HARRISBURG – The Superior Court of Pennsylvania has found partial favor with and remanded a case between a Lycoming County farm and its neighbors, ruling its activities are protected under the Right to Farm Act (RTFA).

On April 4, Superior Court judges Mary Jane Bowes, Judith Ference Olson and Victor P. Stabile decided to partially affirm the Lycoming County Court of Common Pleas’s decision in this regard, but vacated the judgment resulting from the storage of food processing waste (FPW) on a 2.4 million-gallon tank located on the property of defendant Bowes Farm and remanded the case back to state court for further proceedings. 

Olson authored the Court’s opinion in this case.

The lawsuit was first filed in June 2013 by neighbors living next to 1,200 acres on which defendant Camerer Farms grows corn and soybean, using fertilizer created from food processing residual material generated at Nicholas Meat’s processing plant.

The plaintiffs argued claims for nuisance and negligence, alleging the odors stemming from the defendants’ farming operations detracted from the use and enjoyment of their properties. Further, the plaintiffs also claimed the defendants were liable for negligence in their storage, transport and application of the food processing residual.

However, the Court decided the RTFA is “a shield that protects against nuisance lawsuits and negligence claims stemming from the same facts.”

It had been the first time a trial court cited the Supreme Court of Pennsylvania’s decision in Gilbert v. Synagro Central, LLC, which upheld the application of biosolids as a fertilizer to crops on the basis that the RTFA affords “extraordinarily broad protection” to Pennsylvania farmers, so long as the activity in question was “normal” and had been occurring for more than one year prior to any legal action being filed.

In a decision issued March 4, 2016 by Judge Richard A. Gray, the Court granted summary judgment to defendants Nicholas Meat, Bowes Farm, Camerer Farm and JAB Livestock. After three years of discovery, the Court ruled their application of a fertilizer consisting of organic animal material qualified as normal and protected activity under the RTFA.

The plaintiffs then appealed to the Superior Court, challenging the legality of the defendants’ actions.

However, the higher court found no illegality with the farming actions of the defendants, holding with the Supreme Court of Pennsylvania’s view in Synagro that application of FPW is a normal farming-related application and permitted under the law.

“Permitting appellants to proceed with their claims relating to the spreading of FPW, when the statute of repose previously extinguished such claims, would have a chilling effect on farmers in this Commonwealth. Specifically, farmers would be discouraged from expanding their operations if they lost all RTFA protections because of one substantial change in the physical facilities of the farm. By separating the claims, we not only uphold the viable elements of appellants’ complaint, but also uphold the plain language and spirit of RTFA,” Olson said.

“In sum, we hold that a violation of a federal, state, or local law does not ipso facto render an agricultural operation unlawful. In other words, a lawful use is not rendered unlawful simply because an owner may have been cited for an infraction for noncompliance in connection with the use. Instead, we hold that an agricultural operation is lawful if it substantially complies with relevant federal, state, and local laws,” Olson continued.

Olson said in the instant case, the defendant farmers lawfully spread FPW for at least one year prior to the filing of appellants’ complaint, and the Court held that “spreading FPW on farmland to provide nutrients for the soil, and storage of FPW in tanks, constitute normal agricultural operations” – but also concluded “construction of the 2.4 million gallon storage tank constituted a substantial change in the physical facilities of the agricultural operation less than one year prior to commencement of this litigation.”

“Thus, we conclude that Farmers satisfied all three requirements of section 954(a), RTFA’s one-year statute of repose, as it relates to the spreading of FPW; however, Farmers failed to satisfy the second requirement of section 954(a) with respect to the storage of FPW in the 2.4 million gallon tank located on Bowes Farm. Accordingly, we affirm the judgment entered with respect to the claims arising from the spreading of FPW and vacate the judgment entered with respect to the claims arising from the storage of FPW in the 2.4 million gallon storage tank located on Bowes Farm. We remand this case to the trial court for further proceedings consistent with this opinion including ruling, in the first instance, on the portion of Farmers’ summary judgment motion arguing that appellants’ nuisance claim fails as a matter of law,” Olson said.

The plaintiffs are represented by Kevin Clancy Boylan and Edward Ciarimboli of Fellerman & Ciarimboli in Kingston.

The defendants are represented by J. David Smith of the McCormick Law Firm in Williamsport, Kristi A. Buchholz of Wilson Elser Moskowitz Edelman & Dicker in Philadelphia, plus James C. Clark and John J. Haggerty of Fox Rothschild, in Warrington.

Superior Court of Pennsylvania case 536 MDA 2016

Lycoming County Court of Common Pleas case 13-01502

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