Luzerne County judge cites Right To Farm Act and rules to dismiss neighbors' nuisance complaints

By Nicholas Malfitano | Apr 26, 2017

WILKES-BARRE – A state court judge cited Pennsylvania’s Right To Farm Act (RTFA) in recently dismissing a case from neighbors who filed a lawsuit over the use of liquid swine manure as part of the defendants' farming operations.

On April 13, Luzerne County Court of Common Pleas Judge Thomas F. Burke Jr. decided to grant motions for summary judgment for defendants Paul Dagostin and Suzanna Dagostin of Berwick, Douglas Zehner of Nescopeck and County View Family Farms, LLC of Hatfield, and against a long list of plaintiffs who are landowners and neighbors of the Dagostin defendants.

Initially three separate cases, the Court consolidated them for disposition after seeing their common causes of action related to private nuisance. The defendants from each original action filed motions for summary judgment against the respective plaintiffs, all of whom are neighbors of the “Will-O-Bett Farm” property in Salem Township.

The Dagostin defendants own and operate Will-O-Bett Farm, which houses a pig finishing barn and considered a “Concentrated Animal Feeding Operation” (CAFO). Country View Family Farms, LLC owns the pigs raised at the CAFO, while defendant Zehner is a farmer who “imports” liquid swine manure from the CAFO and uses it as a nutrient for crops he grows on the Will-O-Bett Farm and its vicinity.

The plaintiffs in the instant case are landowners/residents of properties which are located either next to or in the vicinity of the CAFO. In their complaints, the plaintiffs all allege “the activity of the CAFO, especially the spreading of its resultant liquid swine manure on the fields surrounding it, which are owned by the Dagostins and farmed in part by Zehner, create conditions which amount to an actionable private nuisance.”

In the defendants’ motions for summary judgment, they asserted they were protected from this type of nuisance action under the provisions of 3 P.S. Sections 951-957, commonly known as the RTFA. Burke concurred.

“It is clear to the Court that the plain language of this legislative policy is not only designed to protect existing agricultural operations from those situations where plaintiffs ‘come to the nuisance’ but also to encourage the development and improvement of agricultural land within the Commonwealth for the production of food and other agricultural products,” Burke stated.

Burke stipulated the Court dealt with the current iteration of Section 954(a) of the RTFA, which was amended in 1998.

“As the Supreme Court of Pennsylvania has recently held, ‘Section 954(a) is a statue of repose; its applicability, as determined by statutory interpretation is a question of law for the courts to decide.’ Accordingly, we must interpret Section 954(a) of the RTFA to determine if it applies so as to bar plaintiffs from pursuing their nuisance action against defendants based on the record before the Court. We hold that it does,” Burke said.

Burke referred to the recent case of Branton Et.Al v. Nicholas Meat, LLC, Et.Al, where the Superior Court of Pennsylvania outlined three criteria from Section 954(a) to bar a nuisance action: “(1) The agricultural operations 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 operations, or (b) if the 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.”

“In keeping with the express legislative policy of Section 951 of the RTFA as set forth above, and in accord with the expansive protection provided to agricultural operations by the 1998 amendments to the RTFA, the Court concludes that the ‘operation’ in question is the CAFO. Further, the Court holds that the operation of the CAFO, for purposes of time computation under Section 954(a), began on Jan. 23, 2013, when the first delivery of pigs to the finishing barn occurred. The first of the complaints in the three above-captioned cases was filed on May 16, 2014, more than one year from the date when the CAFO’s operations began,” Burke said.

Burke explained though the plaintiffs argued the Court should focus on when the spreading of the liquid swine manure began, in order to determine the start of the one-year time period from Section 954(a), for the Court to accept that position would render 1998 amendments to that section meaningless.

Burke continued because the CAFO had an approved nutrient management plan set before its operations began on Jan. 23, 2013, the date on which it began to spread the liquid swine manure was “irrelevant” for purposes of the time computation under Section 954(a).

“In addition, the Court holds as a matter of law that the operation of the CAFO, and, more specifically, the spreading of the liquid swine manure, are “normal agricultural operations,” Burke said, referencing precedent from Gilbert v. Synagro Central.

“Finally, all of the competent evidence before the Court indicates that the CAFO has ‘lawfully’ been in operation since it began and that it has likewise been in full compliance with its approved nutrient management plan,” Burke added, this time making reference to the wording of the decision in Branton Et.Al v. Nicholas Meat, LLC Et.Al.

Burke concluded by granting the defendants’ motions for summary judgment.

The plaintiffs are represented by of Franklin Earl Kepner Jr. of Kepner Kepner & Corba, in Berwick.

The defendants are represented by Louis H. Kozloff and Michael P. Luongo of Goldberg Segalla, plus Robert N. Feltoon of Conrad O’Brien, all in Philadelphia; John G. Dean of Elliott Greenleaf, in Wilkes-Barre; Gregory A. Neibarger and Alex Gude of Bingham Greenebaum Doll, in Indianapolis, Ind.; plus Andrew K. Garden, James J. Dodd-o and Gregory C. Kunkle of Thomas Thomas & Hafer in Allentown.

Luzerne County Court of Common Pleas case 2015-02092

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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