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COMMONWEALTH PENNSYLVANIA v. J. W. BISHOP & CO. (12/17/80)

decided: December 17, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PLAINTIFF
v.
J. W. BISHOP & CO., INC., DEFENDANT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PLAINTIFF V. GEORGE H. OVERMOYER, DEFENDANT



Original jurisdiction in the case of Commonwealth of Pennsylvania, Department of Transportation v. J. W. Bishop & Co., Inc., and in the case of Commonwealth of Pennsylvania, Department of Transportation v. George H. Overmoyer.

COUNSEL

Paul A. Logan, Assistant Attorney General, with him John T. Kalita, Jr., Assistant Attorney General, Ward T. Williams, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for plaintiff.

F. Lee Shipman, with him Timothy I. Mark, Goldberg, Evans & Katzman, for defendant, J. W. Bishop & Co., Inc.

Harvey Freedenberg, with him David E. Lehman, McNees, Wallace & Nurick, for defendant, George H. Overmoyer.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Craig. Dissenting Opinion by Judge Mencer. Dissenting Opinion by Judge Wilkinson, Jr. Judge Williams, Jr. joins.

Author: Craig

[ 55 Pa. Commw. Page 379]

The Commonwealth of Pennsylvania, through the Department of Transportation, has brought these two separate actions in trespass against defendants George H. Overmoyer and J. W. Bishop & Company, Inc. to recover damages for the collapse of state bridges, allegedly caused by defendants' overweight vehicles. We have consolidated the cases for consideration because both turn upon the same issue.

The pleadings on their face make clear that the state filed its action against defendant J. W. Bishop & Company, Inc. 6 years and 11 months after the cause of action arose and against defendant Overmoyer 8 years and 4 months after the occurrence.

On the basis of the six-year statute of limitations pertaining generally to property damage actions,*fn1 one defendant has moved for summary judgment and the other for judgment on the pleadings. The Commonwealth, not disputing that the question is one of law only, claims that it is immune from the bar of the statute of limitations, citing the leading case of Frey's Estate, 342 Pa. 351, 21 A.2d 23 (1941), as well as others, including, e.g., Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958). Our conclusion is that, under Pennsylvania jurisprudence today,

[ 55 Pa. Commw. Page 380]

    the Commonwealth is no longer exempted from compliance with statutes of limitations by the doctrine of nullum tempus occurrit regi.

Although that judicial doctrine is thus labeled by a maxim which translates "Time does not run against the king",*fn2 Commonwealth v. Baldwin, 1 Watts 54, 54-5 (1832) ruled that, in the land of William Penn, the doctrine has stemmed, not from the dignity of royalty, but from the trusteeship aspect of the kingly prerogative of government. Nevertheless, we perceive that the death of the kingly prerogative of the state was pronounced by the Pennsylvania Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978).

In Mayle, our Supreme Court discarded the judicial doctrine of sovereign immunity because it irrationally made justice depend upon the status of one party, and because, without it, the state can be expected to be more efficient. We cannot deny the relevance of these same considerations to the abolition of nullum tempus.*fn3

The function of a statute of limitations, in barring stale claims after ample time has been afforded to pursue them, is a function which promotes justice. Insurance Company of North America v. Carnahan,

[ 55 Pa. Commw. Page 381446]

Pa. 48, 284 A.2d 728 (1971). The foundation of a statute of limitations is the duty of litigants to pursue litigation with reasonable diligence so that the system is not impaired in its operation. In Schmucker v. Naugle, 426 Pa. 203, 205-6, 231 A.2d 121, 123 (1967) the Pennsylvania Supreme Court stated:

Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary.

Thus, given that our system of justice is enhanced by barring lax plaintiffs from pursuing personal injury claims after two years and property damage or contract claims after six years, the fact that the laxity is on the part of the Commonwealth's agents does not affect the applicability of the principle.*fn4

By the same token, delay in litigation can produce an unjust imposition as much when the plaintiff is the state as when it is a private party.

The person against whom the right is to be enforced might be greatly prejudiced by plaintiff's delay. Witnesses disappear or remove to distant ...


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