Does “period of limitation” in Pennsylvania “borrowing” statute include foreign jurisdiction statutes of repose?

Kornfeind v. New Werner Holding, 241 A.3d 1212 (Pa. Super. 2020), allocatur granted Oct. 5, 2021, appeal docket 30 EAP 2021

In this case, the Supreme Court will consider, as matter of first impression, whether the phrase “period of limitation,” as used in Pennsylvania’s “borrowing statute,” encompasses statutes of repose of foreign jurisdictions.

Pennsylvania’s “borrowing statute” provides as follows.

5521. Limitations on foreign claims

(a) Short title of section. — This section shall be known and may be cited as the “Uniform Statute of Limitations on Foreign Claims Act.”

(b) General rule. — The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.

(c) Definition. — As used in this section “claim” means any right of action which may be asserted in a civil action or proceeding and includes, but is not limited to, a right of action created by statute.

42 Pa.C.S. § 5521 (emphasis added by Superior Court).

Kornfeind, a resident of Illinois, fell off a ladder, which was manufactured in Illinois, and was severely injured. Kornfeind filed suit against New Werner Holding Co., Inc.’s (New Werner), the Pennsylvania-based successor of the ladder manufacturer, based on a strict liability theory.  Illinois has a statute of repose regarding product liability, but Pennsylvania does not have an analogous statute. New Werner argued that, under Pennsylvania’s borrowing statute, Illinois’s statute of repose applied. The parties agreed that if Illinois’s statute of repose applied, Kornfeind’s strict product liability claims would be time-barred. The trial court held that Illinois statute of repose did not apply, reasoning as summarized by Superior Court:

…“as a matter of law,” the borrowing statute “is explicitly limited to statutes of limitations and does not include statutes of repose.” Trial Court Opinion, 9/24/2019, at 5. The trial court found the language of the borrowing statute to be “clear” and applicable only to statutes of limitation, emphasizing that the “very title of the Pennsylvania law, the ‘Uniform Statute of Limitations on Foreign Claims Act,’ precludes its application to statutes of repose.” Id.citing 42 Pa.C.S. § 5521(a) (emphasis in original). According to the trial court, “the intent of the [borrowing statute] is to prevent forum shopping for a jurisdiction that affords greater rights or a longer statute of limitations, not to dismiss cases that were timely filed with the statutes of limitations of both states.” Id. at 6.

Slip op. at 10. New Werner appealed to Superior Court.

Superior Court acknowledged that the term “period of limitation” in Pennsylvania’s borrowing statute is broad enough to encompass both statutes of limitation and statutes of repose insofar as both provide temporal limitations on claims. However, Superior Court found that the statute was not ambiguous in context, particularly given the use of the term “Statute of Limitations” in the borrowing statute’s short title. Additionally, Superior Court observed that when a uniform law like Pennsylvania’s borrowing statute has ambiguous language, “this Court must consider the decisions of our sister states who have adopted and interpreted such uniform law and must afford these decisions great deference.” Slip op. at 19 (citations omitted). Thus, Superior Court found Oklahoma Supreme Court’s analysis of Oklahoma’s “substantively similar statute” to be persuasive, explaining that:

The Oklahoma court classified the Oklahoma borrowing statute as a “procedural law that applies to time periods that operate upon the remedy,” and reasoned that “[b]ecause Oklahoma categorizes statutes of limitation as procedural law that operate[ ] on plaintiff’s remedy and statutes of repose as substantive law that destroys plaintiff’s right to recover damages in a cause of action …. [T]he phrase ‘period of limitation’ in Oklahoma’s borrowing statute” did not include the statute of repose at issue therein. Consolidated Grain, 212 P.3d at 1175-76. The Oklahoma Supreme Court also noted the borrowing statute’s reference to the statute of limitations in the title and the reference to accrual. Id. The court explained that in Oklahoma, “[a]ccrual is a condition that triggers an ordinary statute of limitation, affecting the remedy and not the right to a cause of action.” Id. at 1175. It concluded that, in context, Oklahoma’s borrowing statute intended “to provide a time period that operates on the remedy and not on the right to an action for damages.” Id.

Like Oklahoma, Pennsylvania views statutes of limitations as procedural laws that bar a party’s right to a remedy, and statutes of repose as substantive laws that “wholly extinguish a party’s cause of action upon the expiration of the time period.” City of Philadelphia v. City of Philadelphia Tax Review Bd. ex rel. Keystone Health Plan East, Inc., 635 Pa. 108, 132 A.3d 946, 952 (2015). Accordingly, we find the Oklahoma Supreme Court’s analysis of Oklahoma’s substantively similar statute to be persuasive, and the similarities to Pennsylvania law further convince us the Pennsylvania legislature intended the phrase “period of limitation” in Pennsylvania’s borrowing statute to include only statutes of limitations, not statutes of repose.

Slip op. at 21-22.

The Supreme Court granted allocatur limited to the following issue:

Does the phrase “period of limitation” in Pennsylvania’s borrowing statute, 42 Pa.C.S. § 5521, encompass statutes of repose of foreign jurisdictions?


For more information, contact Kevin McKeon or Dennis Whitaker.