were timely even if the Statute of Repose applies because they qualified for a two-year extension of the filing period. Although the trial court did not expressly consider this ground, the issue may nevertheless be decided as a matter of law on appeal. See In re A.J.R.-H., 647 Pa. 256, 188 A.3d 1157, 1175-76 (Pa. 2018).

Reading together all the sections of the Statute of Repose, it is clear that the injury contemplated in the exception of part (b) was meant to be one that “shall occur” or arise for the first time no earlier than the tenth year of the filing period. It was not meant to refer to a recurring or continuous injury that began years prior to that three-year range. We, therefore, decline to adopt the Johnsons’ interpretation of the statute. Since the Johnsons’ alleged injury began at least several years before the final three years of the Statute of Repose’s filing period, we uphold the trial court’s order granting summary judgment in favor of Toll and dismissing the Johnsons’ claims.