July 24, 2026

By: John H. Williams, Jr.

In Clearfield County v. Transystems, No. 10 WAP 2025 (Pa. Apr. 30, 2026), the Pennsylvania Supreme Court addressed a deceptively simple question with significant consequences for public construction litigation: may a county avoid Pennsylvania’s 12-year construction statute of repose by invoking the common-law doctrine of nullum tempus occurrit regi?

The court’s unanimous answer was no.

That holding matters because nullum tempus—literally, “time does not run against the king”—has long protected certain governmental plaintiffs from ordinary statutes of limitations. But Clearfield County confirms that the doctrine does not allow a governmental plaintiff to revive claims that the legislature has extinguished through a statute of repose. In doing so, the court drew a sharp line between procedural time bars that limit remedies and substantive repose periods that eliminate causes of action altogether.

The Dispute

The case arose from the construction of the Clearfield County Jail. According to the county’s complaint, the county contracted in the late 1970s for the design and construction of a new jail. Construction was completed in 1981, a certificate of occupancy was issued, and the jail began operating that year.

Decades later, during a renovation project, the county alleged that it discovered a serious defect: the original roof allegedly had not been connected to the masonry walls and was instead “floating on top of the building.” The county alleged that it paid more than $3.8 million to correct the condition. In 2023, more than 40 years after completion of the original construction, the county filed suit against the architect’s successor, the general contractor, and the masonry contractor, asserting claims for negligence, fraudulent misrepresentation or nondisclosure, and breach of contract.

The defendants filed preliminary objections based on Pennsylvania’s construction statute of repose, 42 Pa. C.S. Section 5536. That statute generally requires actions against persons involved in the design, planning, supervision, observation or construction of improvements to real property to be commenced within 12 years after completion of construction.

The county responded that, as a governmental plaintiff seeking to vindicate public rights and protect public property, it could invoke nullum tempus to avoid the 12-year bar.

The Two Defenses: Holmes and Repose

The case presented two related but distinct defenses.

The first was the traditional nullum tempus defense under City of Philadelphia v. Holmes Electric Protective, 6 A.2d 884 (Pa. 1939). Under Holmes, political subdivisions do not enjoy the full sovereign protection of the commonwealth itself. They may invoke nullum tempus only when seeking to enforce strictly public rights—meaning, in general terms, that the claim accrued in the governmental capacity of the political subdivision and was brought to enforce an obligation imposed by law, as distinguished from one arising from a voluntary agreement. That argument asks a threshold question: can this particular governmental plaintiff invoke nullum tempus in this particular case?

The second defense was broader: even assuming the county could invoke nullum tempus, the doctrine cannot overcome a statute of repose. That argument does not depend primarily on whether the county was acting in a governmental capacity, whether jail construction was publicly important, or whether the County was trying to protect public funds. Rather, it asks a different question: what remains of a cause of action after the repose period expires?

The answer, the Supreme Court held, is nothing.

The Lower Courts Took Different Routes

The Clearfield County Common Pleas Court sustained the preliminary objections and dismissed the complaint with prejudice. It concluded that the defendants had established the elements of the construction statute of repose: the jail was an improvement to real property; construction was completed in 1981; and, the Defendants were within the class protected by Section 5536.

The court then addressed the county’s attempted reliance on nullum tempus, concluding that the doctrine does not defeat the statute of repose. The trial court focused on the purpose of repose statutes: unlike statutes of limitations, which regulate the time within which claims must be asserted after they accrue, statutes of repose reflect a legislative judgment that certain defendants should be free from liability after a fixed period measured from the defendant’s conduct.

The Commonwealth Court affirmed, but on a different ground. It assumed, without deciding, that nullum tempus could apply to a statute of repose. But that court held that the county had not satisfied the Holmes test because the county had not shown that it was under a legal obligation to construct its own jail. The statutes and constitutional provisions cited by the county authorizes counties to construct jails or addressed related governmental responsibilities, but the Commonwealth Court did not read them as imposing an affirmative legal mandate that Clearfield County build this jail.

Thus, while the Clearfield County court resolved the case principally on the statute of repose question, the Commonwealth Court resolved it principally on the Holmes threshold question.

The Supreme Court chose the first path.

The Supreme Court’s Holding

The Supreme Court declined to assume that nullum tempus could apply to Section 5536. Instead, it held directly that the doctrine does not permit a county to avoid the construction statute of repose.

The court began with the settled character of Section 5536. Pennsylvania courts have long treated the statute of repose in a manner quite distinctive from a statute of limitations. A statute of limitations generally bars a remedy if a plaintiff waits too long after a claim accrues. It is concerned with diligence, stale claims, faded memories, lost evidence, and repose in the ordinary litigation sense. Because limitation periods are tied to accrual and diligence, they can sometimes be subject to tolling or exceptions.

By contrast, a statute of repose does something more absolute: it places an outer limit on liability measured from the defendant’s last act or omission, regardless of when injury occurs or when the plaintiff discovers it. Once the repose period expires, the cause of action is not merely late. It is extinguished.

That distinction foreclosed the county’s argument. Nullum tempus is a common-law doctrine that allows certain governmental plaintiffs to avoid statutes of limitations. It rests on the public-policy concern that public rights, revenues, and property should not be lost because public officers failed to bring suit in time. But Section 5536 embodies a different legislative policy: after 12 years, construction professionals should be free from indefinite liability for completed improvements to real property.

The Supreme Court held that allowing nullum tempus to avoid Section 5536 would undermine that legislative judgment. The doctrine would reintroduce the very indeterminate liability the statute was enacted to eliminate.

Accordingly, the court held that nullum tempus cannot toll, avoid, or preclude application of Section 5536. Because that conclusion resolved the case, the court did not decide whether Clearfield County could have satisfied the Holmes test.

Why the Holmes Issue Still Matters

Although the Supreme Court did not reach Holmes, the competing grounds remain important.

The Commonwealth Court’s analysis addressed whether this county, asserting these claims, could invoke nullum tempus at all. That inquiry would still matter in cases involving statutes of limitations, laches, or other defenses that nullum tempus may properly reach.

The Supreme Court’s analysis was more fundamental. It held that, where Section 5536 applies, the Holmes inquiry never becomes dispositive because there is no claim left for nullum tempus to preserve. A political subdivision may be acting for a public purpose. It may be seeking to protect public funds. It may even be performing a core governmental function. But none of that changes the legal effect of a statute of repose that extinguishes the cause of action after the legislatively prescribed period.

That is the scholarly center of the decision: Clearfield County is not simply a government-plaintiff case. It is a separation-of-powers case about the relationship between common-law doctrines and legislative repose. The court treated Section 5536 as a legislative endpoint, not a procedural hurdle. Once the legislature has abolished the claim after 12 years, a common-law doctrine designed to excuse governmental delay cannot restore it.

Practical Significance

For architects, engineers, contractors, and other construction professionals, the decision is significant. It confirms that Section 5536 means what it says: after 12 years from completion of construction, covered claims are barred, even when the plaintiff is a governmental entity and even when the alleged defect was not discovered until much later.

For public entities, the decision is equally important. Public ownership, public funds, and public purposes do not themselves override the construction statute of repose. Claims involving public buildings, schools, jails, courthouses and similar projects must still be evaluated against Section 5536’s 12-year cutoff.

For litigators, the decision also clarifies the order of analysis. A defendant facing old construction claims by a public entity should consider both defenses: first, whether the governmental plaintiff can invoke nullum tempus under Holmes at all; and second, whether the applicable time bar is a statute of repose rather than a statute of limitations. After Clearfield County, the second point maybe dispositive when Section 5536 applies.

Conclusion

Clearfield County gives Pennsylvania construction professionals a clear and important rule: nullum tempus does not defeat the 12-year construction statute of repose.

The old maxim says time does not run against the king. But under Section 5536, repose does. After 12 years, the legislature has decided that the claim no longer exists. And where the cause of action has been extinguished, there is nothing left for nullum tempus to save.

Reprinted with permission from the July 23, 2026 edition of the Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved.