The Commonwealth Court held that the Township of Salem (the Township) was entitled to collect damages from Miller Penn Development, LLC (Developer) for incomplete improvements Developer was required to install under the Township’s subdivision and land development ordinance (SALDO). The court held that the applicable statute of limitation did not apply to the Township’s claim, pursuant to the nullum tempus doctrine, and awarded the township damages for the cost of repairing the improvements.
In March 2000, the Township granted final development approval for Shaw Court, a residential development that included the construction of a street ending in a cul-de-sac. As part of the Township’s approval, Developer agreed to build all public improvements according to the Township’s specifications. The Township’s specifications required all public streets have subbases and bases of certain lengths, and that all cul-de-sacs be a minimum of eighty feet in diameter. The cul-de-sac street running through Shaw Court failed to meet either of these specifications, and as a result it developed ruts, cracks, and potholes, and water began ponding on the roadway.
The Township sued Developer in March 2010, seeking $193,165 in damages for the cost of fixing these defects. The Westmoreland County Court of Common Pleas found for the Township. It dismissed Developer’s argument that the claims were barred by the applicable statute of limitations (SOL), finding that the SOL had not begun to run until 2009. However, the court only awarded damages of $25,558.45 because it found the Township’s repair estimates to be mostly speculative. Both the Township and Developer appealed.
On appeal, Developer argued the trial court erred by finding the SOL had not begun to run until 2009. The Commonwealth Court agreed, finding the SOL period had expired in 2008. However, the court determined that the nullum tempus doctrine—which protects government suits from being barred by a SOL unless the statute expressly limits the government’s right to sue—applied. For the nullum tempus doctrine to apply, the claim must (1) accrue to the municipality in its official capacity and (2) seek to enforce a legal obligation. The court found that claims by municipalities for repairs to public improvements required by a SALDO were legal obligations imposed by the Municipalities Planning Code (MPC), and not mere voluntary contractual undertakings. Therefore, such claims were protected by the nullum tempus doctrine. As the SOL at issue did not so expressly limit government suits, it did not bar the Township’s claim. Finally, the court held that the Township could not compel Developer to complete the project, but could only recover completion costs.
Click here to read: Twp. of Salem v. Miller Penn Dev. LLC, No. 2083 C.D. 2015 (Pa. Commw. Ct. May 26, 2016); No. 2174 C.D. 2015 (Pa. Commw. Ct. May 26, 2016).
Bob Turchick, Law Clerk
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