dissenting.
I dissent from the Majority’s decision that the doctrine of nullum tempus occurrit regi applies to the factual circumstances in the matter sub judice. Courts of this Commonwealth have long recognized the doctrine and generally apply it to cases where the Commonwealth is seeking as a “plaintiff’ to vindicate public rights and to protect public property — i.e., is acting in a governmental vs. a proprietary function. See City of Philadelphia v. Holmes Electric Protective Co. of Philadelphia, 335 Pa. 273, 6 A.2d 884 (1939) (held that the City sued not to compel performance of a duty imposed by law or to assert a governmental power, but merely to enforce a contractual obligation assumed by the defendant to pay annual rental for use of space under municipal streets); In re Asbestos School Litigation, 768 F.Supp. 146 (E.D.Pa.1991) (held that although plaintiff school districts’ suits were to recover damages for injury to school district property, plaintiffs were not acting in exclusively governmental function but were *308instead seeking recovery for alleged tortious acts just as any private litigant with standing could do, thus defeating the doctrine of nullum tempus, citing among other cases, Borough of West Fairview v. Hess, 130 Pa. Commonwealth Ct. 385, 568 A.2d 709 (1989)). See discussion in dissenting opinion in Northampton County Area Community College v. Dow Chemical, U.S.A., 528 Pa. 502, 598 A.2d 1288 (1991) (per curiam) (Papadakos, J.).
The record here demonstrates that the Commission is not acting in its governmental function as a plaintiff to vindicate a strictly public right or one imposed by law, or to assert a governmental power. Rather, the Commission has counterclaimed Mognet and Penn Eastern as alleged tortious actors to recover $6,995.45 in property damage to turnpike property. Hence, the Commission’s claim is not distinguishable from that which any private litigant having standing could assert against the alleged actors, and since the Commission had a full two years to file its claim against Mognet and Penn Eastern, the counterclaim filed five months after the applicable two-year statute of limitations is time-barred. See also Harmer v. Hulsey, 321 Pa. Superior Ct. 11, 467 A.2d 867 (1983), relied upon by the trial court.
Moreover, the Supreme Court has explicitly stated that despite their common origins, the doctrines of nullum tempus and sovereign immunity have been consistently recognized as distinct, Department of Transportation v. J.W. Bishop & Co., 497 Pa. 58, 64, 439 A.2d 101, 104 (1981), thus allowing for different considerations in application. No language in Guinn v. Alburtis Fire Co., 531 Pa. 500, 614 A.2d 218 (1992), an immunity case, nor other cases cited by the Majority, rejects the distinctions made by courts between the doctrines of nullum tempus and soverign immunity and no authority exists for this Court to rule otherwise.
Another factor overlooked by the Majority is that the nullum tempus doctrine is invoked where the Commonwealth “initiates” an action rather than “responds” in new matter to an action filed against the Commonwealth. The Pennsylvania *309Rules of Civil Procedure distinguish between “institution” 1 of an action as opposed to the filing of a “counterclaim” and therefore, it is apparent that the Commission has not demonstrated satisfaction of even a threshold burden to show that it has “instituted” as plaintiff an action to enforce strictly public rights or obligations imposed by law. Holmes Electric. Indeed, none of the cases relied on by the Majority or otherwise referenced in researching the nullum tempus doctrine indicate that it can be applied in any context other than the initiation of an action by the Commonwealth as plaintiff. I would therefore absolutely refrain from applying the nullum tempus doctrine to the Commission’s counterclaim and would affirm its dismissal by the trial court because it was filed beyond the applicable two-year statute of limitations.
. A civil action is commenced by the filing of a praecipe for writ of summons or a complaint and a counterclaim is raised by a defendant in answer to an action against the defendant in assumpsit or trespass. Pa. R.C.P. Nos. 1007, 1031.