Commonwealth, Department of Transportation v. J. W. Bishop & Co.

Opinion by Judge Craig, The Commonwealth of Pennsylvania, through the Department of Transportation, has brought these two separate actions in trespass against defendants George H. Overmoyer and J. W. Bishop & Company, Inc. to recover damages for the collapse of state bridges, allegedly caused by defendants’ overweight vehicles. We have consolidated the cases for consideration because both turn upon the same issue. The pleadings on their face make clear that the state filed its action against defendant J. W. Bishop & Company, Inc. 6 years and 11 months after the cause of action arose and against defendant Overmoyer 8 years and 4 months after the occurrence. On the basis of the six-year statute of limitations pertaining generally to property damage actions,1 one defendant has moved for summary judgment and the other for judgment on the pleadings. The Commonwealth, not disputing that the question is one of law only, claims that it is immune from the bar of the statute of limitations, citing the leading case of Frey’s Estate, 342 Pa. 351, 21 A.2d 23 (1941), as well as others, including, e.g.,. Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958). Our conclusion is that, under Pennsylvania jurisprudence to — 380 — day, the Commonwealth is no longer exempted from compliance with statutes of limitations by the doctrine of nullum tempus occurrit regi. Although that judicial doctrine is thus labeled by a maxim which translates “Time does not run against the king”,2 Commonwealth v. Baldwin, 1 Watts 54, 54-5 (1832) ruled that, in the land of William Penn, the doctrine has stemmed, not from the dignity of royalty, but from the trusteeship aspect of the kingly prerogative of government. Nevertheless, we perceive that the death of the kingly prerogative of the state was pronounced by the Pennsylvania Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). In Mayle, our Supreme Court discarded the judicial doctrine of sovereign immunity because it irrationally made justice depend upon the status of one party, and because, without it, the state can be expected to be more efficient. We cannot deny the relevance of these same considerations to the abolition of nullum tempus.3 The function of a statute of limitations, in barring stale claims after ample time has been afforded to pursue them, is a function which promotes justice. Insurance Company of North America v. Carnahan, — 381 — 446 Pa. 48, 284 A.2d 728 (1971). The foundation of a statute of limitations is the duty of litigants to pursue litigation with reasonable diligence so that the system is not impaired in its operation. In Schmucker v. Naugle, 426 Pa. 203, 205-6, 231 A.2d 121, 123 (1967) the Pennsylvania Supreme Court stated: Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Thus, given that our system of justice is enhanced by barring lax plaintiffs from pursuing personal injury claims after two years and property damage or contract claims after six years, the fact that the laxity is on the part of the Commonwealth’s agents does not affect the applicability of the principle.4 By the same token, delay in litigation can produce an unjust imposition as much when the plaintiff is the state as when it is a private party. The person against whom the right is to be enforced might be greatly prejudiced by plaintiff’s delay. Witnesses disappear or remove to distant parts and the entire aspect of the par — 382 — ties on both sides may change with the lapse of time. Ulakovic v. Metropolitan Life Insurance Co., 339 Pa. 571, 575, 16 A.2d 41, 42-3 (1940). Because such concerns exist independently of the status of the plaintiff, a distinction based on the Commonwealth’s status is invidious. The rule that laches can bar the Commonwealth, Stahl v. First Pennsylvania Banking & Trust Co., 411 Pa. 121, 191 A.2d 386 (1963), rather than providing a reason for preserving nullum tempus, actually provides support for the view that the state, like other litigants, should also be subject to the statutory expression of the same policy which laches embodies. On the point of spurring efficiency, perpetuation of nullum tempus simply condones official sloth. It is not persuasive to argue that the Commonwealth’s officers are so “occupied by the cares of government”5 that they cannot attend to the cares of government, i.e., take the steps necessary to institute suit within a period of years after a cause of action has arisen. There is no fundamental distinction between viewing the state as defendant under the sovereign immunity doctrine and perceiving the state as plaintiff under nullum tempus. That duality constitutes just two sides of the same coin, the issue of whether or not the state as litigant shall have a status immune to the considerations which govern judicial policies as to litigation. This court has heretofore recognized the interrelationship between sovereign immunity and nullum tempus. In General State Authority v. Kline, 29 Pa. Commonwealth Ct. 232, 370 A.2d 402 (1977) we held that the General State Authority should have the benefit of nullum tempus precisely because it was shielded on the other side by sovereign immunity, stating: — 383 — It is a general rule that the Commonwealth as a sovereign is not subject to the statute of limitations. Moreover, we have previously held on several occasions that the GrSA is an authority of the Commonwealth and as such is entitled to the shield of sovereign immunity. We believe, therefore, that the statute of limitations does not apply to actions brought by the GrSA and that the complaint was not untimely. (Citations omitted.) Id. at 235, 370 A.2d at 403-4. In Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa. Commonwealth Ct. 212, 375 A.2d 890 (1977), aff’d 482 Pa. 615, 394 A.2d 491 (1978) we linked the two concepts even more closely, stating: However, when our Supreme Court held in Specter, supra, that the Commission was distinct as an entity separate and apart from the Commonwealth to such an extent that it could not ‘share the attributes of sovereignty which inhere in the state’, 462 Pa. at 493, 341 A.2d at 491 (emphasis added), we believe it implicitly also removed from the Commission that attribute of sovereignty which shielded it from the running of time. The rationale and policy underlying Specter, supra, are equally applicable here — particularly as the concept of nullum tempus occurrit regi is not of constitutional dimensions as is sovereign immunity. Id. at 216, 375 A.2d at 892. Thus we noted the intertwined relationship of the two doctrines and the sole distinction — that nullum tempus lacks the constitutional source from which sovereign immunity springs in Pennsylvania. Not mentioned in our constitution or expressed in statute, nullum tern-pus instead was “adopted in our jurisprudence.” Commonwealth v. Musser Forests, Inc., 394 Pa. 205, — 384 — 218, 146 A.2d 714, 720 (1958); Frey’s Estate, supra, at 353, 21 A.2d at 24. The non-legislative origin weakens the argument for milium tempus based on the legislature’s failure expressly to name the Commonwealth as subject to the statute of limitations. The judicial parentage of the doctrine suggests that the courts need not await legislative action. Our earlier decision on preliminary objections in one of these cases, Commonwealth v. J. W. Bishop & Co., 29 Pa. Commonwealth Ct. 285, 370 A.2d 747 (1977), antedated Mayle, supra, decided July 14, 1978, and would therefore seem to be no longer the law of the case. We note that Mayle has been explicitly held to be applicable retrospectively, Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980). Accordingly, we will grant the motions of both defendants and enter judgment for defendant in each case. Order in 817 C.D. 1976 Now, December 17, 1980, defendant’s motion for judgment on the pleadings is granted and judgment in favor of defendant is hereby entered. Order in 1757 C.D. 1977 Now, December 17, 1980, defendant’s motion for summary judgment is granted and judgment in favor of defendant is hereby entered. Footnotes [1] Section 1 of the Act of March 27, 1713, 1 Sm.L. 76, -formerly 12 P.S. §31, repealed by the Act of April 28, 1978, P.L. 202, §2(a), 42 P.S. §20002(a) [9]. The present Judicial Code provision is 42 Pa. C. S. §5527, [2] Black’s Law Dictionary 963 (5th ed. 1979). [3] Although the late Justice Manderino, dissenting in Department of Transportation v. Bethlehem Steel Corp., 486 Pa. 186, 194, 404 A.2d 692, 697 (1979), objected to tbe Bethlehem Steel majority’s refusal to re-examine nullum tempus in that case, the Supreme Court, in declining to decide the question at that point, was not necessarily negating the view there asserted by Justice Manderino, that “Mayle meant what it said — the king is dead.” In Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 620 n. 2, 394 A.2d 491, 494 n. 2 (1978), holding the Turnpike Commission subject to the statute of limitations because it does not share the Commonwealth’s sovereignty, the Supreme Court likewise understandably stated that there was no need there to decide whether Frey's Estate, supra, survives after Mayle, supra. [4] To say that the citizens of the Commonwealth should not suffer loss because their servants fail to pursue claims within the prescribed time is not persuasive; we subject fiduciaries and all manner of other agents to the statute of limitations, even though their neglect imposes loss upon their beneficiaries and principals, who must then find their recourse against the neglectful ones. Trustees of Properties of Kingston v. Lehigh Valley Coal Co., 241 Pa. 469, 88 A. 763 (1913). [5] Gibson v. Chouteau, 80 U.S. (13 Wallace) 92, 99 (1871).