Freezer Storage, Inc. v. Armstrong Cork Co.

MANDERINO, Justice,

dissenting.

I dissent. The Act before us constitutes a violation of the prohibition against special legislation of Article III, section 32 of the Pennsylvania Constitution.

The majority opinion goes to great lengths to establish that there are “real distinctions” between those covered by the Act of 1965 and those who are not so covered. Real distinctions can be outlined as to many classifications.. There is a real distinction between Protestants and Catholics, between the rich and the poor and between the short and the tall. These real distinctions, however, are not *283sufficient to give one class a privilege which is denied to others. The test must be whether, granting that real distinctions exist, those distinctions provide a valid basis for discriminatory treatment. I cannot agree that the discrimination of the Act of 1965 is constitutional.

The Act of 1965 is similar in many respects to legislation existing in some thirty jurisdictions designed to limit the time in which an action may be brought against those involved in the design, planning, and construction of improvements to real property. See, Comment — Limitation of Action Statutes for Architects and Builders — Blueprints for Non-action, 18 Cath.U.L.Rev. 361 (1969). Such legislation has survived constitutional challenge in some of these jurisdictions; see for example, Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972); Yakima Fruit and Cold Storage Co. v. Central Heating and Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972); Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); and succumbed on various grounds in others; see for example, Skinner v. Anderson, 38 Ill.2d 455 (1967); Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568 (1973).

Article III, section 32 reads in relevant part as follows: “The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law.

In DuFour v. Maize, 358 Pa. 309, 313, 56 A.2d 675, 677 (1948), we stated the general rule in connection with Art. III, section 32 (then Art. III, section 7), as follows (quoting from Seabolt v. Commissioners, 187 Pa. 318, 41 A. 22 (1898)):

“Legislation for a class, distinguished from a general subject is not special, but general; and classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones, used for the purpose of evading the constitutional prohibition. If the distinctions are genuine, the courts cannot declare the classification void, though they may not con*284sider it to be on a sound basis. The test is not wisdom, but good faith in the classification.”

The legislative history indicates that the purpose of the Act of 1965 is to protect architects, engineers, and contractors “from accusations of professional failure long after [an] engagement is complete.” The twelve year period was chosen because “after this period of time, it becomes exceedingly difficult, if not impossible, to provide a proper and complete defense against allegations which may be brought against him.” Legislative Journal-House, pp. 2343-44 (Remarks of Rep. Membus). Given this purpose, however, the Act violates Art. Ill, sec. 32 because it distinguishes between architects, engineers, and contractors on the one hand, and other persons such as owners, manufacturers, distributors, suppliers, and sellers, who are similarly situated, on the other. The statutory purpose of providing protection against claims long after the completion of construction rationally applies to the second category who make improvements to real estate as well as the first. Yet, those in the second category are not included within the class protected by the statute. A statute may not arbitrarily limit a class.

Armstrong suggests no reason for so excluding any persons other than owners. Armstrong asserts that owners, at least, are rationally excluded in order to encourage them to supervise and maintain their premises. Typically, however, when twelve years have elapsed after completion of an improvement, the owner is in no better position to defend against a lawsuit than one making the improvement since the owner, who has a real interest in doing so, nevertheless discovered no problems for twelve years. In short, owners as well as those making improvements have the same need of the benefits of the Act of 1965. There is thus no reasonable relationship between the legislative classification and the legislative purpose.

This position was adopted by the Illinois Supreme Court in Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967). Skinner held a similar statute unconstitutional in violation of a comparable provision of the Illinois constitution:

*285“The effect of section 29 of the Limitations Act is to grant to architects and contractors a special or exclusive immunity. To justify it the defendant asserts that its ‘purpose is to require the necessary litigation to be brought within a time when the circumstances can still be proven, when investigation is still possible, when facts are still assessable, when proofs are not lost, when memories are still fresh. In short, when a trial can still result in fair outcome for both parties.’ And he also argues that ‘statutes are not unconstitutional as denying equal protection of the law merely because they affect one class and not another provided they affect all members of the same class alike.’
If, as the defendant suggests, the objective of the statute is to require that trials of actions based upon defects in construction be held within a relatively short time after the work is completed, that objective is achieved only partially, and in a discriminatory fashion. If the damage or injury occurs at any time within four years after construction is completed, the time within which the action must be commenced is governed by other statutory limitations. In such cases the time between completion of construction and the required institution of suit may well exceed four years.
More important is the fact that of all those whose negligence in connection with the construction of an improvement to real estate might result in damage to property or injury to person more than four years after construction is completed, the statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact responsible. Not only is the owner or person in control given no immunity; the statute takes away his action for indemnity against the architect or contractor.
*286The arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed a cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And so it is with all others who furnish materials used in constructing the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted. It can not be said that the one event is more likely than the other to occur within four years after construction is completed.”

Armstrong contends that Skinner is inapposite because the statute held invalid there barred actions brought more than four years after the completion of construction whereas the Act of 1965 specified a twelve year period. This argument misperceives the issue. We are not passing on the legitimacy of the length of the statutory period, but rather on the legislative classification itself. The lack of a rational basis for the classification itself results in the constitutional infirmity.

The Supreme Court of Hawaii recently came to the same conclusion as to the arbitrary and capricious nature of the legislative classification in Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568 (1973). In discussing a statute similar to ours, the Hawaii Supreme Court said:

“Stated another way, the cause of the injuries is the same, the plaintiff is the same and the injuries are the same — but under the statute the plaintiff may not recover from the engineer and the contractor even though the negligence of the engineer and the contractor may have been the sole proximate cause of the injuries suffered by the plaintiff. However, the plaintiff may recover damages from the owners, and the owners will have no right to have the engineer and the contractor reimburse or contribute to them the amount of damages they are *287required to pay the plaintiff. We are unable to see any rational basis for treating the engineer and the contractor differently from the owners under the same circumstances.
It is clear that the classification does not rest upon some reasonable consideration of differences (between the classes under the same circumstances), which have a fair and substantial relation to the object of the legislation. Nor is the classification founded upon a reasonable distinction or difference necessitated by state policy. A statute making such an unsupportable classification fails to meet the requirements of the equal protection guaranty.”

Armstrong argues further that the issue before us has previously arisen in the Supreme Courts of New Jersey, Washington, and Arkansas, all of which have specifically rejected the approach we follow. See Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972); Yakima Fruit and Cold Storage Co. v. Central Heating and Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972); and Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970). It is true the New Jersey Supreme Court, in Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972), stated that the favored class under the New Jersey statute there held valid was larger than architects, engineers, and building contractors and hence was neither special legislation nor violative of equal protection. The Act of 1965, too, seems to speak as broadly as the New Jersey statute. Nevertheless, as a practical matter, the statute primarily protects architects, engineers, and contractors, those in the business of making improvements to real estate. As reflected in the legislative history of this statute, they are the intended and actual beneficiaries. Furthermore, none of the cases cited by Armstrong, including Rosenberg, persuasively suggests any rational basis for distinguishing between architects, engineers, and contractors, on the one hand, and owners, manufacturers, distributors, suppliers and sellers on the other.

*288The unconstitutional portions of the Act of 1965 are not capable of separation from the rest of the statute, Statutory-Construction Act of 1972, 1 Pa.C.S.A. § 1925, State Board of Chiropractic Examiners v. Life Fellowship of Pa., 441 Pa. 293, 272 A.2d 478 (1971). Accordingly, the entire Act is invalid. We should reverse the order of the Superior Court affirming the order of the Court of Common Pleas of Allegheny County.

NIX, J., joins in this dissenting opinion.