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Gilbert v. Synagro Cent., LLC

Superior Court of Pennsylvania

April 15, 2014

RALPH GILBERT, GLORIA GILBERT, MICHELLE TORGERSON, EDWIN TORGERSON, MELDA BITTORF, BEVERLY COX, WILLIAM COX, KIMBERLY MILES, CLEA FOCKLER, JOHN FOCKLER, LINDA ECKERT, SCOTT ECKERT, WILLIAM STRINE, KENNY JASINSKI, DENNIS JASINSKI, KATHRYN JASINSKI, JOSEPH JASINSKI, PATRICIA UNVERZAGT, MEGAN JACOBS, BARBARA UNVERZAGT, DONNA PARR, JEFF FODEL, WENDY FODEL, JENNIFER JASINSKI, JOHN JASINSKI, JUDY QUEITZSCH, JEAN FRY, RICK McSHERRY, JOHN FREESE, DONNA LYNN FREESE, JEFF VAN VOORHIS, SUSAN LEE FOX, TERRENCE FANCHER AND DONNA FANCHER, Appellants
v.
SYNAGRO CENTRAL, LLC, SYNAGRO MID-ATLANTIC, GEORGE PHILLIPS, HILLTOP FARMS AND STEVE TROYER, Appellees

Argued December 10, 2013

Page 38

Appeal from the Order of the Court of Common Pleas, York County, Civil Division, No. 2008-SU-003249-01. Before COOK, J.

John Kotsatos, Bethlehem, for appellants.

Curtis N. Stambaugh, Harrisburg, for Phillips and Hilltop Farms, appellees.

Neil A. Slenker, York and James B. Slaughter, Washington, D.C., for Synagro Central and Synagro Mid-Atlantic, appellees.

BEFORE: DONOHUE, OTT and PLATT [*], JJ.

OPINION

Page 39

DONOHUE, J.

Appellants, Ralph Gilbert, Gloria Gilbert, Michelle Torgerson, Edwin Torgerson, Melda Bittorf, Beverly Cox, William Cox, Kimberly Miles, Clea Fockler, John Fockler, Linda Eckert, Scott Eckert, William Strine, Kenny Jasinski, Dennis Jasinski, Kathryn Jasinski, Joseph Jasinski, Patricia Unversagt, Megan Jacobs, Barbara Unverzagt, Donna Parr, Jeff Fodel, Wendy Fodel, Jennifer Jasinski, John Jasinski, Judy Queitzsch, Jean Fry, Rick Mcsherry, John Freese, Donna Lynn Freese, Jeff Van Voorhis, Susan Lee Fox, Terrence Fancher, and Donna Fancher (collectively, the " Residents" ), appeal from the trial court's order granting summary judgment in favor of Synagro Central, LLC and Synagro Mid-Atlantic (together " Synagro" ), George Phillips (" Phillips" ), Hilltop Farms (" Hilltop" ), and Steve Troyer (" Troyer" ) (collectively, the " Farm Parties" ). Because we conclude, inter alia, that issues of material fact remain with respect to whether the use of biosolids in this case is a " normal agricultural operation" under the Right To Farm Act, 3 P.S. § § 951-957 (the " RTFA" ), we reverse the trial court's order and remand the case for further proceedings consistent with this decision.

The Residents all own or reside at properties located adjacent to a 220-acre farm in New Freedom, York County, Pennsylvania (the " Farm" ), owned by Phillips since 1986. On this farmland, Phillips owns and operates Hilltop Farms, a farm business. Since 2003, Troyer has leased portions of the farmland from Phillips, and has planted and harvested crops, including corn and soybeans. Synagro contracts with municipalities to recycle and transport biosolids for land applications, and in 2005 obtained a permit from the Pennsylvania Department of Environmental Protection (the " PaDEP" ) to provide " land application and long-term storage services" of biosolids to Phillips at Hilltop Farm.

According to the Residents, biosolids (sometimes referred to as " sewage sludge" ), is a " viscous, semi-solid mixture of bacteria, virus-laden organic matter, toxic metals, synthetic organic chemicals, and settled solids removed from domestic and industrial waste water at sewage treatment plants." Amended Complaint, 7/23/2010, at ¶ 53. Sewage sludge contains " prescription drug products and their biologically active metabolites, synthetic chemicals, and other industrial chemicals, waste, and toxic runoff," and the sludge treatment process often raises the pH to a level where it " is irritating to skin, nose, throat and lungs, and can cause rashes and burns." Id. at ¶ ¶ 55-56.

Beginning in March 2006 and continuing until April 2009, approximately 11,635 wet tons of biosolids were applied to fields at the Farm, including as follows:

o Over three days in March 2006, approximately 1,113 tons of biosolids were applied on three fields (nos. 7,9, and 11) totaling approximately 67 acres (an overall average of 16 and

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one half tons per acre, or about seven pounds per square yard);
o In May 2006, approximately 437 tons were applied on two fields (nos. 1 and 3) totaling approximately 48 acres over two days (an overall average of about nine and one half tons per acre);
o Over three days in September 2006, approximately 1,100 tons were applied on two fields (nos. 2 and 5) totaling approximately 40 acres (an average of more than 27 tons per acre, or about 11 pounds per square yard);
o In late March through mid-April 2007, approximately 1,504 tons were applied on four fields (nos. 7,9,11, and 12) totaling approximately 74 acres (an average of about 20 tons per acre);
o In late April and May 2007, approximately 1.301 tons were applied to one field (no. 14) of approximately 54 acres (an average of about 24 tons per acre);
o Over three days in July 2007, approximately 1,774 tons of biosolids were applied on six fields (nos. 1,3,6,8,10, and 13) totaling approximately 100 acres (an average of less than 18 tons per acre, or about 7.5 pounds per square yard);
o In January and February 2008, approximately 1,593 tons were applied to six fields (nos. 6,7,8,9,10, and 11) totaling approximately 110 acres (an average of about 13 and one half tons per acre);
o In October 2008, approximately 424 tons were applied on three fields (nos. 1,4, and 8) totaling approximately 59 acres (an average of about 13 and one half tons per acre); and
o In March and April 2009, approximately 1,430 tons were applied to eight fields (nos. 2,3,5,9, and 11-14) totaling approximately 120 acres (an average of 12 tons per acre).

Farm Parties' Summary Judgment Exhibits J and K. The biosolids were spread over the surface of the fields and were not immediately tilled or plowed into the soil. Id. at Exhibit F. According to the Residents, as soon as the spreading of biosolids at the Farm began, they immediately noticed extremely offensive odors, " typically smelling like a herd of dead, rotting deer." Amended Complaint, 7/23/2010, at ¶ 86.

The application of the biosolids was monitored by the PaDEP and the York County Solid Waste Authority, and three notices of violation were issued, although none involved odors emanating from the Farm.[1] Farm Parties' Summary Judgment Exhibits at Exhibits O, P, and Q. In October 2009, Snyagro notified the PaDEP that it was suspending the use of biosolids at the Farm. Id. at Exhibit S.

On July 3, 2008 and July 10, 2008, the Residents filed two similar three-count complaints. On December 1, 2008, the trial court consolidated the two actions. On July 23, 2010, with leave of court the Residents filed a joint Amended Complaint, which sets forth three counts. In Count I, the Residents allege that the biosolids activities of the Farm Parties have resulted in offensive conditions and created a health hazard for those living on the adjoining properties, in the nature of a private nuisance. In Count II, the Residents allege that the Farm Parties have

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acted negligently because the Farm Parties failed in their duty to properly handle and dispose of the biosolids in a manner to avoid the potential harm to the Residents. In Count III, the Residents allege that biosolids activities of the Farm Parties constitute a trespass onto their land. The Residents seek injunctive relief, compensatory and punitive damages, and counsel fees and costs.

On July 25, 2011, the Farm Parties filed a Joint Motion for Summary Judgment, and the Residents filed a response in opposition. On October 14, 2011, the trial court denied the motion for summary judgment, stating as follows:

Because RTFA does not specifically mention sewer sludge or biosolids, it is not clear, as a matter of law, that the application of biosolids is a 'normal agricultural operation' under the protection of the RTFA. Even though each side refutes the other's position whether the application of sewer sludge/biosolids is a normal agricultural operation, neither side has presented any supporting evidence.
* * *
Because [the Farm Parties] have not provided any supporting evidence to show what constitutes 'normal agricultural operations' or that application of biosolids is a 'normal agricultural operation,' the Motion for Summary Judgment is denied.

Trial Court Opinion, 10/14/2011, at 8-9.

On July 2, 2012, after discovery, the Farm Parties filed a second Joint Motion for Summary Judgment, and the Residents again filed a response in opposition. In an opinion and order dated December 28, 2012, the trial court granted the motion for summary judgment, concluding that the Residents' nuisance count was barred by the statute of repose set forth in section 954(a) of the RTFA and that the Residents had failed to plead a prima facie claim for negligence or trespass.

This timely appeal followed, in which the Residents present the following two issues for our consideration and determination:

1. Whether the trial court erred in granting summary judgment and holding that the Residents' nuisance and negligence claims were barred by the one-year limitation in the [RTFA].
2. Whether the trial court erred in granting summary judgment and holding that the Residents failed to plead prima facie claims for negligence and trespass.

Residents' Brief at 2. The following parties have submitted amicus curiae briefs, all in support of the position of the Farm Parties: the PaDEP, the Office of the Attorney General of the Commonwealth of Pennsylvania and the Pennsylvania Department of Agriculture, the City of Philadelphia, the Pennsylvania Municipal Authorities Association and the Allegheny County Sanitary Authority, the Pennsylvania Farm Bureau, the PennAg Industries Association, and the Mid-Atlantic ...


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