Lawfully Constructing or Lawful Construction: A Question for Another Court


By: Brittany Kurtz and William H. Catto

The Pennsylvania Superior Court kicked the can down the road on deciding recent contentions regarding the Statute of Repose defense that many general contractors and subcontractors rightfully assert in the voluminous stucco litigation occurring throughout the country and the Commonwealth. The competing interpretations of the Statute of Repose are keeping alive many faulty stucco installation matters, which could otherwise be dismissed based upon the defense. Pennsylvania’s legislature enacted a statue of repose related to new construction which bars recovery against any person lawfully performing or furnishing the design, planning, supervision or observation or construction of any improvement to real property unless brought within twelve (12) years after the completion of construction. 42 Pa. C.S.A. §5536.

In Calabretta v. Guidi Homes, Inc., a builder and seller moved for summary judgment against some of the homeowners on the basis their construction defect claims were barred by the Statute of Repose as the building took place more than twelve years prior. The trial court denied the builder and seller’s motion. The court stated that the current state of law is “somewhat unclear” as to the term “lawfully” within the statute and that a genuine issue of material fact exists as to whether the homes were constructed “lawfully.” The legislature and judiciary have not yet weighed in as to whether the term “lawfully” requires compliance with (1) all prerequisites necessary to obtain municipal permission to engage in various activities mentioned with the statute or (2) all local and state ordinances, regulations, and statutes. Instead of shining a light on this dilemma, the Superior Court determined it lacked jurisdiction to address the question at this time since the denial against some of the homeowners was not clearly separable from the main action nor would trial constitute irreparable harm to the builder and seller as required for a collateral order to be appealable.

Despite the Superior Court not yet addressing directly the meaning of “lawfully,” they did appear to indicate that “lawfully” is a factual determination. The Court points out that regardless of the definition of “lawfully,” evidence is required to demonstrate either the home was built with all appropriate permits in place or the home was built and complied with all building codes, statutes and regulations at the time. The homeowners in this matter produced an expert report which opined the home was not constructed in compliance with certain building codes, thus demonstrating a material issue of fact. 

As stucco litigation in Pennsylvania continues on, it appears the higher courts are not yet ready to provide clear direction as to a strong defense provided by the state’s legislature. 

If you have questions or would like more information, please contact Brittany Kurtz at or William Catto at

[1] Calabretta v. Guidi Homes, Inc., 2020 Pa. Super. 251 (Pa. Super. Ct. Oct. 19, 2020).