J-A32041-17 & J-A32042-17

2018 PA Super 77

JANE & JEFF BURLINGAME, PAM HOLTER, 

JAMES & JENNIFER HYDE, SHANE & 

CHANTEL LEVARDI, KIP & ANGELA MCCABE, 

JOHN & VERONICA MOLITORIS, APRIL & 

MATTHEW SNYDER, JACQUELINE & BARRY 

TITUS, JEFFREY & COLLEEN WALKER, JOHN 

& PATRICIA KACHURKA, DWAYNE & 

SANDRA HILTON, LESLEY BETZ, JOHN & 

SHARON YASNESKI, GERALD & JACQUELINE 

HITTLE, SCOTT KARCHNER, STEPHIN & 

MARIE CARGILL, JAMES & ERIN MORAN, 

BETH KISHBAUGH-ALBA, ROBERT & 

CYNTHIA LOMBARD, ANTONIO & KERRI 

TROIANI, JASON & MELANIE LEAR, DENNIS 

& ANDREA EVENSEN, RICHARD & EMILY 

WEAVER, KEITH & LISA SEELY, RICHARD & 

DOLORES MAYO, ZACHARY & HEATHER 

GETKIN, MARY MITCHEM, HUSHANG TATAR, 

DAVIT SZATKOWSKI, SUSAN SLUSSER, 

VICTOR & CHRIS BOWES, CHARLES & 

LAURA NAUS, ROBERT & LOIS ALBERTSON, 

GARY & TAMMY WANCZAK, MICHAEL & 

MICHELLE MONTECALVO, MARC & KATHRYN 

NESPOLI, KARLEEN FULLER, HELENA 

SAMSEL, JEFFREY & ANNAMAE KANTOR, 

JOSEPH & CONNIE NESPOLI, DONALD & 

KATHLEEN BOHL, GARY & TAMMY SWANK, 

SUSAN DALTO, DAVIT & TAMI BERHEISER, 

JOSEPH & MICHELLE PASSARETTI, THOMAS 

CICINI, JR. & ELISSABETH CICINI, ROBERT 

L. ALBERTSON, SR., KEITH & JUDITH 

WEAVER, NICHOLAS COLEMAN, STEPHEN & 

GINNY CRAKE, BRESSI ARNDT, JOHN & LISA 

ARNDT, TERRY L. BOYER, LAMONT & 

RUTHANN BROWN, DAVID & GINA BROWN, 

THOMAS & MARIE CICINI, PETER & JOANN 

COLONE, WILLIAM CONNER, JR. & JUDY 

CONNER, ROGER & MICHELE CRAKE, FRANK 

& LINDA CRAYTON, RICHARD HOLLOWAY, 

LOUELLA S. JACKSON, SAMUEL & SUSAN 

JAFFIN, RAYMOND KASHMER, ROBERT 

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IN THE SUPERIOR COURT OF

PENNSYLVANIA
J-A32041-17 & J-A32042-17

- 2 -

KOWALSKI, SR. & DIANE KOWALSKI, 

LORAINE LAUBACH, MICHAEL A. MONICO, 

JR., JOSEPH PROCIDA, CODIE RIMMER, 

GABRIELLE ROMAN, ROBERT & CAROL 

SEIGFRIED, ROBERT SUKEL, CRAIG & 

JESSICA TAYLOR, ANDREW & JESSICA 

WALTER, FRANCIS & ANN YOSH, HAROLD & 

SAMANTHA PIASECKI, JEFF & MINDY 

BROWN, AUDREY MALONEY, JEFF BECKER, 

DAVID BECKER, THOMAS BECKER, BARBARA 

KAMPF, DOROTHY KAMPF, MICHAEL 

MALINOWSKI, ORVILLE KNEEZLE, BEVERLY 

HARMON, JAMES LABAR, AND LOUISE 

KROLIKOWSKI,

 Appellants

 v.

PAUL & SUZANNA M. DAGOSTIN, DOUGLAS 

ZEHNER, AND COUNTRY VIEW FAMILY 

FARMS, LLC,

 Appellees

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: No. 799 MDA 2017

Appeal from the Order Entered April 13, 2017

in the Court of Common Pleas of Luzerne County

Civil Division at No(s): 2015-2092

KIP MCCABE, SR. & ANGELA MCCABE, 

APRIL & MATTHEW SNYDER, JACQUELINE & 

BARRY TITUS, JEFFREY & COLLEEN

WALKER, PAM HOLTER, MARK & GLENDA

STERNER, JOHN & VERONICA MOLITORIS, 

MICHAEL MALINOWSKI, WILLIAM & KELLY 

GROZIER, SHANE & CHANTEL LEVARDI, 

HAROLD & SAMANTHA PIASECKI, JAMES & 

JENNIFER HYDE, JANE BURLINGAME, 

DWAYNE & SANDRA HILTON, CATHY 

MCDANIELS, SHANNON KOCH, ROBERT 

KOWALSKI, SR., KARLEEN FULLER, JASON 

& MELANIE LEAR, BETH ALBA, WILLIAM 

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IN THE SUPERIOR COURT OF

PENNSYLVANIA
J-A32041-17 & J-A32042-17

- 3 -

FEDDER, HEATHER FLANNERY, JODY 

KUCZENSKI, BRIAN BETZ, CALISTRIA 

PITKIN, TONI MORMANDO, THOMAS & AMY 

DIBATTISTA, MICHAEL MONTECALVO, 

THOMAS & MARIE CICINI, ERIN & JAMES 

MORAN, CHARLES BENSCOTER, GENE & 

ROSE BLOCKUS, ANNA FARRUGGIO, 

DARRELL & NORMA JONES, COLLEEN & 

SHAWN GOLOMB, ANDREA & DENNIS 

EVENSEN, SCOTT & MOLLY KERN, ESTEE 

BECK, MARION & JOHN CELONA, ROBERT 

SUKEL, BOB ALBERTSON, JACKSON 

TRAUGH, SANTE D’AMBROSIO, KELLIE 

SOBERICK, JEFFREY EYER, KEN & 

VERONICA LOCKARD, ERNEST COLE, 

DINESH MERTA, MICHAEL WHITEMIRE, 

DEANNA SHUCKERS, FRED KITCHEN, KERRI 

& TONY TROIANI, JEROME & JUDITH 

GOLOMB, JEFFERY CAIN, BETTE RYAN, 

STEVE KINNEY, SCOTT & CHRISTINE 

HOOK, DAVE & GERA ZEITLER, ANDREW & 

JESSICA WALTER, PAMELA HOLTER, SUSAN 

SLUSSER, DAVID R. SZATKOWSKI, PAUL 

FRICKS, CAROL & ROBERT SEIGFRIED, 

LAMONT BROWN, AUDREY MALONEY, 

HAROLD & SAMANTHA PIASECKI, LENARD 

BADOLATO, MARK & MARCELLA BENISH, 

DAVID & SUE BOGART, KEITH & HEATHER 

BOTTO,STEVEN BOWER, JENNIFER

BURNS, CAROL & ROBERT CHAMBERS, BOB 

CLARK, STELLA DIETRICH, LORI DENNIS, 

LINDA EYER, KEN FERGUSON, RANDY & 

CANDICE FIOREY, KAREN FULLER,

DONALD GOFF, LEWIS GRIFFITHS,

NANCY GUARD, JIM HOLLOWAY, HERBERT 

& JUDY HARMON, AND BEVERLY HARMON,

 Appellants

 v.

PAUL & SUZANNA M. DAGOSTIN, AND 

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J-A32041-17 & J-A32042-17

- 4 -

DOUGLAS ZEHNER,

 Appellees

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: No. 800 MDA 2017

Appeal from the Order Entered April 13, 2017

in the Court of Common Pleas of Luzerne County

Civil Division at No(s): 2014-6202

BEFORE: OTT, DUBOW, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED MARCH 29, 2018

Before us are identical issues raised in two appeals from orders 

granting summary judgment to Defendants1in nuisance actions filed by 

Plaintiffs.

2 We affirm.

The relevant facts are as follows. The Dagostin family has operated 

Will-O-Bett Farm in Salem Township, Luzerne County, since 1955. The farm 

was initially a dairy farm, but in the 1990s switched to a beef farm while 

maintaining small numbers of goats, chickens, and pigs. In 2011, the 

Dagostins decided to convert their farm to a concentrated animal feeding 

 

* Retired Senior Judge assigned to the Superior Court.

1 The defendants in the appeal filed at 799 MDA 2017 are Paul and Suzanna 

Dagostin, Douglas Zehner, and Country View Family Farms (Country View), 

all of whom are alleged to have had some responsibility for the management 

of the agricultural operation at issue. The Dagostins and Zehner are the 

named defendants in the appeal filed at 800 MDA 2017. We refer to all 

defendants in both actions collectively as Defendants, as the claims against 

them and bases for judgment in their favor are the same, and they filed joint 

briefs in these appeals.

2 The term Plaintiffs refers collectively to those individuals listed as 

appellants in the captions above, which were generated from the captions on 

the respective notices of appeal. 
J-A32041-17 & J-A32042-17

- 5 -

operation (CAFO) for pigs, where animals owned by Country View stay for a 

few months while they grow from about 60 to 270 pounds. 

Defendants were granted a condictional use to build the CAFO from 

the township after a public hearing in 2011; had a land development plan 

conditionally approved by the township in February 2012; and had a nutrient 

management plan approved by a commission of the Pennsylvania 

Department of Agriculture on May 15, 2012. The physical facilities were 

constructed, including a 40,000-square-foot finishing barn and a 1.8-milliongallon storage pit for containing the hog urine and feces generated by the up

to 4,800 hogs that are concentrated3 at the CAFO. The first shipment of 

pigs arrived on January 23, 2013. Defendants aver that they began 

spreading the liquid swine manure (LSM) collected from the CAFO onto the 

surrounding fields of their farm in June 2013. Plaintiffs say the LSM did not 

begin to be spread until April 2014.

Separate complaints, one on May 16, 2014, and another on April 27, 

2015, were filed by Plaintiffs, who are different groups of neighbors claiming 

that the spread of the LSM created a private nuisance. After rounds of 

 

3 Based upon the numbers, the finishing barn offers, at most, eight and one

third square feet per 60-to-270-pound hog. Make no mistake about it. The 

RTFA is not an attempt to preserve the traditional family farm, such as the 

160 acres worked in Wisconsin by the family of this writer’s wife since 1845. 

The statute is a paean to agribusiness. See generally John Ikerd, 10 

Reasons to Oppose “Right to Farm” Amendments, Civil Eats (July 17, 

2014), https://civileats.com/2014/07/17/10-reasons-to-oppose-right-tofarm-amendments/.
J-A32041-17 & J-A32042-17

- 6 -

preliminary objections and amended complaints, Defendants moved for

summary judgment based upon subsection 954(a) of the Right to Farm Act 

(RTFA), 3 P.S. §§ 951-957. The trial court agreed with Defendants and 

granted judgment as a matter of law in their favor. Plaintiffs timely filed

notices of appeal. 

Plaintiffs present this Court with the following questions.

1. Did the trial court err as a matter of law and/or abuse its 

discretion in holding on summary judgment that [Plaintiffs’] 

nuisance claim is barred by the RTFA’s one-year statute of 

repose because, according to the trial court, calculation of the 

one-year period began when the first shipment of pigs was 

delivered on January 23, 2013[,] despite the fact that there was 

a substantial change in the conditions or circumstances 

complained of after this date?

2. Did the trial court err as a matter of law and/or abuse its 

discretion in holding on summary judgment that [Plaintiffs’] 

nuisance claim is barred by the second provision of [sub]section 

954(a) because, according to the trial court, there was an 

approved nutrient management plan in place despite the fact 

that there was no substantial expansion or substantial alteration 

of the physical facilities of the CAFO?

Plaintiffs’ Briefs4 at 2-3 (suggested answers and trial court answers omitted). 

We begin with an examination of the applicable law. The RTFA is 

prefaced with an express statement of the policy.

It is the declared policy of the Commonwealth to conserve and 

protect and encourage the development and improvement of its 

agricultural land for the production of food and other agricultural 

products. When nonagricultural land uses extend into 

 

4 The briefs of both Plaintiffs and Defendants are nearly identical in both 

appeals. Unless otherwise indicated, cited material is on the same page in 

both briefs. 
J-A32041-17 & J-A32042-17

- 7 -

agricultural areas, agricultural operations often become the 

subject of nuisance suits and ordinances. As a result, 

agricultural operations are sometimes forced to cease 

operations. Many others are discouraged from making 

investments in farm improvements. It is the purpose of this act 

to reduce the loss to the Commonwealth of its agricultural 

resources by limiting the circumstances under which agricultural 

operations may be the subject matter of nuisance suits and 

ordinances.

3 P.S. § 951. In furtherance of this policy, subsection 954(a) of the RTFA 

provides in relevant part as follows.

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 section 6 of the act of May 20, 1993 (P.L. 12, No. 6), known 

as the Nutrient Management Act,[5] and is otherwise in 

compliance therewith.... 

3 P.S. § 954(a). 

Important in the instant case, the RTFA provides no definition for the 

term “agricultural operation.” However, in the agriculture statutes 

governing nutrient management and odor management, “agricultural 

 

5 The 1993 Act was replaced in 2005; the applicable statutory provision is 

now found at 3 Pa.C.S. § 506. The replacement statute did not change the 

law in any way to impact resolution of this case. 
J-A32041-17 & J-A32042-17

- 8 -

operations” are defined as “The management and use of farming resources 

for the production of crops, livestock or poultry.” 3 Pa.C.S. § 503.

Our Supreme Court has ruled that subsection 954(a) is a statute of 

repose, as opposed to a statute of limitations. 

A statute of repose ... limits the time within which an 

action may be brought and is not related to the accrual of any 

cause of action; the injury need not have occurred, much less 

have been discovered. Unlike an ordinary statute of limitations 

which begins running upon accrual of the claim, the period 

contained in a statute of repose begins when a specific event 

occurs, regardless of whether a cause of action has accrued or 

whether any injury has resulted.

Gilbert v. Synagro Central, LLC, 131 A.3d 1, 15 (Pa. 2015). 

The RTFA has not always existed in its current state. Rather, 

[i]n 1998, Pennsylvania amended its right-to-farm law to 

provide further protection to farmers. A portion of the 

amendment was designed to immunize farmers who sought to 

expand or substantially change their operations from nuisance 

suits. Because the original law’s one-year statutory period 

created a deterrent to investment, the amendment sought to 

give farmers a way to opt out of the problematic one-year 

period. Since the amendment, a farmer may avoid the one-year 

period by developing a nutrient management plan in compliance 

with state law prior to substantially changing his operation. As 

such, the farmer is provided with immediate immunity from suit 

and the deterrent to investment is removed.

Jennifer L. Beidel, Pennsylvania's Right-to-Farm Law: A Relief for 

Farmers or an Unconstitutional Taking?, 110 Penn St. L. Rev. 163, 171–

72 (2005) (footnotes omitted). See also House of Representatives 

Agriculture and Rural Affairs Committee Minutes, 9/23/1997, at 1 (“[T]his 

bill amends the existing ‘Right to Farm’ law by ensuring that the protections 
J-A32041-17 & J-A32042-17

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afforded farmers under the new law become immediately available to an 

expanding farm operation upon approval of a Nutrient Management 

Plan....”); House Committee on Appropriations, Senate Bill 682 Fiscal Note, 

11/24/1997 (“Senate Bill 682 provides farmers with an immediate protection 

from nuisance suits after expansion of an agricultural operation if the 

operation has an approved nutrient management plan prior to the 

commencement of the expanded operation.”).

“Nutrient” is defined as “[a] substance or recognized plant nutrient, 

element or compound which is used or sold for its plant nutritive content or 

its claimed nutritive value. The term includes, but is not limited to, livestock 

and poultry manures, compost as fertilizer, commercially manufactured 

chemical fertilizers, sewage sludge or combinations thereof.” 3 Pa.C.S. 

§ 503. The definition of “nutrient management plan” is “[a] written sitespecific plan which incorporates best management practices to manage the 

use of plant nutrients for crop production and water quality protection 

consistent with the criteria established in sections 504 (relating to powers 

and duties of commission) and 506 (relating to nutrient management 

plans).” Id. 

This Court must decide as a matter of law whether the statute is 

applicable. In so doing, we must determine whether the following three 

prongs have been met: 
J-A32041-17 & J-A32042-17

- 10 -

(1) the agricultural operation against which the action is brought 

must have lawfully operated for at least one year prior to the 

filing of the complaint; and

(2) the conditions or circumstances that are the basis for the 

complaint are normal agricultural operations; and

(3) either the conditions or circumstances that are the basis for 

the complaint must have existed substantially unchanged since 

the established date of operation, or 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.

We begin by noting what is not in dispute. Plaintiffs do not contest 

that the spreading of LSM is a normal agricultural operation; hence the 

second prong of the test has been met. Also, it is the spreading of the LSM 

that is the “condition[] or circumstance[] complained of as constituting the 

basis for the nuisance action” for deciding the third prong of the test.6 3 

P.S. § 954(a). However, when those conditions began to exist is disputed 

by the parties. Defendants claim they began the spreading of LSM in June 

2013. Plaintiffs claim that the spreading of LSM did not begin, or at least 

not exist substantially unchanged, until 2014, when more than 90,000 

gallons of LSM were spread in a single day, as opposed to the 90,000 gallons 

Defendants claim was spread in all of 2013. Whether that factual dispute is 

 

6 Plaintiffs acknowledge that they also base their claims on odors emanating 

from the storage pit itself. Plaintiffs’ Briefs at 4-5. However, their argument 

focuses on the spreading of LSM, an activity that they contend began less 

than one year before their complaints were filed. Based upon our resolution, 

we need not separate Plaintiffs’ claims. 
J-A32041-17 & J-A32042-17

- 11 -

of consequence turns on whether the agricultural operation at issue in the 

first prong of the test is the farm itself or is instead the CAFO.

An examination of the three appellate decisions that address 

application of section 954(a) to bar nuisance claims reveals that no Court 

has clarified exactly what qualifies as “the agricultural operation against 

which the action is brought.” 3 P.S. § 954(a). The first time this Court 

considered the statute was in Horne v. Haladay, 728 A.2d 954 (Pa. Super. 

1999). In that case, Horne claimed, inter alia, that the defendants created a 

private nuisance in the form of daily strong odors from their poultry 

business. Id. at 955. The Court determined that the poultry farm was a 

normal agricultural operation. Id. at 958. Further, the Court ruled that the 

defendants’ operation was lawful because Horne came forth with no 

evidence to create a material issue of fact that the operation violated any 

statutes or regulations. Id. Regarding the timing, the Court stated:

the record clearly reveals that [the defendants] began operation 

of their poultry house in November of 1993, when they stocked 

the house with 122,000 laying hens. The only change in their 

operation which could even be considered substantial took place 

in August of 1994, when [the defendants] placed a 

decomposition house into operation. [Horne] did not institute 

his suit until November 21, 1995, and he has not alleged that 

the poultry farming operation has changed in any manner since 

that time, except perhaps to concede that certain conditions 

have improved since the decomposition house was placed into 

operation. Thus, [the defendants’] poultry house was lawfully in 

operation in a substantially unchanged manner for more than 

one year prior to the date on which [Horne] filed his nuisance 

suit, and the action is, therefore, time-barred by 3 P.S. § 954(a). 
J-A32041-17 & J-A32042-17

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Id. at 956-57. The Court offered the following discussion of the 

determination of when the clock started running for Horne:

For the purposes of this appeal only, we have ruled that [the 

defendants’] construction and subsequent use of the 

decomposition house was a substantial change in their poultry 

operation sufficient to start the one-year limitations period anew. 

We do so because even if we employ this later date to the 

benefit of [Horne], his nuisance action is nevertheless barred by 

3 P.S. § 954(a). It is, of course, arguable that the one-year 

period began in November of 1993, when the chicken house was 

stocked with 122,000 laying hens or in the Spring and Summer 

of 1994, when [Horne] began to experience problems with flies 

and odor.

Id. at 957 n.1. Because it made no difference to the outcome, the Horne

Court declined to establish what event or events actually began the running 

of the one-year statute.

Our Supreme Court ruled upon the application of subsection 954(a) in 

Gilbert. In that case, the defendants were the owners/operators of a farm 

and a company that, beginning in 2006, provided the farm with fertilizer in 

the form of biosolids, a foul-smelling treated sewage sludge. Gilbert, 131 

A.3d at 3. In 2008, two groups of neighbors sued the defendants, claiming, 

inter alia, that the use of the biosolids created a private nuisance. Our

Supreme Court did not decide whether the first prong of the test we state on 

page 6 above was based upon the operation of the farm itself, or the farm’s 

use of biosolids, as the result was the same in either case:

Whether “agricultural operation” refers to the farm or to the 

farming process, § 954(a)’s one-year requirement is met here, 

as [the plaintiffs’] action was not filed until 2008, well beyond 
J-A32041-17 & J-A32042-17

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the one-year period. Furthermore, even if the change to 

biosolids was a substantial change from prior operations, such 

change occurred more than two years prior to [the plaintiffs’] 

suit, rendering the suit untimely.

Id. at 19 (citations omitted). The case thus turned on the second prong of 

the test—whether the use of biosolids was a normal agricultural operation—

and the Court concluded it was. Id. at 19-23. Accordingly, the defendants 

were entitled to summary judgment based upon subsection 954(a). Id.

This Court again decided a case involving the RTFA’s statute of repose 

in Branton v. Nicholas Meat, LLC, 159 A.3d 540 (Pa. Super. 2017). In 

that case, the defendants were a slaughterhouse that produced solid and 

liquid nutrient-filled food processing waste (FPW), and two farms that began 

using the FPW as fertilizer in 2011. Id. at 543. The plaintiffs filed a 

complaint in June 2013 stating nuisance claims. In considering the first 

prong of the test (the agricultural operation against which the action is 

brought must have lawfully operated at least one year prior to the filing of 

the complaint), this Court noted that amicus curiae Pennsylvania Farm 

Bureau contended that the first prong “refers to the farm itself and not the 

specific agricultural activity conducted on the farm.” Id. at 549 n.11. 

Observing that this issue had been briefed but not decided in Gilbert, and 

not briefed in the case before it, the Court did not reach the issue, as both 

the operation of the farm and the specific activity thereon began more than 

one year prior to the filing of the complaint. Id.
J-A32041-17 & J-A32042-17

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Thus, the Courts in Horne, Gilbert, and Branton noted different 

possible interpretations of the term “agricultural operation,” but declined to 

decide the issue because the result was the same regardless. Because the 

meaning of the term could determine the outcome of the instant case, we 

must make the first definitive ruling as to the meaning of “agricultural 

operation” in the first prong of the test for application of subsection 954(a).

The trial court determined that the agricultural operation is the CAFO.7 

Trial Court Opinion, 4/13/2017, at 6. Plaintiffs agree; Defendants do not.8 

With the CAFO as the agricultural operation that is the starting point for the 

test for subsection 954(a)’s applicability, they claim that the third prong of 

the test is not satisfied here. Plugging the relevant terms into the test we 

set forth on page 7 supra, the result would be as follows.

(1) The CAFO operated for at least one year prior to the filing of 

Plaintiffs’ nuisance complaints; and

(2) the spreading of LSM is a normal agricultural operation; but

 

7 Again, whether subsection 954(a) is applicable is a jurisdictional question 

of law. Gilbert, 131 A.3d at 15. Hence, our standard of review is de novo, 

and our scope of review is plenary. See, e.g., Ramalingam v. Keller 

Williams Realty Grp., Inc., 121 A.3d 1034, 1042 (Pa. Super. 2015). 

Furthermore, as is always the case, “we are not limited by the trial court’s 

rationale and that we may affirm on any basis.” Blumenstock v. Gibson, 

811 A.2d 1029, 1033 (Pa. Super. 2002). 

8 Although at times Defendants point to the CAFO as the agricultural 

operation against which the action was brought, see, e.g., Defendants’ 

Briefs at 10, the pertinent part of their argument instead views the 

construction of the CAFO facilities as a substantial alteration to the physical 

facilities of the Will-O-Bett Farm. See Defendants’ Briefs at 25-32.
J-A32041-17 & J-A32042-17

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(3) neither has the spreading of LSM existed substantially 

unchanged since the established date of the CAFO, nor have 

the CAFO’s physical facilities been substantially expanded or 

altered.

In other words, Plaintiffs’ position is that Defendants’ obtaining and 

operating the CAFO under a nutrient management plan does not extinguish 

Plaintiffs’ nuisance claims because Defendants’ spreading of the LSM, which 

began at some disputed time after the CAFO had commenced operations, 

was not commensurate with a substantial expansion or alteration of the 

CAFO’s physical facilities. Plaintiffs’ Briefs at 20-28. 

Plaintiffs’ interpretation is contrary to both the language and the 

purpose of the RTFA. Rather, we hold that the agricultural operation in 

question in the first prong of the test in this case is the Will-O-Bett Farm, not 

the CAFO. The relevant statutory language is “No nuisance action shall be 

brought against an agricultural operation....” 3 P.S. § 954(a). Plaintiffs did 

not bring actions against the CAFO or against the spreading of LSM; rather 

those are the “conditions or circumstances complained of” by Plaintiffs. Id. 

Plaintiffs brought their actions against the owners and operators of the farm, 

not the farming process. Indeed, the LSM is not spread on the CAFO—it is 

spread on the surrounding fields of the Will-O-Bett Farm that are farmed by 

Defendant Zehner.

This interpretation is also consistent with the legislative history, which 

speaks of providing “farmers with an immediate protection from nuisance 
J-A32041-17 & J-A32042-17

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suits after expansion of an agricultural operation if the operation has an 

approved nutrient management plan prior to the commencement of the 

expanded operation.” House Committee on Appropriations, Senate Bill 682 

Fiscal Note, 11/24/1997. It was the agricultural operation that is the Will-OBett Farm that chose to expand by building the CAFO, having first obtained 

approval for a nutrient management plan—a site-specific plan prepared for 

the Will-O-Bett Farm, for manure to be spread on the farmland surrounding 

the CAFO. Hence, viewing the agricultural operation as the farm that chose 

to expand furthers the FTRA’s stated goal: “encourage the development and 

improvement of its agricultural land” and to stop farmers from being 

“discouraged from making investments in farm improvements” by the threat 

of nuisance suits. 3 P.S. § 951. 

Having determined that the agricultural operation in the instant case is 

the Will-O-Bett Farm, and that neither the operation of the CAFO nor the 

spreading of LSM has existed since the farm began operating in 1955, we 

consider whether the farm’s “physical facilities have been substantially 

expanded or altered.” 3 P.S. § 954(a). It is beyond peradventure that the 

construction of the 40,000-square-foot CAFO and its 1.8-million-gallon 

storage pit was a substantial expansion and alteration to the physical 

facilities of the Will-O-Bett farm. Accord Branton, 159 A.3d at 555

(holding that the construction of a 2.4 million gallon storage tank for food 

processing waste constituted a substantial change to the physical facilities). 
J-A32041-17 & J-A32042-17

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Plaintiffs do not dispute that Defendants obtained approval for a 

nutrient management plan before they started operating the CAFO.9 Under 

the plain language of the statute, because the construction of the CAFO was 

a substantial alteration to a lawfully-operated agricultural operation, and the 

condition Plaintiffs complain of had been addressed in a nutrient 

management plan approved prior to its commencement, Plaintiffs have no 

nuisance claims against Defendants related to the spread of the LSM unless 

the record shows that Defendants have failed to comply with the nutrient 

management plan. 

Plaintiffs do proffer an argument that Defendants have not operated in 

compliance with the nutrient management plan. Plaintiffs’ Briefs at 28-29. 

In support, Plaintiffs cite only to the affidavit of Malcolm Pevyak. According 

to his affidavit, Pevyak took some samples of water that ran off of 

Defendants’ land before and after the switch to LSM and sent them off to a 

lab, and the results showed increased amounts of bacteria “as a result of the 

manure application.” Affidavit of Malcolm Plevyak, 8/29/2016, at ¶ 11. 

However, there is no indication from Plaintiffs that Pevyak is qualified to 

 

9 The Dagostins attached versions of the Will-O-Bett Farm’s nutrient 

management plan to their motion for summary judgment. Dagostins’ Motion 

for Summary Judgment, 7/1/2016, at Exhibit 1a to Exhibit D. It specifies, 

for example, on which fields of the farm the LSM is to be spread, when, how, 

and at what rate. 
J-A32041-17 & J-A32042-17

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offer opinion causation testimony as to the cause of the test results.10 Nor 

do either Pevyak’s affidavit or Plaintiffs’ briefs explain what regulation or 

provision of the nutrient management plan Defendants have violated. 

Indeed, Pevyak in his affidavit acknowledged that when he reported his 

findings to the Department of Environmental Protection (DEP), “the DEP 

would return my calls and tell me they found nothing.” Id. at ¶ 13.

Because the record does not contain any indication otherwise, the trial 

court correctly concluded that “all of the competent evidence before the 

[c]ourt indicates that the CAFO has ... been in full compliance with its 

approved nutrient management plan.” Trial Court Opinion, 4/13/2017, at 6. 

In sum, our application of subsection 954(a)’s three-prong test is as 

follows.

(1) The Will-O-Bett Farm lawfully operated for at least one year 

prior to the filing of Plaintiffs’ nuisance complaints; and

(2) the spreading of LSM in the fields of the Will-O-Bett Farm is a 

normal agricultural operation; and

(3) while the spreading of LSM on the fields of the Will-O-Bett 

Farm (and the operation of the CAFO, for that matter), have not 

existed since the established date of the Will-O-Bett Farm, the 

Will-O-Bett Farm’s physical facilities were substantially expanded 

or altered by the building of the CAFO, and were addressed in a 

nutrient management plan approved prior to the commencement 

of the CAFO’s operation, and with which the Will-O-Bett Farm 

has operated in compliance at all relevant times.

 

10 At oral argument on the motions for summary judgment in the trial court, 

Plaintiffs acknowledged that they would need an expert to establish that 

there was pollution caused by Defendants. N.T., 11/3/2016, at 80. 
J-A32041-17 & J-A32042-17

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We do not doubt that Plaintiffs are legitimately aggrieved by the odors 

associated with the Will-O-Bett’s expanded/altered operation.11 However, 

our legislature has determined that such effects are outweighed by the 

benefit of established farms investing in the expansion of agricultural 

operations in Pennsylvania, in regulatory compliance with approved nutrient 

management plans. See Beidel, Pennsylvania's Right-to-Farm Law, 110 

Penn St. L. Rev. at 172 (“Given the benefits of nutrient management plans 

to the environment, this amendment is beneficial not only to farmers but 

also to the community. It was part of a far-reaching legislative plan to 

encourage the voluntary development of nutrient management plans and to 

decrease the deleterious effects of improperly handled manure on the 

environment.”) (footnotes omitted). Such policy decisions are the province 

of the legislature.

Because the record reveals that, as a matter of law, all three prongs of 

the blueprint for protection from nuisance claims provided by subsection 

954(a) have been established, Plaintiffs’ claims are barred and the trial court 

properly granted Defendants’ motions for summary judgment. 

Orders affirmed. 

 

11 We do note that the spreading of LSM on the fields on the Will-O-Bett 

Farm is not a daily, or even regular, occurrence. Rather, the spreading 

occurs, on different fields of the farm, on approximately 8 to 12 days in the 

spring (April/May), and about half that many days in the fall (early 

November). 
J-A32041-17 & J-A32042-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2018