Is Section 7512 of the Home Inspection Law a statute of repose?
Gidor v. Mangus, 2024 WL 80950 (Pa. Super) (unreported), allocatur granted July 23, 2024, appeal docket 21 WAP 2024
In this case, the Pennsylvania Supreme Court will consider whether Section 7512 of the Home Inspection Law, 68 Pa.C.S. § 7512, which provides that “[a]n action to recover damages arising from a home inspection report must be commenced within one year after the date the report is delivered,” is a statute of repose.
Mary Joan Gidor (Plaintiff) hired Benjamin E. Mangus (Defendant) to conduct a home inspection of a property she intended to purchase. Mangus completed the inspection and delivered the report to Gidor on delivered the report to Gidor on June 6, 2017. Relying on this report, Gidor purchased the property on July 31, 2017. During plumbing repairs in early 2019, Gidor discovered significant structural defects that were not disclosed in the inspection report, including sections of the house constructed without a foundation and damaged heating ducts.
Gidor filed a lawsuit against Mangus on August 21, 2019, asserting claims under the Home Inspection Law, breach of contract, and the Unfair Trade Practices and Consumer Protection Law. Mangus moved for judgment on the pleadings, arguing that Gidor’s claims were barred by the one-year statute of repose in Section 7512 of the Home Inspection Law, as the lawsuit was initiated more than a year after the inspection report was delivered. In opposition, Gidor responded that her claims are not barred because Section 7512 is a statute of limitations that is tolled by the discovery rule and that even if it is a statute of repose to which the discovery rule does not apply, Section 7512 only applies to her cause of action under the Home Inspection Law. The trial court denied Mangus’s motion for judgment on the pleadings. Mangus sought interlocutory appeal, which Superior Court granted.
Superior Court reversed the trial court’s decision, holding that Section 7512 is a statute of repose that bars any action to recover damages arising from a home inspection report if not commenced within one year after the report’s delivery. Consequently, since Gidor filed her lawsuit more than two years after receiving the inspection report, the court found all of Gidor’s claims were time-barred, concluding that:
This statute is a statute of repose that bars actions filed more than one year after the delivery of the inspection report and is not subject to the discovery rule. Tibbitt v. Eagle Home Inspections, LLC, ––– A.3d ––––, ––––, 2023 PA Super 219, slip op. at 6-7 & n.3 (Pa. Super. filed October 30, 2023). Moreover, this one-year statute of repose applies to all causes of action seeking damages based on an allegedly faulty inspection report, including common law causes of action and claims under the UTPCPL. Id. at ––––, slip op. at 2-3, 8.
The pleadings in this action established that there is no dispute that Plaintiff’s action was filed more than one year after Defendant’s home inspection report was delivered. Answer and New Matter ¶¶43, 55-56; Reply to New Matter ¶¶43, 55-56. Under Tibbitt, the discovery rule does not apply and Section 7512’s statute of repose applies both to causes of action under the Home Inspection Law and to common law and UTPCPL causes of action arising from a home inspection report. ––– A.3d at ––––, slip op. at 2-3, 6-8 & n.3. All of Plaintiff’s claims in this action arise out of Defendant’s inspection report. Amended Complaint ¶¶22-39. Plaintiff’s action is therefore time-barred in its entirety by Section 7512. Tibbitt, ––– A.3d at ––––, slip op. at 7-8. Indeed, this case is indistinguishable from Tibbitt. [fn. 1]
[fn. 1] Plaintiff argues that Section 7512 must be construed as a statute of limitations subject to the discovery rule because construing it as a statute of repose would raise issues as to whether it is constitutional under the Remedies Clause of the Pennsylvania Constitution, Pa. Const. Art. I, § 11. Appellee’s Brief at 18-22. That does not make this case distinguishable from Tibbitt. While this Court did not rule in Tibbitt on whether Section 7512 is unconstitutional under the Remedies Clause because it found the issue waived, Tibbitt, ––– A.3d at ––––, slip op. at 8, Plaintiff’s argument is not a challenge to the constitutionality of Section 7512. Rather, it is an argument in favor of construing Section 7512 as a statute of limitations, which we cannot consider because we are bound by Tibbitt’s holding that Section 7512 is a statute of repose and not a statute of limitations. Moreover, if Plaintiff were asserting a constitutional challenge to Section 7512, it would be waived just as it was in Tibbitt because there is nothing in the record showing that Plaintiff notified the Attorney General of Pennsylvania that she is challenging the constitutionality of Section 7512. Pa.R.A.P. 521(a); Tibbitt, ––– A.3d at ––––, slip op. at 8; Hill v. Divecchio, 625 A.2d 642, 648 (Pa. Super. 1993).
Slip op. at 4-5.
The Pennsylvania Supreme Court will consider the following issue:
Whether the Superior Court erred by construing Section 7512 of the Home Inspection Law, 68 Pa.C.S. § 7512, as a statute of repose, which barred all claims raised in Petitioner’s amended complaint, as opposed to a statute of limitations.