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NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE AND NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE AUTHORITY v. DOW CHEMICAL (10/02/89)

filed: October 2, 1989.

NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE AND NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE AUTHORITY
v.
DOW CHEMICAL, U.S.A., MASONRY SYSTEMS OF PENNSYLVANIA, INC., A/K/A GRAMMAR, INC., WALLACE AND WATSON ASSOCIATES, SUCCESSOR IN INTEREST TO COSTON WALLACE WATSON, JAMES T. HARTNETT CONSTRUCTION CO., INC., AND CLARENCE B. HANEY MASON CONTRACTOR, INC., AND TRUETT COSTON, WILLIAM WALLACE AND WILLIAM WATSON, INDIVIDUALLY AND T/A COSTON, WALLACE AND WATSON. APPEAL OF WALLACE AND WATSON ASSOCIATES, SUCCESSOR IN INTEREST TO COSTON, WALLACE, WATSON, JAMES T. HARTNETT CONSTRUCTION COMPANY, INC.: TRUETT COSTON, WILLIAM WALLACE AND WILLIAM WATSON, INDIVIDUALLY AND T/A COSTON, WALLACE AND WATSON, APPELLANTS. NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE AND NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE AUTHORITY, APPELLANTS, V. DOW CHEMICAL, U.S.A., MASONRY SYSTEMS OF PENNSYLVANIA, INC., A/K/A GRAMMAR, INC., WALLACE AND WATSON ASSOCIATES, SUCCESSOR IN INTEREST TO COSTON WALLACE WATSON, JAMES T. HARTNETT CONSTRUCTION CO., INC., AND CLARENCE B. HANEY MASON CONTRACTOR, INC. AND TRUETT COSTON, WILLIAM WALLACE AND WILLIAM WATSON, INDIVIDUALLY AND T/A COSTON, WALLACE AND WATSON



Appeal from the Order entered July 21, 1988, Court of Common Pleas, Northampton County, Civil Division at No. 1984-C-5035.

COUNSEL

Susanne Longenhagen, Philadelphia, for appellants (at 3006PHL88) and appellees (at 316PHL89).

Shawn Kenny, Harrisburg, for Hartnett Const., appellant (at 3006PHL88) and appellee (at 316PHL89).

Mark A. Welge, Philadelphia, for Dow Chemical, appellee at (3006PHL88 and 316PHL89).

Paul Logan, King of Prussia, for Northampton, appellants (at 316PHL89).

Beck, Johnson and Hoffman, JJ.

Author: Johnson

[ 389 Pa. Super. Page 15]

Northampton Area Community College (the College) appeals from the trial court's grant of appellee Dow Chemical U.S.A. (Dow)'s motion for summary judgment. We are asked to decide whether a plaintiff community college may defeat a defense of the statute of limitations by asserting the doctrine of nullum tempus occurrit regi (literally, "time does not run against the King." Black's Law Dictionary (4th ed. rev. 1968 at 1217)). Because the legislature has conclusively defined Commonwealth parties for the purpose of asserting governmental privileges, and because we conclude that the Community Colleges are not covered by this definition, we hold that a community college may not assert the privilege of nullum tempus. Hence, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The College, located in Northampton County, Pennsylvania, was created pursuant to an enabling statute, The Community College Act of 1963, 24 P.S. § 5201, et seq., which has since been repealed and replaced by 24 P.S. § 19-1901-A et seq. The Northampton Area Community College Authority (Authority) is a body created under another enabling act, the Municipality Authorities Act, 53 P.S. § 301 et seq. The College contracted with James T. Hartnett Construction Co., Inc. for construction of an Engineering and Business Technologies Center (the building). Prefabricated masonry panels containing Sarabond, a mortar bonding agent manufactured by Dow, were used in the

[ 389 Pa. Super. Page 16]

    construction. These panels were manufactured by Masonry Systems of Pennsylvania, Inc. using Sarabond purchased from Dow. The panels were then sold to the general contractor. The architect issued a certificate of substantial completion for the building in 1973.

On January 12, 1979, Dow sent a letter to Leon Reichwein, the College's Vice President For Administrative Services, advising that the building may have been constructed with masonry panels containing Sarabond, and which could cause corrosion problems if Sarabond came into contact with unprotected steel "under certain conditions which may or may not exist in your building . . . ." The letter suggested that the College have an inspection of the masonry construction performed by a qualified person and requested that Dow be permitted to be present during the inspection.

Leon Reichwein distributed the letter to each of the members of the College's board of trustees, the College's Superintendent of Buildings and Grounds and the College's President. He also informed the Authority's Board of Directors. Shortly after receipt of the letter the Superintendent of Buildings and Grounds visually inspected the building from the outside and noticed cracks. The architect as well as the College's counsel recommended that an independent party conduct a thorough inspection. The architect also apprised the College that Dow was a defendant in a lawsuit alleging masonry cracking due to Sarabond. The College negotiated with an independent architect for an inspection, but this proposed inspection never took place. Finally, in May of 1980, the College had Dow perform an inspection. Dow issued a report in July of 1981 concluding that the building was basically sound and that cracks in the masonry seemed to be caused by freeze-thaw conditions. In November of 1983 a Sarabond expert who reviewed Dow's report suggested that the masonry cracking in the building was most likely Sarabond related. On July 2, 1984 the College and the Authority commenced an action against Dow and the other defendants by writ of summons alleging

[ 389 Pa. Super. Page 17]

"in excess of $1,000,000.00" in damages. While the College brought the same allegations against the architects and the contractors, this appeal involves only the counts brought against Dow. The co-defendants had filed a notice of appeal which was subsequently withdrawn following Dow's reinstatement as a third-party defendant.

The College's first Complaint, filed on October 16, 1984, alleged that Dow breached express and implied warranties, that Dow was strictly liable for the damage to the building under § 402 A, Restatement of Torts (2d), and that Dow failed to warn of possible damage from Sarabond. Following discovery and with leave of court, the College filed an amended complaint on February 11, 1986 adding the allegations that Dow, knowing that Sarabond caused corrosion, fraudulently hid or misrepresented its knowledge and later intentionally falsified the inspection report.

On November 9, 1987 Dow filed a Motion for Summary Judgment alleging that the College had no standing to bring a breach of warranty action, that the statute of limitations barred the tort claims, and that the College had no cause of action in fraud because the College had the opportunity to discover the defects on their own and were thus not dependent upon any of Dow's representations. On January 5, 1988, following additional discovery, the College replied, asserting that privity was not required for a recovery for breach of contract, that, based upon the discovery rule, its causes of action were all filed within the applicable statutes of limitation, and that because Dow actively concealed Sarabond's harmful qualities, Dow was estopped from asserting any statute of limitations defense. Additionally, the College argued that it was a Commonwealth agency and thus any statute of limitations defense against it must fail under the doctrine of nullum tempus occurrit regi. The court granted Dow's motion by Order and Opinion of July 21, 1988. By order of August 25, 1988 the trial court reinstated Dow as a party solely with regard to the existing cross-claims by the co-defendants.

[ 389 Pa. Super. Page 18]

The College then appealed to the Commonwealth Court. On December 8, 1988 the Commonwealth Court determined that it had jurisdiction over neither the College nor the College Authority because neither entity was part of the Commonwealth government. The court transferred rather than dismissed the case because the underlying issues, "the threshold affirmative defense question of the statute of limitations, together with the related nullum tempus issue," are issues that regulate the affairs of all litigants. Hence this appeal.

On appeal the College argues that the statutes of limitation did not run against their various claims and that, even if they had run, they could not be asserted against the College under the doctrine of nullum tempus. We will first address the nullum tempus issue.

NULLUM TEMPUS

Nullum tempus, which the sovereign asserts as plaintiff, must be viewed together with sovereign immunity, its coordinate doctrine, which the sovereign asserts when it is a defendant. In our system of government, unlike the monarchies under which they originated, these traditional privileges depend upon the legislature for their delineation and implementation. A sovereign asserts sovereign immunity as a defense to avoid the consequences of law under the traditional convention that the King can do no wrong. Mayle v. Pennsylvania Department of Highways, ...


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