Tuesday, September 27, 2011

govt. agencies - statute of limitations - "nullum tempus" doctrine waived

Selinsgrove Area School District v. Lobar, Inc. - Cmwlth. Court - September 27, 2011


In Delaware County v. First Union Corporation, this Court explained:

The doctrine of nullum tempus occurrit regi generally provides that statutes of limitations do not bar actions brought by a state or its agencies. „Under the doctrine of nullum tempus, statutes of limitations are not applicable to actions brought by the Commonwealth or its agencies unless a statute expressly so provides.‟
929 A.2d 1258, 1261 (Pa. Cmwlth. 2007) (quoting City of Phila. v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 118 (3d Cir. 1993)).

Although nullum tempus would ordinarily apply in a case where a school district is suing for damages resulting from negligence in the construction of its facilities,3 in this particular instance the District created and entered into a contract with Lobar which included a clause that defined the timeframe wherein claims could be brought. The issue of whether the District can contractually waive its right to invoke the doctrine of nullum tempus is a matter of first impression.

This Court has held that nullum tempus can in fact be waived. Specifically, this Court found that the doctrine “is subject to waiver when the sovereign plaintiff fails to assert its rights.” Twp. of Ind. v. Acquisitions & Mergers, Inc., 770 A.2d 364, 372 (Pa. Cmwlth. 2001). The issue before this Court thus becomes whether the District did in fact waive the doctrine by contractual provision.

We hold that where a Commonwealth agency has offered and entered into a contract addressing applicable statutes of limitations with no mention of the nullum tempus doctrine, it would be fundamentally unfair and contrary to public policy in general to permit the agency to nullify provisions of the same contract by subsequently invoking the doctrine. Accordingly, with respect to the contract at issue, we hold that the trial court properly found that the District waived any applicability of the doctrine of nullum tempus.