HARRISBURG – The doctrine of nullum tempus occurrit regi, translated literally as “time does not run against the king,” was recently invoked by the state Commonwealth Court in the case of Township of Salem v. Miller Penn Development, LLC.
The Commonwealth Court upheld the previous ruling of the Westmoreland County Court of Common Pleas in awarding the Township of Salem damages for Miller Penn’s alleged breach of contract and violation of a city ordinance.
Miller Penn constructed a development of 22 single-family residential lots within Salem. Miller Penn entered into a contract stating it would comply with all applicable township ordinances.
In constructing a subdivision road and cul-de-sac in the development, Miller Penn violated a township ordinance (Ordinance 101) that requires certain specifications in road construction.
The township became aware of this breach in 2002 but did not file the lawsuit against Miller Penn until 2010. This was multiple years after the timeframe given in the statute of limitations.
Miller Penn pointed to the statute of limitations, but the Commonwealth Court upheld the trial court’s ruling on the basis of nullum tempus occurrit regi.
The opinion of the court, written by Judge James Colins states, “for the nullum tempus doctrine to exempt a municipality from the statute of limitations, the municipality’s claims must both 1) accrue to the municipality in its governmental capacity and 2) seek to enforce an obligation imposed by law, as distinguished from one arising out of a voluntary agreement.”
In the Miller Penn case, it is the township’s public and lawful duty to enter into contract to maintain public roads, as well as to uphold local ordinances as established in the Pennsylvania Municipalities Planning Code. As a result, it is exempt from the statute of limitations, according to the court.
“Ensuring the adequate construction of streets is a purely public purpose within a municipality’s obligations to its citizens, not a mere voluntary contractual undertaking,” Colins wrote.
Why did it take the Township of Salem so much time to file the lawsuit against Miller Penn?
Matthew Erlanger, associate at Cohen Seglias Pallas Greenhall & Furman PC, co-author of “It's Good to be King,” an article covering the case, told the Pennsylvania Record that “the township did not file its lawsuit until after the road had deteriorated and was in need of repair.”
In such cases, the government or municipality will often wait several years to gain evidence and assess damages to determine if it is worthwhile to file a lawsuit, Erlanger said.
Cases in which nullum tempus has been invoked are quite uncommon. State courts have issued fewer than 100 opinions discussing nullum tempus, and fewer than 50 of those have involved local governments, as in the Miller Penn case, Erlanger said.
This is understandable, as most cases are likely filed prior to the statute of limitations coming into effect.
The capability awarded governments under nullum tempus is unique. Although some might see it as unfair, nullum tempus allows governments to preserve public rights, revenues and property from loss.
It has not faced much push-back from possible reformers. As Erlanger said, “it has been recognized that all citizens, even those seeking to invoke the statute of limitations, are benefited by nullum tempus in that it allows for the recoupment of public funds.”