Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burlingame v. Dagostin

Superior Court of Pennsylvania

March 29, 2018

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 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, AppelleesKIP 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, WILLIAMFEDDER, 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 DOUGLAS ZEHNER, Appellees

          Appeal from the Order Entered April 13, 2017 in the Court of Common Pleas of Luzerne County Civil Division at No(s): 2015-2092, 2014-6202

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

          OPINION

          STRASSBURGER, J.

         Before us are identical issues raised in two appeals from orders granting summary judgment to Defendants[1] in 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 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-million-gallon storage pit for containing the hog urine and feces generated by the up to 4, 800 hogs that are concentrated[3] 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 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' Briefs[4] 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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.