Most public owners are aware, if not of the name, at least of the concept of the doctrine nullem tempus occurit regi; or in its translated form “time does not run against the king.” This doctrine refers to the legal precept that the statute of limitations cannot be applied against a public entity. Consequently, on a construction project involving a school district or other public entity, the statute of limitations for assertion of claims is inapplicable. While this prevents a public owner from losing the right, by operation of law, to assert a cause of action emanating from a construction project, it does not prevent a public owner from limiting its rights, by way of contract, to assert claims after a designated period of time. This distinction was most recently addressed in the case of Wilson Area School District v. Skepton before the Court of Common Pleas of Northampton County.

In the Skepton case, the school district filed an action against its general contractor’s surety, pursuant to the performance bond issued by the surety, based upon defects discovered in the construction of a school building. The language of the performance bond limited the surety’s obligations to correct defects to those which developed within one year of completion of acceptance of the project. The district commenced the action after the expiration of this time period. Consequently, the court granted summary judgment in favor of the surety, dismissing the school district’s claims.

The school district attempted to argue that the time limitation set forth in the bond was akin to a statute of limitations period, and therefore did not apply to the school district pursuant to the doctrine of “time does not run against the king.” The court, however, while recognizing the application of the doctrine to school districts, emphasized that the doctrine is waivable by the public entity. Furthermore, the court emphasized that parties may contractually restrict or limit their ability to assert claims after a certain period of time.

Based on the above, school districts and other public owners should be aware that, while there are certain legal protections that exist to their benefit, those legal protections may be subject to a waiver by way of contract provisions. Consequently, a careful review of contract documents is critical to ensure that all necessary protections are in place.

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Mr. Winfield is the Administrative Chair of Rhoads & Sinon LLP’s Construction Law Group. If you have questions regarding a planned or existing public project, or have suggestions for future article topics, you may reach Mr. Winfield at (717) 237-6703, or by e-mail at mwinfield@rhoads-sinon.com.

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