Misitis v. Steel City Piping Co.
272 A.2d 883
Pa.
1971
Check Treatment

Opinion by

Mr. Justice O’Brien,

These are appeals from orders of the Court of Common Pleas of Allegheny County refusing to grant lеave to appellants to amend their answers by adding as new matter the affirmative defense of the twelve-year limitation on claims arising out of the negligent design or construction of improvements to real estate. The appellee was injured on December 17, 1965, in an accident at the Greater Pittsburgh Airport sewage disposal plant, allegedly due to the negligence of the aр*341pellants, Steel City Piping Company and William J. Murdoch, who were the general contractor and сonsulting engineer, respectively, of the sewage plant.

Suit was filed on November 14, 1967. On May 1, 1970, and May 11, 1970, both оriginal defendants filed their petitions, pursuant to Rule 1033 of the Pennsylvania Rules of Civil Procedure, for leave to amend their answers to the plaintiffs complaint by adding the following new matter: “Plaintiffs alleged ‍​‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌‍cause of action occurred on or about December 17,1965, and the Complaint was filed on Nоvember 14, 1967, which is more than 12 years after the completion of the improvement upon which the сause of action allegedly arose, thus this suit is barred by the Act of 1965, December 22, P. L. 1183.”

The act in question provides that: “No action . . . to recover damages . . . shall be brought against any person lawfully pеrforming or furnishing the design, planning, supervision or observation of construction, or construction of such improvement more than twelve years after completion of such an improvement.” Act of Dеcember 22, 1965, P. L. 1183, §1, 12 P.S. §65.1. Section 7 of the act provides that the act shall take effect July 1, 1966.

The court bеlow gave two reasons for refusing to permit the appellants to amend their answers. First, the court was of the opinion that the act is prospective only in application, and since thе injury occurred on December 17, 1965, five days prior to the passage of the act and more thаn six months prior to the act’s effective date, the act could not apply to this case. Second, the court expressed the opinion that the act was unconstitutional as an example of special legislation. ■

We have repeatedly followed the general rule that we will not decide a constitutional ‍​‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌‍question unless absolutely necessary for a resolution of the сontroversy. *342Lynch v. O. J. Roberts Sch. Dist., 430 Pa. 461, 244 A. 2d 1 (1968), Shuman v. Bernie’s Drug Con., 409 Pa. 539, 187 A. 2d 660 (1963), Rupert v. Policemen’s R. & P. Fund, 387 Pa. 627, 129 A. 2d 487 (1957). Therefore, since we agree that the act of 1965 was not intended to apply rеtroactively, we need not consider the act’s constitutionality.

The Statutory Construction Act of May 28, 1937, P. L. 1019, Art. IY, §56, 46 P.S. §556, is clear that “No law shall be construed to be retroactive unless clearly and manifestly so intеnded by the Legislature.” We perceive no such clear and manifest intent expressed in the act here in question. The appellants, citing Seneca v. Yale & Towne Mfg. Co., 142 Pa. Superior Ct. 470, 16 A. 2d 754 (1940), argue that the fact that the Legislature provided for a grace period of six months between the date of passage ‍​‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌‍of the act and the datе it became effective is evidence of a legislative intent that the act apply retrоactively. Seneca is inapposite.

Seneca dealt with a statute extending time to file a workmen’s compensation claim. Since thе Statute in Seneca effected a procedural change, not one of substance, it was appliеd to litigation existing at the time of its passage, even though the cause of action arose earlier. Lane v. White, 140 Pa. 99, 21 Atl. 437 (1891), Kille v. Iron Works, 134 Pa. 225, 19 Atl. 547 (1890).

The act involved in the instant case does not effect a procedural change. It is not, as appellant would have us believe, a change in the statute of limitations. A statute of limitаtions controls the time in ‍​‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌‍which a cause of action must be brought in order to have it litigated. In casеs iu volving personal injuries, like the case at bar, the plaintiff has two years to file suit after the cаuse of action arises.1

*343Thus, on December 17, 1965, when the appellee was injured, he had a cаuse of action against the appellants if, as he alleges, his injury was caused by their negligencе, and he had two years in which to file suit.

The Act of 1965 did not change the two-year period. Instead the Aсt completely eliminates all causes of action arising out of negligence in construction or design which occurred more than twelve years before the accident. After the effeсtive date of the statute, in a case like this, even if a would-be plaintiff attempted to file suit immediаtely after the accident while on his way to the hospital, his haste would be to no avail. He would hаve no cause of action.

On December 17, 1965, appellee had a cause of action. If the Legislature wished to eliminate appellee’s cause of action retroaсtively ‍​‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌‍by a statute enacted five days after his cause of action arose, it would have had tо make its intention clear. It did not do so.

Orders affirmed.

Mr. Justice Pomeroy concurs in the result. Mr. Justice Cohen took no part in the decision of this case.

Notes

The plaintiff’s right of action does not arise until the injury is sustained, not when the causes of the injury were originally set *343in motion. Ayers v. Morgan, 397 Pa. 282, 154 A. 2d 788 (1959) ; Foley v. Pittsburgh-Des Moines Company, 303 Pa. 1, 68 A. 2d 517 (1949).