Branton v. Nicholas Meat, LLC

• Decision Date: 04 April 2017
• Docket Number: No. 536 MDA 2016,536 MDA 2016
• Citation: 159 A.3d 540
• Parties: Kelly BRANTON; Shawn Branton; Mitchell Branton, a Minor, by Kelly Branton and Shawn Branton, Guardians; Lilly Branton, a Minor, by Kelly Branton and Shawn Branton, Guardians; Beck Branton, a Minor, by Shawn Branton, Guardian; Pat Courtwright; Philip Courtwright; Gary E. Johnson; Georgina B. Johnson; Carol Kline ; Richard Long; Ann McKean; Thomas J. McKean; Deborah A. Muthler; Stephen K. Muthler; Stephen P. Rice; Susan Rice; and Kim Shipman, Appellants v. NICHOLAS MEAT, LLC; Brett Bowes d/b/a Bowes Farm; Camerer Farms, Inc. ; and Jab Livestock, LLC., Appellees
• Court: Pennsylvania Superior Court

159 A.3d 540

Kelly BRANTON; Shawn Branton; Mitchell Branton, a Minor, by Kelly Branton and Shawn Branton, Guardians; Lilly Branton, a Minor, by Kelly Branton and Shawn Branton, Guardians; Beck Branton, a Minor, by Shawn Branton, Guardian; Pat Courtwright; Philip Courtwright; Gary E. Johnson; Georgina B. Johnson; Carol Kline ; Richard Long; Ann McKean; Thomas J. McKean; Deborah A. Muthler; Stephen K. Muthler; Stephen P. Rice; Susan Rice; and Kim Shipman, Appellants

v.NICHOLAS MEAT, LLC; Brett Bowes d/b/a Bowes Farm; Camerer Farms, Inc. ; and Jab Livestock, LLC., Appellees

No. 536 MDA 2016

Superior Court of Pennsylvania.

Argued November 1, 2016

FILED APRIL 04, 2017

Kevin C. Boylan, Kingston, for Branton, K., Branton, S., Branton, M., Branton, L., Branton, B., Courtwright, P., Courtwright, P., Kline, Long, McKean, A., McKean, T., Muthler, D., Muthler, S., and Shipman, appellants.

James C. Clark, Warrington, for Nicholas Meat and Camerer Farms, appellees.

BEFORE: BOWES, OLSON and STABILE, JJ.

OPINION BY OLSON, J.

Appellants, Kelly Branton et al , appeal from the judgment entered on March 4, 2016 in favor of Nicholas Meat, LLC ("Nicholas"), Brett Bowes d/b/a Bowes Farm, Camerer Farms, Inc. ("Camerer Farm" and together with Nicholas and Bowes Farm "Farmers"), and JAB Livestock, LLC ("JAB").¹ After careful consideration, we hold that Appellants' action is partially barred by the Right to Farm Act ("RTFA"), 3 P.S. §§ 951 –957. Accordingly, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

The factual background and procedural history of this case are as follows. Nicholas operates a slaughterhouse in Loganton, Pennsylvania. The slaughterhouse generates food processing waste ("FPW"),² which is rich in nutrients essential to farming. Beginning in 2011, Nicholas began transporting FPW from the slaughterhouse to the Bowes and Camerer Farms. The FPW is immediately spread on the Bowes and Camerer Farms and/or stored in a 2,400,000 gallon tank on the Bowes Farm ("the storage tank"). The FPW stored on the Bowes Farm is later spread on the Bowes and Camerer Farms.

On March 17, 2011, the Pennsylvania Department of Environmental Protection ("DEP") issued Camerer Farm a notice of violation ("NOV").³ Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at Exhibit 3. That NOV stated that Camerer Farm violated 35 P.S. §§ 6018.302(a) and 6018.610(1) by spreading FPW between February 25 and 27, 2011. DEP informed Camerer Farm that it needed a nutrient management plan⁴ or needed a permit for spreading FPW on its land. The following day, March 18, 2011, DEP issued a NOV to Nicholas for permitting its FPW to be spread on Camerer Farm between February 25 and 27, 2011. Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at Exhibit 4. That NOV stated that Nicholas violated 25 Pa. Code § 291.201(a) in allowing its FPW to be spread on Camerer Farm.

On April 15, 2013, DEP issued a NOV to Nicholas for providing FPW which was spread on Bowes Farm in late March and/or early April 2013. See Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at Exhibit 5. That NOV stated that Nicholas violated 35 P.S. 8.610(9) and 25 Pa. Code § 287.101(b)(2) by permitting its FPW to be spread within 150 feet of a stream and in an area not covered by a nutrient management plan. That same day, April 15, 2013, DEP issued a NOV to Bowes Farm for spreading FPW in late March and/or early April 2013. See Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at Exhibit 6. That NOV stated that spreading FPW within 150 feet of a stream and in an area not covered by a nutrient management plan violated section 287.101(b)(2).

On June 14, 2013, Appellants filed a complaint which alleged negligence and a temporary private nuisance.⁵ Less than one month later, DEP issued a NOV to Bowes Farm for spreading FPW on June 25, 2013. Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at Exhibit 7. That NOV stated that Bowes Farm violated section 287.101(b)(2) by spreading FPW during summer when the relevant nutrient management plan stated that FPW would not be spread during summer.

On November 15, 2013, Appellants filed their second amended complaint. On December 18, 2015, Farmers moved for summary judgment.⁶ As part of their summary judgment motion, Farmers argued that Appellants' claims were barred by RTFA's statute of repose. On March 4, 2016, the trial court granted Farmers' summary judgment motion. Contemporaneously therewith, the trial court issued an opinion outlining its rationale for granting summary judgment. Branton v. Nicholas Meat, LLC , 2016 WL 1270378 (C.C.P. Lycoming Mar. 4, 2016). This timely appeal followed.⁷

Appellants present three issues for our review:

1. Did the [t]rial [c]ourt err as a matter of law in holding on [s]ummary [j]udgment that [Appellants'] claims were barred by [RTFA] despite the evidence presented by [Appellants] that [Farmers'] practice of spreading [FPW] was unlawful and in violation of various regulations, codes[,] and statutes?

2. Did the [t]rial [c]ourt err as a matter of law in rejecting [Appellants'] claim that [Farmers'] practice of spreading [FPW] was not a "normal agricultural operation" under the RTFA?

3. Did the [t]rial [c]ourt err as a matter of law in holding on [s]ummary [j]udgment that [Appellants'] claims were barred by RTFA despite the evidence presented by [Appellants] that the addition of a[n FPW] waste storage tank on the Bowes Farm in April 2012 was a substantial change under the RTFA?

Appellants' Brief at 7.

All three of Appellants' issues challenge the trial court's determination that RTFA bars their action against Farmers and JAB. "The trial court's entry of summary judgment presents a question of law, and therefore our standard of review is de novo and our scope of review is plenary." Fisher v. A.O. Smith Harvestore Products, Inc. , 145 A.3d 738, 741 (Pa. Super. 2016) (en banc ) (citation omitted).

RTFA provides, in relevant part, that:

No nuisance action shall be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing such action, where the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation and are normal agricultural operations, or if the physical facilities of such agricultural operations are substantially expanded or substantially altered and the expanded or substantially altered facility has either: (1) been in operation for one year or more prior to the date of bringing such action, or (2) been addressed in a nutrient management plan approved prior to the commencement of such expanded or altered operation pursuant to [3 Pa.C.S.A. § 506 ], and is otherwise in compliance therewith[.]

3 P.S. § 954(a). Section 954(a) is a statute of repose and not a statute of limitations.⁸ Gilbert v. Synagro Cent., LLC , 131 A.3d 1, 15 (Pa. 2015). There are three key requirements for section 954(a) to bar a nuisance action: (1) the agricultural operation against which the action is brought must have lawfully operated for at least a year prior to the filing of the complaint; (2) (a) the conditions or circumstances that are the basis for the complaint must have existed substantially unchanged since the established date of operation, or (b) if physical facilities have been substantially expanded or altered such facilities must have (i) operated for at least one year prior to the filing of the complaint or (ii) been addressed in a nutrient management plan approved prior to the commencement of such expanded or altered operation; and (3) the conditions or circumstances are normal agricultural operations.⁹ See 3 P.S. § 954(a).

We begin our analysis by examining what standard governed the trial court's consideration of Farmers' summary judgment motion. Appellants argue that the trial court was required to apply the general summary judgment standard. According to Appellants, summary judgment was only appropriate if "the record clearly demonstrates that there [were] no genuine issue of material fact [.]" Telwell Inc. v. Grandbridge Real Estate Capital, LLC , 143 A.3d 421, 425 (Pa. Super. 2016) (citation omitted). According to Appellants, the trial court (and this Court) "must view the record in the light most favorable to [Appellants], resolving all doubts as to the existence of a genuine issue of material fact against [Farmers]." Id. (citation omitted).¹⁰ Farmers, on the other hand, argue that the applicability of the statute of repose was a purely legal question for the trial court to decide. SeeSmith v. Workmen's Comp. Appeal Bd. (Concept Planners & Designers) , 543 Pa. 295, 670 A.2d 1146, 1148–1149 (1996). Thus, according to Farmers, there was no genuine issue of material fact relating to the applicability of the statute of repose.

We agree with Farmers that the applicability of the statute of repose in this case was a purely legal question that the trial court could decide on a motion for summary judgment. In Gilbert , our Supreme Court explained that

generally, statutes of repose are jurisdictional and their scope is a question of law for courts to determine. ... [T]here may be cases in which a statute of repose's applicability turns on resolution of factual issues. In such cases, the facts relevant to jurisdiction are so intertwined with those relating to the merits of the action, the jurisdictional determination will necessarily involve fact finding.

Gilbert , 131 A.3d at 15 (internal citations omitted).

In Gilbert , the appellees were individuals who owned or resided on properties adjacent to a farm known as Hilltop Farms. Biosolids were spread on 14 fields of Hilltop Farms. The appellees alleged that extremely offensive odors emanated from the spread biosolids. The appellees sued various entities and individuals,...