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COMMONWEALTH PENNSYLVANIA v. ROCKLAND CONSTRUCTION CO. (06/28/82)

decided: June 28, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
ROCKLAND CONSTRUCTION CO., NEW ENTERPRISE STONE & LIME CO., NASSAUX-HEMSLEY, INC. AND CORNELL CO., INC.



No. 81-2-265, Appeal from the Order of the Commonwealth Court at No. 2405 C.D. 1980, entered June 18, 1981.

COUNSEL

Mark F. Brancato, Asst. Chief Counsel, Ward T. Williams, Chief Counsel, Jay C. Waldman, Exc. Asst. to the Governor, Dept. of Transportation, Harrisburg, for appellant.

Charles V. Stoelker, Philadelphia, for appellee Rockland Const. Co.

Edward E. Knauss, IV, Harrisburg, for appellee Nassaux-Hemsley.

Robert R. Reeder, James K. Thomas, II, Richard C. Bennett, Philadelphia, for appellee Cornell Co., Inc.

Richard W. Foltz, Jr., Kenneth M. Cushman, Philadelphia, for appellee New Enterprise Stone and Lime Co.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, and Hutchinson, JJ. McDermott, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 498 Pa. Page 533]

OPINION OF THE COURT

Here, as in Commonwealth, Pennsylvania Dep't of Transportation v. J. W. Bishop & Co., Inc., and George H. Overmoyer, 497 Pa. 58, 439 A.2d 101 (1981), this Court is presented with a challenge to the common law doctrine of nullum tempus occurrit regi ("time does not run against the king"). As in Bishop and Overmoyer, we reaffirm the well-established rule that statutes of limitations are not applicable to actions brought by the Commonwealth unless the statute expressly so provides. Thus, we vacate the order of the Commonwealth Court and remand for further proceedings.

In October of 1980, appellant Department of Transportation filed suit in the Commonwealth Court against appellee Rockland Construction Company to recover damages resulting from an alleged latent defect in a pier cap used in the construction of a bridge owned by the Commonwealth. Construction of the bridge was completed in 1969. Rockland, the general contractor, joined appellee New Enterprise Stone & Lime Company, the fabricator of the pier cap. New Enterprise in turn joined appellee Nassaux-Hemsley, Inc., the designer of the cap and appellee Cornell Company, Inc., the sub-contractor who had installed the cap.*fn*

[ 498 Pa. Page 534]

Appellees filed a motion for summary judgment on the ground that recovery is barred by the statute of limitations, 42 Pa. C.S. ยง 5527(2). Judge Palladino granted appellees' motion on the basis of the Commonwealth Court's decision in Commonwealth, Pennsylvania Dep't of Transportation v. J. Page 534} W. Bishop & Co., Inc., and George H. Overmoyer, 55 Pa. Commw. 377, 423 A.2d 773 (1980), which had refused to apply the doctrine of nullum tempus. While the Commonwealth's appeal from the Commonwealth Court's ruling was pending, this Court examined the "sound public policy of vindicating public rights and protecting ...


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