The Pennsylvania Supreme Court has ruled against Clearfield County’s efforts to recoup more than $3.8 million in costs from a recent prison renovation project that included the correction of a construction defect dating back more than 45 years.

The county began construction of a new prison in 1977 when the commissioners signed a contract with the Ebensburg-based architectural and engineering company L. Robert Kimball and Associates Inc.

Other area contractors that included Leonard S. Fiore Inc. of Altoona and Showalter Masonry Inc. of Everett also became involved in the construction effort, and by March 4, 1981, the new prison was opened for occupancy.

In 2021, the county commissioners decided a renovation project was in order.

The county contracted with ABM Solutions LLC, a California-based company, for the project.

As work on the prison began, it was discovered that the original roof was not connected to the walls of the facility.

The Pennsylvania Supreme Court in its opinion issued late last week described the roof as essentially “floating on top of the building.”

The cost of the renovation was increased by $3,878,660 to correct the problem by inserting a bond beam that, the court indicated, went around the building’s perimeter, thus attaching the roof to the walls of the prison.

On Jan. 6, 2023, the county filed a civil lawsuit against the three area companies, citing them with negligence, nondisclosure and breach of contract.

Its purpose was to recoup the $3.8 million expenditure of attaching the roof to the structure’s walls.

By this point, L. Robert Kimball and Associates had become the TranSystems Corporation, which was listed as the successor enterprise to Kimball for purposes of the lawsuit.

The lawsuit quickly veered into an unknown and unprecedented legal landscape.

The defendants contested the lawsuit, citing a Pennsylvania law (known as a statute of repose) that barred civil actions for construction defects that occurred more than 12 years after the project’s completion.

The statute was different from a statute of limitations, which permits filing a court action within a certain time limit.

A statute of repose bars any legal action past the 12-year period and was enacted as protection for the construction industry only.

The defendants initially argued the court lacked jurisdiction because the complaint was not filed within the 12-year period.

The county replied with its own interpretation, contending the common law doctrine of nullum tempus — no time runs against the king — preempted the statute of repose, thus permitting the county to sue.

Although counties are not mandated to construct prisons, Clearfield County contended counties are permitted to build prisons.

The county stated nullum tempus precludes the statute of repose because the lawsuit was filed “to vindicate public rights and to protect public property.”

The commissioners continued with their argument, noting, “The County was pursuing a public purpose in contracting for the construction of the jail. The County asserts it was not engaging in its own voluntary transaction.”

And the county stated nullum tempus entitles government entities to initiate causes of action that would be time-barred, if brought by an individual or private company.

The Supreme Court opinion expressed in its words Clearfield’s position, stating, “The County emphasizes that it and its citizens have been deprived of over $3.8 million because of negligent construction, and it should be of no consequence that the bad workmanship occurred more than two years after construction or 12 years after construction, because, under either scenario, the citizens of Clearfield County have been, and will be deprived of public funds.”

The trial judge who heard the case in Clearfield

County — Kenneth G. Valasek of Armstrong County — and the Pennsylvania Commonwealth Court disagreed.

The defendants were persuasive in their argument, pointing out that the General Assembly in July 1976 passed the statute of repose to protect construction professionals from “timeless liability” concerning their projects.

The defense attorneys said it would be “fundamentally unfair to apply nullum tempus when the legislature has already decided that public policy is best served by eliminating the liability of construction professionals after 12 years.”

In an opinion written by Justice Sallie Munday, the state Supreme Court unanimously upheld the statute of repose.

“The enactment of (the statute) was a legislative decision that the public interest is best served by eliminating the liability of construction industry professionals after 12 years, regardless of the reason an injured party was unable to bring (an action) within 12 years from the completion of construction.

“Allowing (the) County to invoke nullum tempus to avoid the repose period would undermine the legislative judgment because it would introduce the threat of indeterminate liability to construction industry professionals,” she continued.

“Accordingly, we conclude nullum tempus cannot toll the statute of repose,” the opinion stated.

The Munday opinion was joined by Chief Justice Deba Todd and Justices Christine Donohue, Kevin Dougherty, David Wecht, P. Kevin Brobson and Daniel McCaffery.

Commissioner John Sobel, an attorney, said the Supreme Court decision is the final word on the issue.

He feels it would be a waste of time and resources to possibly appeal the ruling before the U.S. Supreme Court.

“Unfortunately the taxpayers had to pay $3.8 million for something that wasn’t their fault,” he said.

He said he doesn’t agree with how the situation has turned out, but doesn’t feel the county has any additional forum to appeal to at this point.

He said he will study the opinion and predicted the board will discuss the issue at its next meeting.