J   -A30019-16
                                2017 PA Super 88

KELLY BRANTON; SHAWN BRANTON;                      IN THE SUPERIOR COURT OF
MITCHELL BRANTON, A MINOR, BY                            PENNSYLVANIA
KELLY BRANTON AND SHAWN BRANTON,
GUARDIANS; LILLY BRANTON, A MINOR,
BY KELLY BRANTON AND SHAWN
BRANTON, GUARDIANS; BECK
BRANTON, A MINOR, BY SHAWN
BRANTON, GUARDIAN; PAT
COURTWRIGHT; PHILIP COURTWRIGHT;
GARY E. JOHNSON; GEORGINA B.
JOHNSON; CAROL KLINE; RICHARD
LONG; ANN MCKEAN; THOMAS J.
MCKEAN; DEBORAH A. MUTHLER;
STEPHEN K. MUTHLER; STEPHEN P.
RICE; SUSAN RICE; AND KIM SHIPMAN,

                                 Appellants

                       v.

NICHOLAS MEAT, LLC; BRETT BOWES
D/B/A BOWES FARM; CAMERER FARMS,
INC.; AND JAB LIVESTOCK, LLC.,

                                  Appellees            No. 536 MDA 2016


                  Appeal from the Judgment Entered March 4, 2016
                 In the Court of Common Pleas of Lycoming County
                           Civil Division at No(s): 13-01502

BEFORE:      BOWES, OLSON and STABILE, JJ.

OPINION BY OLSON, J.                                   FILED APRIL 04, 2017

        Appellants, Kelly Branton et al, appeal from the judgment entered on

March 4, 2016 in favor of Nicholas Meat, LLC ("Nicholas"), Brett Bowes d/b/a

Bowes Farm, Camerer Farms, Inc. ("Camerer Farm" and together with
J   -A30019-16

Nicholas and Bowes Farm "Farmers"), and JAB Livestock, LLC ("JAB").1 After

careful consideration, we hold that Appellants' action is partially barred by

the Right to Farm Act ("RTFA"),            3 P.S. §§   951-957. Accordingly, we affirm

in    part, vacate in part, and remand for further proceedings consistent with

this opinion.

         The factual background and procedural history of this case are as

follows. Nicholas operates          a   slaughterhouse in Loganton, Pennsylvania. The

slaughterhouse generates food processing waste ("FPW"),2 which                     is    rich in

nutrients essential           to   farming.    Beginning    in   2011,    Nicholas       began

transporting     FPW   from the slaughterhouse to the Bowes and Camerer Farms.

The FPW is immediately spread on the Bowes and Camerer Farms and/or

stored in    a   2,400,000 gallon tank on the Bowes Farm ("the storage tank").


1JAB's involvement in the legal issues we address herein                 is   minimal.     It   is
only responsible for transporting food processing waste.
2
     FPW is defined as:

         Residual materials in liquid and solid form generated in the
         slaughtering of poultry and livestock, or in processing and
         converting fish, seafood, milk, meat[,] and eggs to food
         products. The term includes residual materials generated in the
         processing, converting[,] or manufacturing of fruits, vegetables,
         crops[,] and other commodities into marketable food items. The
         term also includes vegetative residuals from food processing
         activities that are usually recognizable as part of a plant or
         vegetable, including cabbage leaves, bean snips, onion skins,
         apple pomace[,] and grape pomace.

25 Pa. Code      §   287.1.



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The FPW stored on the Bowes Farm is later spread on the Bowes and

Camerer Farms.

         On March 17, 2011, the Pennsylvania Department of Environmental

Protection ("DEP") issued Camerer Farm           a   notice of violation ("NOV").3

Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at

Exhibit    3.    That   NOV   stated    that Camerer Farm violated            35   P.S.

§§ 6018.302(a) and 6018.610(1) by spreading FPW between February 25

and 27, 2011.       DEP   informed Camerer Farm that it needed            a   nutrient

management plan4 or needed       a     permit for spreading   FPW on its land.     The

following day, March 18, 2011, DEP issued        a   NOV to Nicholas for permitting

its FPW to be spread on Camerer Farm between February 25 and 27, 2011.

Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at

Exhibit 4. That NOV stated that Nicholas violated 25 Pa. Code         §   291.201(a)

in   allowing its FPW to be spread on Camerer Farm.

         On April 15, 2013, DEP issued a NOV to Nicholas for providing FPW

which was spread on Bowes Farm in late March and/or early April 2013.

3 All of the NOV's issued by DEP were the result of complaint inspections. In
other words, the only reason DEP investigated Farmers was because a
subset of Appellants complained to DEP. As discussed more fully infra, the
reasons for DEP's site visits to Farmers' facilities explains, in part, why we
conclude that Appellants' construction of the term "lawfully" in               3   P.S.
§ 954(a) violates several principals of statutory construction.

4
     Anutrient management plan is defined, in relevant part, as "[a] written
site -specific plan which incorporates best management practices to manage
the use of plant nutrients for crop production and water quality
protection[.]" 3 P.S. § 503.


                                          -3
J   -A30019-16

See Appellants' Brief in Opposition to Motion for Summary Judgment,

1/19/16, at Exhibit            5.   That NOV stated that Nicholas violated 35 P.S.

§   6018.610(9) and 25          Pa. Code §       287.101(b)(2) by permitting its    FPW to be

spread within 150 feet of           a   stream and in an area not covered by        a    nutrient

management plan.               That same day, April 15, 2013, DEP issued            a    NOV to

Bowes Farm for spreading FPW in late March and/or early April 2013.                         See

Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at

Exhibit 6. That NOV stated that spreading FPW within 150 feet of                     a   stream

and    in    an area      not covered by           a   nutrient management plan violated

section 287.101(b)(2).

        On    June       14,    2013, Appellants         filed   a   complaint which alleged

negligence and       a    temporary private nuisance.5 Less than one month later,

DEP issued a NOV to Bowes Farm                     for spreading FPW on June 25, 2013.

Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at

Exhibit 7. That NOV stated that Bowes Farm violated section 287.101(b)(2)

by spreading FPW during summer when the relevant nutrient management

plan stated that FPW would not be spread during summer.

        On    November 15, 2013, Appellants filed their second amended

complaint.        On       December        18,    2015,     Farmers     moved for   summary




5
    Appellants later withdrew the negligence portion of their complaint.



                                                  -4
J   -A30019-16

judgment.6        As part of   their summary judgment motion, Farmers argued

that Appellants' claims were barred by RTFA's statute of repose. On March

4,    2016, the trial court granted Farmers' summary judgment motion.

Contemporaneously therewith, the trial court issued an opinion outlining its

rationale for granting summary judgment.         Branton   v.   Nicholas Meat,
LLC, 2016 WL 1270378 (C.C.P. Lycoming Mar. 4, 2016). This timely appeal

followed.'

        Appellants present three issues for our review:

         1. Did the [t]rial [c]ourt err as a matter of law in holding on
           [s]ummary [j]udgment that [Appellants'] claims were barred
           by [RTFA] despite the evidence presented by [Appellants]
           that [Farmers'] practice of spreading [FPW] was unlawful and
           in violation of various regulations, codes[,] and statutes?

         2. Did the  [t]rial [c]ourt err as a matter of law in rejecting
            [Appellants'] claim that [Farmers'] practice of spreading
            [FPW] was not a "normal agricultural operation" under the
            RTFA?

         3. Did the [t]rial [c]ourt err as a matter of law in holding on
            [s]ummary [j]udgment that [Appellants'] claims were barred
            by RTFA despite the evidence presented by [Appellants] that
           the addition of a[n FPW] waste storage tank on the Bowes
           Farm in April 2012 was a substantial change under the RTFA?

6
     JAB filed a separate motion which joined in Farmers' motion   for summary
judgment.

7    On April 5, 2016, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal ("concise statement"). See
Pa.R.A.P. 1925(b).     On April 26, 2016, Appellants filed their concise
statement. On May 11, 2016, the trial court issued an order which stated
that the reasons it granted summary judgment appeared as of record in its
March 4, 2016 opinion. See Pa.R.A.P. 1925(a). All issues raised on appeal
were included in Appellants' concise statement.


                                        -5
J   -A30019-16


Appellants' Brief at 7.

        All three of Appellants' issues challenge the trial court's determination

that   RTFA bars   their action against Farmers and JAB. "The trial court's entry

of summary judgment presents           a     question of law, and therefore our

standard of review is de novo and our scope of review is plenary." Fisher v.

A.O. Smith Harvestore Products, Inc., 145 A.3d 738, 741 (Pa. Super.

2016) (en banc) (citation omitted).

        RTFA provides, in   relevant part, that:

        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 [3 Pa.C.S.A. § 506], and is otherwise in compliance
        therewith[.]

3 P.S. §     954(a). Section 954(a)   is a   statute of repose and not   a   statute of

linnitations.8 Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 15 (Pa. 2015).


8
    As this Court has explained:

        A  statute of repose, as opposed to a statute of limitations, is a
        statute barring any suit that is brought after a specified time
        since the defendant acted even if this period ends before the
(Footnote Continued Next Page)


                                           -6
J   -A30019-16

There are three key requirements for section 954(a) to bar               a       nuisance

action: (1) the agricultural operation 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 operation, or (b) if 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.9 See    3 P.S. §   954(a).


(Footnote Continued)
        plaintiff has suffered a resulting injury. Another distinguishing
        characteristic is the corresponding legal effect of each statute.
        Statutes of limitations are a form of procedural law that bar
        recovery on an otherwise viable cause of action. Conversely,
        statutes of repose operate as substantive law by extinguishing a
        cause of action outright and precluding its revival.

Graver v. Foster Wheeler Corp., 96 A.3d 383, 386-387                     (Pa.      Super.
2014), appeal denied, 113 A.3d 280 (Pa. 2015) (ellipsis, internal alteration,
quotation marks, footnote, and paragraph break omitted); see also CTS
Corp. v. Waldburger, 134 S.Ct. 2175, 2182-2184 (2014). Thus, "[w]hile a
statute of limitations merely bars a party's right to a remedy, a statute of
repose completely abolishes and eliminates a party's cause of action."
Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 15 (Pa. 2015) (citation
omitted).

9 In Gilbert, our Supreme Court recited a simplified version of these
requirements. See Gilbert, 131 A.3d at 19 (citation omitted). This case,
however, requires us to apply requirements that were not implicated in
(Footnote Continued Next Page)


                                       -7
J   -A30019-16

        We begin our analysis by examining what standard governed the trial

court's consideration of Farmers' summary judgment motion.                 Appellants

argue that the trial court was required to apply the general summary

judgment standard. According to Appellants, summary judgment was only

appropriate if "the record clearly demonstrates that there [were] no genuine

issue of material          fact[.]"   Telwell Inc. v. Grandbridge Real Estate
Capital, LLC, 143 A.3d 421, 425               (Pa. Super. 2016)    (citation omitted).

According to Appellants, the trial court (and this Court) "must view the

record in the light most favorable to [Appellants], resolving all doubts as to

the existence of       a   genuine issue of material fact against [Farmers]."      Id.
(citation omitted).1° Farmers, on the other hand, argue that the applicability

of the statute of repose was          a   purely legal question for the trial court to

decide. See Smith v. Workmen's Comp. Appeal Bd. (Concept Planners

& Designers), 670 A.2d 1146, 1148-1149 (Pa. 1996). Thus, according to

Farmers, there was no genuine issue of material fact relating to the

applicability of the statute of repose.

(Footnote Continued)
Gilbert.    Therefore, we list all of the requirements set forth in section
954(a).

1°The thrust of Appellants' argument that fact finding precludes the entry of
summary judgment on their claims is that various inquiries must be resolved
before deciding whether certain activities or objects fall within the statutory
definitions drawn by section 954(a) of the RTFA. Such inquiries, as our
Supreme Court held and as we shall explain, involve application of statutory
definitions to record facts and, hence, constitute matters of statutory
construction.


                                             -8
J   -A30019-16

        We agree with Farmers that the applicability of the statue of repose in

this case was    a   purely legal question that the trial court could decide on   a


motion for summary judgment.           In Gilbert, our Supreme Court explained

that

        generally, statutes of repose are jurisdictional and their scope is
        a question of law for courts to determine.    .   . [T]here may be
                                                              .


        cases in which a statute of repose's applicability turns on
        resolution of factual issues. In such cases, the facts relevant to
        jurisdiction are so intertwined with those relating to the merits of
        the action, the jurisdictional determination will necessarily
        involve fact finding.

Gilbert,   131 A.3d at 15 (internal citations omitted).

        In Gilbert, the appellees were individuals who owned or resided on

properties adjacent to    a   farm known as Hilltop Farms. Biosolids were spread

on 14 fields of Hilltop Farms.     The appellees alleged that extremely offensive

odors emanated from the spread biosolids.           The appellees sued various

entities and individuals, including the owner of Hilltop Farms, claiming

private nuisance, negligence, and trespass. Appellants moved for summary

judgment on the basis that the appellees' nuisance claim was barred by the

one-year statute of repose in section 954(a) of the RTFA. In finding that the

RTFA    statute of repose barred the appellees' nuisance claim, our Supreme

Court held as follows:

        the only question was whether the application of biosolids is a
        "normal agricultural operation;" there was no pertinent question
        regarding the character of the substance in this specific case or
        appellants' use of it at Hilltop Farms.
                                        * * *



                                         -9
J   -A30019-16


        [T]he necessary facts are undisputed and of record. These facts
        include the timing and quantity of appellants' application of
        biosolids, the responsive actions by appellees and the timing of
        those actions, the regulatory oversight of appellants' biosolids
        application, and the history and extent of biosolids usage in
        Pennsylvania's farming industry.       . [N]either party's conduct is
                                                   .   .


        unknown or in dispute. Rather, the only question is whether
        appellants meet the statutory requirements necessary to avail
        themselves of the RTFA's statute of repose. This question does
        not involve fact finding; it involves the application of a statute's
        definition to the record's facts. It is well settled that determining
        whether an activity, entity, or object falls within the meaning of
        a statutory definition is a matter of statutory interpretation, and
        thus is a question of law for the court to decide. Accordingly,
        the determination of whether [section] 954(a) applied in the
        instant matter was a question of law for the trial court.
                                           * * *


        Th[e General Assembly's intent in passing RTFA] cannot be
        achieved by permitting the applicability of the RTFA's statute of
        repose to be dependent on an idiosyncratic determination of a
        farming practice's "normality" as perceived by a jury in a specific
        case.  .   .  [T]he inquiry under [section] 954(a)-whether an
                        .


        activity is a "normal agricultural operation"-is a categorical
        inquiry for the court. Otherwise, agricultural practices would be
        subject to nuisance suits based on varying local perceptions of
        what constitutes a "normal agricultural operation," as parochial
        opinion differs from jury to jury and juror to juror. What is
        common in one area may be foreign to another. Having courts
        apply the RTFA's definitions achieves the meaningful degree of
        legal certainty, uniformity, and consistency that the RTFA was
        intended to provide to farms.

Gilbert,    131        A.3d   at 16-18 (internal citations, footnote,         and   certain

paragraph breaks omitted).

        All three of the issues raised by Appellants in this case similarly deal

with pure questions of law.             In their first issue, Appellants argue that

Farmers' activities were unlawful.           There         is   no dispute about what the


                                           - 10 -
J   -A30019-16

relevant federal, state, and local laws were during the applicable time period

nor is there any dispute about the factual activities surrounding Farmers' use

and storage of FPW.          Instead, the only dispute       is   whether those activities

violated various federal, state, or local laws and, if so, whether such non-

compliance resulted in Farmers' activities being unlawful.                        Whether     a


practice violates federal, state, or local law is        a   pure question of law which

the trial court could decide on summary judgment.                       Similarly, whether    a


violation of federal, state, or local law rendered Farmers' agricultural

operations unlawful is       a   pure question of law which the trial court could

decide on summary judgment.

        In their second issue, Appellants argue that spreading FPW is not                     a


normal agricultural operation. As in Gilbert, there               is   "no pertinent question

regarding the character of the substance in this specific case or [Farmers']

use of it at [the Bowes and Camerer Farms]."                  Gilbert,      131 A.3d at 16.

Thus, just as our Supreme Court held that whether biosolid use is                   a   normal

agricultural operation was        a   pure question of law in Gilbert, we hold that

whether the spreading and storage of          FPW is a   normal agricultural operation

in   this case   is a    question of law which the trial court could decide on

summary judgment.

        In their third issue, Appellants argue that the addition of                a    storage

tank on the Bowes Farm constituted            a   substantial change under the RTFA.

Again, there     is no   factual dispute about the erection of the storage tank on
J   -A30019-16

the Bowes Farm.           Instead, the only question      is   whether the erection of the

storage tank was         a   "substantial change" under section 954(a) that occurred

within one year of the date on which Appellants filed their original complaint.

This is   a   question of statutory interpretation.            As such, it presents a pure

question of law which the trial court could decide on summary judgment.

        Having determined that all three of Appellants' issues raise pure

questions of law (specifically questions of statutory interpretation) which the

trial court properly decided on summary judgment, we turn to                            a    de novo

review of those determinations. "When interpreting                  a       statute, this Court    is

guided by the Statutory Construction Act [] of 1972,                    1    Pa.C.S.A. §§ 1501-

1991."        CitiMortgage, Inc. v. Barbezat,             131 A.3d 65, 73 (Pa. Super.

2016). "Our paramount interpretative task            is   to give effect to the intent of

our General Assembly in enacting the particular legislation under review."

Egan v. Egan, 125 A.3d 792, 795 (Pa. Super. 2015) (internal alteration and

citation omitted). "[T]he best indication of the General Assembly's intent in

enacting      a   statute may be found in its plain language[.]"                            Watts v.
Manheim Twp. Sch. Dist., 121 A.3d 964, 979                         (Pa. 2015).              We must

construe words and phrases in statutes "according to rules of grammar and

according to their common and approved usage[.]"                    1       Pa.C.S.A.   §   1903(a).

"One way to ascertain the plain meaning and ordinary usage of terms is by

reference to      a   dictionary definition."   In re Beyer,       115 A.3d 835, 839 (Pa.

2015) (citation omitted).



                                            - 12 -
J   -A30019-16

        When the plain language of               a    statue is ambiguous, we may consider,

inter a/ia, the object to             be obtained and the consequences of a particular

interpretation.      See      1   Pa.C.S.A. §§ 1921(c)(4) and 1921(c)(6).        Moreover,

when interpreting         a   statute we must presume "[t]hat the General Assembly

[did]   not intend        a       result that    is    absurd, impossible of execution   or

unreasonable."        1   Pa.C.S.A.       §   1922(1). We must also presume "[t]hat the

General Assembly intends to favor the public interest as against any private

interest."    1   Pa.C.S.A.       §   1922(5).

        In their first issue, Appellants argue that the trial court erred in

determining that Farmers' agricultural operations were lawfully in operation

since at least June 14, 2012, i.e., one year prior to the filing of the instant

lawsuit.     Appellants aver that Farmers' operation were unlawful up until at

least April 14, 2013, i.e., two months prior to the filing of Appellants'

complaint.        Specifically, Appellants argue that the NOVs issued by DEP

indicate Farmers' operations were unlawful. Moreover, Appellants argue that

Farmers failed to properly control odors as required by various state

regulations. Thus, according to Appellants, their lawsuit was filed prior to

the date their cause of action was extinguished by RTFA's statute of repose.

Farmers, on the other hand, contend that they have lawfully spread FPW

since 2011, i.e., more than one year prior to the filing of the instant action.

        The relevant portion of section 954(a) states that, "No nuisance action

shall be brought against an agricultural operation which has lawfully been in



                                                 - 13 -
J   -A30019-16

operation for one year or more prior to the date of bringing such action[.]"

3 P.S.   954(a).11 The phrase in dispute is "has lawfully been in operation."

Specifically, Appellants argue that this phrase requires that the agricultural

operation must not have violated    a   single federal, state, or local law during

the relevant one-year time period.       On the other hand, Farmers argue     that

section 954(a) only requires that an agricultural operation be in substantial

compliance with relevant federal, state, and local laws.

         RTFA does    not define the term "lawfully."      Appellants, therefore,

correctly turn to the dictionary definition of the term in order to ascertain its

plain meaning.       Appellants' Brief at 24-25; see Beyer, 115 A.3d at 839.

Black's Law Dictionary defines the term lawful as, "Legal; warranted or

authorized by the law; having the qualifications prescribed by law; not

contrary to nor forbidden by the law." Black's Law Dictionary 797 (5th ed.




11 The Pennsylvania Farm Bureau, as amicus curiae, urges us to hold that

this portion of section 954(a) refers to the farm itself and not the specific
agricultural activity conducted on the farm. In Gilbert, the parties briefed
this issue; however, our Supreme Court declined to decide it. See Gilbert,
131 A.3d at 15 n.17. As the parties have not fully briefed this issue and we
conclude that, even assuming arguendo that the one-year time frame refers
to the specific agricultural activity instead of the farm, Farmers operated
lawfully for at least one year prior to the filing of Appellants' complaint, we
decline to reach the issue raised by amicus. Nonetheless, we thank amicus
for bringing to our attention other "relevant matter[s] not already brought to
[our] attention by the parties[.]" Pa.R.A.P. 531 note (citation omitted).



                                        - 14 -
J   -A30019-16

1979).12     Appellants contend that, because Farmers were cited on three

occasions13 for spreading FPW, Farmers' actions were ipso facto not legal.

Thus, according to Appellants, Farmers' agricultural operations were not

lawfully in operation for at least one year prior to the filing of the instant

action.

        What Appellants fail to acknowledge is the note to the definition of the

term lawful contained within Black's.                Specifically, the note to the term

"lawful" states that:

        The principal distinction between the terms "lawful" and "legal"
        is that the former contemplates the substance of law, the latter
        the form of law. To say of an act that it is "lawful" implies that it
        is authorized, sanctioned, or at any rate not forbidden, by law.
        To say that it is "legal" implies that it is done or performed in
        accordance with the forms and usages of law, or in a technical
        manner.     In this sense "illegal" approaches the meaning of
        "invalid." For example, a contract or will, executed without the
        required formalities, might be said to be invalid or illegal, but
        could not be described as unlawful. Further, the word "lawful"
        more clearly implies an ethical content than does "legal." The
        latter goes no further than to denote compliance, with positive,
        technical, or formal rules; while the former usually imports a
        moral substance or ethical permissibility. A further distinction is
        that the word "legal" is used as the synonym of "constructive,"
        which "lawful" is not.  .   . But there are some connections in
                                        .


        which the two words are used as exact equivalents.

Black's Law Dictionary 797 (5th ed. 1979).

12 Black's is now in its tenth edition; however, we use the fifth edition
because it was the most current version at the time RTFA became law in
1982.

13 Although DEP issued Farmers a total of five NOVs, twice DEP issued nearly
identical NOVs to Nicholas and the farm on which FPW was spread. Thus, for
all practical purposes, DEP cited Farmers on three separate occasions.



                                            - 15 -
J   -A30019-16

        Our Supreme Court recognized this distinction between the terms

"lawful" and "legal" as far back as 1893.         Specifically, our Supreme Court

stated that "there is   a   clear differential distinction between the words 'legal'

and    lawful[.]' McCandless        v.   Allegheny Bessemer Steel Co.,        25 A.

579, 585 (Pa. 1893).         In McCandless, our Supreme Court held that the

means used by the plaintiff (a sheriff) to protect the defendant (a company

facing mob violence) were not legal; however, they were lawful            See id.14

As such, we hold        that under the plain language of section 954(a), an

agricultural operation must be in substantial compliance with applicable

federal, state, and local laws at least one year prior to the filing of           a


complaint in order to satisfy the first requirement of section 954(a).'5

        This interpretation of the term "lawfully" in section 954(a) is consistent

with this Court's decision in Home v. Haladay, 728 A.2d 954 (Pa. Super.

1999).    In Home, as in the case sub judice, the plaintiff argued that the



14 A simple illustration shows the distinction between "lawful" and "legal." If
an individual who possess a valid driver's license is speeding, he is not
legally operating the vehicle because he is driving over the posted speed
limit.  Nonetheless, he is lawfully operating the vehicle because he is
licensed to do so.

15   We reject Farmers' argument that section 954(b) of the RTFA requires a
causal connection between the harm that is the subject of Appellants'
complaint and the unlawful agricultural operation. Section 954(b) merely
states that section 954(a) does not apply to actions brought for violation of
federal, state, or local laws. See Gilbert v. Synagro Cent., LLC, 90 A.3d
37, 42 (Pa. Super. 2014), rev'd in part on other grounds, 131 A.3d 1 (Pa.
2015). Section 954(b) does not, as Farmers contend, broaden the scope of
section 954(a).


                                         - 16 -
J   -A30019-16

agricultural operation was not lawfully operated for at least one year prior to

the filing of the nuisance action.            This Court rejected that argument.

Although there were no NOVs issued to the agricultural operation in Home,

unlike the NOVs issued in this case, this Court also relied upon the fact that

"the record reveal[ed] that [the agricultural operation] made every effort to

comply with applicable statutes and regulations[.]"          Id. at 959.   The clear

implication of this statement is, even if NOVs had been issued by the

relevant regulatory agency, that would not ipso facto mean the agricultural

operation was unlawful. Instead, this Court implied, as we have held above,

that technical violations of      a   federal, state, or local law does not strip an

agricultural operation of protection under RTFA.

        Moreover, even if we were to hold that the plain language of section

954(a) with respect to the term "lawfully" was ambiguous, we would reach

the same conclusion.             As   noted   above, when statutory     language   is

ambiguous we may consider, inter alia, the object to be obtained and the

consequences of      a   particular interpretation when ascertaining the General

Assembly's intent. See       1   Pa.C.S.A. §§ 1921(c)(4) and 1921(c)(6).     As our

Supreme Court stated in Gilbert, the object to be obtained in RTFA is

"reduc[ing] 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." Gilbert, 131 A.3d at 17,

quoting   3 P.S. §   951 (emphasis removed); see Home, 728 A.2d at 957.            If


                                           - 17 -
J   -A30019-16

any technical violation of any federal, state, or local law reset section

954(a)'s one-year time period,            RTFA           would        not   effectively limit the

circumstances under which nuisance suits could be brought.16                               This is

because     a   collateral consequence of adopting Appellants' interpretation of

the term "lawfully" would be to encourage individuals and companies to

report minor violations to relevant authorities in an attempt to reset section

954(a)'s one-year time period.           As noted above, Appellants attempted to

employ this tactic in the case sub judice by continually contacting DEP and

complaining that Farmers were violating various state laws.

        Furthermore, when interpreting         a   statute we must presume "[t]hat the

General Assembly [did] not intend              a   result that         is   absurd, impossible of

execution or unreasonable."         1    Pa.C.S.A.            §    1922(1).     Resetting section

954(a)'s one-year time period every time                  a       minor violation occurs   is both

absurd     and    unreasonable.         Even       the        most     vigilant farmer     in   the

Commonwealth may eventually violate                 a    federal, state, or local law.          The

adoption of section 954(a) demonstrates the intent of the General Assembly

that farmers not be stripped of RTFA protection for an entire year because of

a    single violation.   We must also presume                     "[t]hat the General Assembly
intends to favor the public interest as against any private interest."                            1




16
   In their reply brief, Appellants argue that, because they lived on their land
prior to Farmers spreading FPW, the purpose of RTFA would be advanced by
permitting this action to proceed. Appellants' Reply Brief at 35. This is the
exact argument that this Court rejected in Home. Home, 728 A.2d at 957.


                                          - 18 -
J   -A30019-16

Pa.C.S.A.    §   1922(5). Again, as stated in section 951, the public interest     is in

the promotion of agricultural activities within this Commonwealth.              On the

other hand, preventing malodors from emanating from           a   farm only promotes

certain private interests.        Thus, every tool of statutory interpretation

indicates that Appellants' interpretation of the term "lawfully"         is   incorrect.

Thus, even if the term "lawfully" were ambiguous, we would hold that an

agricultural operation need only be substantially compliant with applicable

federal, state, and local laws for at least one year prior to the filing of            a


complaint in order to satisfy the first requirement of section 954(a)'s statute

of repose.

        Having determined the meaning of the term "lawfully" in section

954(a), we turn to whether Farmers were in substantial compliance with

applicable federal, state, and local laws for at least one year prior to the

filing of the instant complaint. In this case, DEP de facto determined that

Farmers substantially complied with applicable federal, state, and local laws

for at least one year prior to the filing of the instant complaint. Specifically,

on at least eight occasions between August 11, 2011 and the filing of the

instant complaint on June 14, 2013,        DEP    stated there was no problem with

Farmers' spreading of FPW.         See Farmers' Motion for Summary Judgment,

12/18/15, at Exhibit      M   (August 16, 2011 DEP report stating that Nicholas'

FPW could be spread on        the Camerer and Bowes Farms); id. (February 22,

2012 DEP report stating that Nicholas' FPW was being spread in accordance



                                         - 19 -
J   -A30019-16

with all relevant laws and regulations); id. (January 29, 2013 letter from

DEP to   State Representative Garth D. Everett stating that the spreading of

FPW on    the Camerer and Bowes Farms was lawful); id. (February 14, 2013

DEP    report stating that the technique the Farmers used to spread     FPW was

not unlawful); id. (April 27, 2013 DEP report finding no violations in the

spreading of FPW on the Bowes and Camerer Farms); id. (April 29, 2013

internal DEP email stating that there were no problems with spreading of

FPW by    Farmers); id. (May 6, 2013 DEP report stating that Farmers were

following proper procedures in spreading FPW); id. (May 8, 2013 DEP report

stating that Farmers were not spreading        FPW too close to a   stream).   As

noted above, DEP issued all of the NOVs in this case.          Nonetheless, DEP

repeatedly found that Farmers were lawfully spreading FPW.            The minor

technical infractions by Farmers were promptly resolved and DEP took no

further regulatory enforcement action, i.e.,   DEP did not fine Farmers nor did

it attempt to prohibit Farmers from spreading FPW on the Camerer and

Bowes Farms.

        Appellants also argue that Farmers failed to comply with, inter alia,

sections 287.101(b)(2) and 291.201(a) by failing to control FPW odors on

days not covered by the NOVs.         In support thereof, Appellants rely upon

their deposition testimony.   This testimony, however, was contradicted by

DEP, the agency responsible   for enforcing 25   Pa. Code §§   287.101(b)(2) and

291.201(a). As noted above,     a   subset of Appellants called DEP to complain



                                      - 20 -
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of malodors          resulting   from FPW dispersal.            DEP   enforcement officers

responded to the scene of the alleged odors and "did not detect any

malodors." Farmers' Motion for Summary Judgment, 12/18/15, at Exhibit                     M


(February 22, 2011 DEP report); see also id. (November 22, 2011 DEP

report stating "no strong odor" from spreading FPW). Appellants' arguments

relating to 25 Pa. Code          §   299.115 (storage) fail for the same reason.        DEP

inspected Bowes Farm several times after Farmers began storing FPW in the

storage tank. See e.g., Farmers' Motion for Summary Judgment, 12/18/15,

at Exhibit      M    (DEP visited Bowes Farm on April 11, 2013 and found no

violations); id. (DEP visited Bowes Farm on April 27, 2013 and found no

violations); id. (DEP visited Bowes Farm on May 4, 2013 and found no

violations).        DEP never reported a          violation of section 299.115 nor did DEP

mandate that Famers make any changes in relation thereto.                       Thus, it is

evident       that    Famers     were        in   substantial   compliance   with   sections

287.101(b)(2), 291.201(a), and 299.115 for at least one year prior to the

commencement of the instant action.                        Accordingly, we conclude that

Farmers lawfully spread FPW on the Bowes and Camerer Farms for at least

one year prior to commencement of the instant action.

        In their second issue, Appellants argue that the trial court erred in

finding that spreading FPW            is a   normal agricultural operation. RTFA defines

normal agricultural operation as:

        The  activities, practices, equipment[,] and procedures that
        farmers adopt, use[,] or engage in the production and


                                                  - 21 -
J   -A30019-16

        preparation for market of poultry, livestock[,] and their products
        and in the production, harvesting[,] and preparation for market
        or use of agricultural, agronomic, horticultural, silvicultural[,]
        and aquacultural crops and commodities and is:

        (1)      not less than ten contiguous acres in area; or

        (2)      less  than ten contiguous acres in area but has an
                 anticipated yearly gross income of at least $10,000[.00].

        The term includes new activities, practices, equipment[,] and
        procedures consistent with technological development within the
        agricultural industry. Use of equipment shall include machinery
        designed and used for agricultural operations, including, but not
        limited to, crop dryers, feed grinders, saw mills, hammer mills,
        refrigeration equipment, bins and related equipment used to
        store or prepare crops for marketing and those items of
        agricultural equipment and machinery defined by [3 P.S. § 1901
        et seq.] Custom work shall be considered a normal farming
        practice.

3 P.S. §      952.

        Farmers argue that this case is controlled by our Supreme Court's

decision in Gilbert. We disagree. In Gilbert, our Supreme Court addressed

whether the application of biosolids as fertilizer constituted              a   normal

agricultural operation. Gilbert, 131 A.3d at 19-23. DEP defines biosolids as

"[n]utrient-rich organic material produced from the stabilization of sewage
sludge and residential septage that meet specific criteria and are suitable for

land application." See goo.gl/s4ulbW (last accessed Feb. 3, 2017).               When

compared to DEP's definition of FPW, note 2 supra, it                is   evident that

biosolids and FPW are distinct and      a   finding that application of biosolids   is a

normal agricultural operation does not ipso facto mean that application of

FPW is a      normal agricultural operation.


                                         - 22 -
J   -A30019-16

        Nonetheless, we find our Supreme Court's discussion of whether the

application of biosolids is    a   normal agricultural operation instructive in our

analysis of whether spreading FPW is          a   normal agricultural operation. When

determining if application of biosolids        is a   normal agricultural operation, our

Supreme Court looked at "biosolids' history, related statutes and regulations,

case law, and executive agencies'           views[.]" Gilbert, 131 A.3d at 20.               A

careful examination of these same factors as they relate to spreading FPW

indicates that spreading FPW       is a   normal agricultural operation.

        We begin with the history of FPW in Pennsylvania.                   Both experts from

Pennsylvania who submitted reports to the trial court stated that spreading

FPW is a       normal agricultural operation within this Commonwealth.                     The

experts' reports include the fact that         FPW has been spread on              farmland in

Pennsylvania for over 15 years. Moreover, DEP has issued permits to spread

FPW to      approximately three dozen locations across the Commonwealth.                    As

implied above, however, DEP does not issue permits for the vast majority of

the operations that spread FPW. Instead, when FPW                 is   spread pursuant to     a


nutrient management plan there            is no need     to obtain      a    permit from DEP.

Thus, FPW has       a   long history of use in agricultural operations within the

Commonwealth and Pennsylvania industry experts consider spreading FPW

to be   a   normal agricultural operation.

        As to related statutes and          regulations, our General Assembly has

strongly implied that spreading           FPW on      farmland   is a       normal agricultural



                                            - 23 -
J   -A30019-16

operation.         Specifically, the definition of "normal farming operations" states

that, "It includes the management, collection, storage, transportation, use or

disposal of    .    .   .   food processing waste       .   .   .   on land where such materials will

improve the condition of the soil, the growth of crops, or in the restoration of

the land for the same purposes." 35 P.S.                            §   6018.103. In other words, our

General Assembly stated that normal farming operations include spreading

FPW as    fertilizer.          It   is   inconceivable that our General Assembly meant for

the spreading of FPW to be considered                       a   normal farming operation but not

a   normal   agricultural operation.              To the contrary, the term "normal farming

operation"         is       narrower than the term "normal agricultural operation."

Compare       3 P.S. §         952 with 35 P.S.     §   6018.103. The term "normal farming

operation" closely mirrors the pre -1998 version of RTFA's definition of

"normal agricultural operation."                  In 1998, the General Assembly amended

RTFA to broaden the                 term "normal agricultural operation."                See 1998 P.L.

441, 441-442; see also Gilbert, 131 A.3d at 20 (explaining the broadening

of the term normal agricultural operation in the 1998 amendments to RTFA).

        DEP, an executive agency involved in                             enforcement of the relevant

regulations and statutes, believes spreading FPW                              is a   normal agricultural

operation.          This is evidenced by the myriad regulations that DEP has

promulgated relating to the dispersal of FPW. Appellants, in fact, rely upon

many of these                 regulations when          arguing           that Farmers spread       FPW

unlawfully. See Appellants' Brief at 27-34 (arguing that Farmers' spreading



                                                   - 24 -
J   -A30019-16

of FPW failed to comply with 25 Pa. Code                  §   291.1 et seq.); id. at 35-44

(arguing that Farmers' spreading of FPW failed to comply with 25 Pa. Code

§   287.1 et seq.).    Moreover, DEP's Food Processing Residual Manual states

FPW    "can serve as both       a   soil conditioner and fertilizer.        [FPW has] been

recycled     through    [land       application   system]        programs    for     decades."

Appellants' Brief in Opposition to Motion for Summary Judgment, 1/19/16, at

Exhibit 12.

        As our Supreme Court has explained, "an interpretation of a statute by

those charged with its administration and                      enforcement   is    entitled to

deference, such consideration most appropriately pertains to circumstances

in which the      provision is not explicit or       is       ambiguous."    Ins. Fed'n of
Pennsylvania, Inc. v. Commonwealth of Pennsylvania Ins. Dept, 970
A.2d 1108, 1114 (Pa. 2009) (citation omitted). Therefore, we conclude that

DEP's "experience and expertise in dealing with the regulation of [FPW] use

and enforcement of the RTFA also supports             a       finding that the [spreading of

FPW] is an accepted, well -regulated farming practice."                Gilbert,    131 A.3d at

23.

        We    acknowledge that our holding today is in tension with the

Commonwealth Court's decision in Walck v. Lower Towamensing Twp.

Zoning Hearing Bd., 942 A.2d 200                  (Pa. Cmwlth. 2008).             "Although   a


decision of the    Commonwealth Court is not binding upon this Court, it can

be considered as persuasive            authority." Nw. Say. Bank v. Knapp, 149


                                            - 25 -
J   -A30019-16

A.3d 95, 98 n.3 (Pa. Super. 2016) (citation omitted). In this case, however,

we find the persuasive value of the Commonwealth Court's decision limited

for several reasons.

        In   Walck, the Commonwealth                   Court upheld        a   zoning   board's

determination that storage of           FPW was     not normal farming activity. Walck,

942 A.2d at 209.         This analysis, however, was based upon application of                3

P.S. § 501   et seq. The parties and the intervenor did not rely upon, nor did

the Commonwealth Court cite, RTFA or section 6018.103.                         See generally

Walck, 942 A.2d 200; Walck's and Lorah's Brief, 2007 WL 5516380; Lower

Towamensing Township's Brief, 2007 WL 5516382; Lower Towamensing

Township Zoning Hearing Board's Brief, 2007 WL 5516381. As noted above,

section 6018.103 explicitly defines the term "normal farming operations" to

include storage of FPW. The definition of "normal agricultural operation" in

section 952 is broader than the term "normal farming operations."                          The

failure of the parties, the intervenor, and the Commonwealth Court to read                    3

P.S. § 501    et seq. in pari materia with section 6018.101 et seq. greatly

diminishes the persuasive value we attribute to the Commonwealth Court's

decision.     Cf.   1   Pa.C.S.A.   §   1932(b) ("Statutes in pari materia shall be

construed     together,      if   possible,    as      one   statute.").       Moreover,    the

Commonwealth Court reviewed the zoning board's determination under                            a


highly deferential standard of review.                 See Walck, 942 A.2d at 205 n.5

(citation omitted). As noted above, in Gilbert our Supreme Court held that



                                              - 26 -
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we must review almost all determinations that an activity is                 a   normal

agricultural operation de novo. See Gilbert, 131 A.3d at 16-18. As such,

notwithstanding the Commonwealth Court's decision in Walck, the relevant

factors indicate spreading     FPW is a   normal agricultural operation.

        Appellants argue that an agricultural operation cannot be normal if it is

unlawful.    See Appellants' Brief at 50-52.           This argument fails for three

reasons.     First, the statutory definition of "normal agricultural operation,"

quoted above, does not incorporate therein         a   requirement that an activity be

lawful to be considered    a   normal agricultural operation.       More importantly,

however, the General Assembly "is presumed not to intend any statutory

language to exist as mere surplusage and, accordingly, courts must construe

a    statute so as to give effect to every word." Commonwealth v. Walls,

144 A.3d 926, 934 (Pa. Super. 2016), appeal denied, 470 EAL 2016 (Pa.

Feb.    23, 2017) (citation omitted).         In this case, reading      a   lawfulness

requirement into the third requirement of section 954(a), i.e., the normal

agricultural operation requirement, would make the first requirement, i.e.,

the lawfulness requirement, surplusage.                As such, we cannot construe

section 954(a) in the manner proposed by Appellants while giving effect to

every word. Finally, as noted above, we conclude that Farmers' spreading of

FPW was     lawful, even if intermittently out of compliance with federal, state,

or local laws.




                                          - 27 -
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         Appellants also argue that, even if spreading FPW is                         a   normal

agricultural operation, storing it in        a   tank   is   not.    This argument is without

merit.     As noted above, our General Assembly specifically considered the

storage of FPW when passing section 6018.103. That section provides that

storage of FPW constitutes           a   normal farming operation.           For the reasons

stated above, we ascertain no reason why storage of FPW should not be

considered     a   normal agricultural operation when the definition of "normal

agricultural operation"        is   broader than the definition of "normal farming

operation."

         We therefore hold that spreading FPW on farmland to provide nutrients

for the soil   is a   normal agricultural operation. Moreover, storage of FPW is

also   a   normal agricultural operation.          As Farmers spread FPW to provide

nutrients for the soil, their activities constituted                      normal agricultural

operations. Accordingly, the third requirement of RTFA's statute of repose                    is

satisfied.

         In their final issue, Appellants argue that Farmers failed to satisfy the

second requirement of section 954(a) because construction of the storage

tank constituted        a    substantial change in the physical facilities of the

agricultural operation. Farmers contend that this argument                    is   without merit

for three reasons.          First, Farmers argue that even assuming arguendo that

construction of the storage tank constituted                   a    substantial change in the

physical facilities of the agricultural operation, the statute of repose still bars



                                             - 28 -
J   -A30019-16

the instant action because the storage tank was constructed in April 2012         -
more than one year prior to the filing of the instant complaint.          Second,

Farmers argue that even assuming arguendo that construction of the

storage tank constituted   a   substantial change in the physical facilities of the

agricultural operation less than one year prior to the commencement of the

action, their spreading of FPW was covered by       a   nutrient management plan.

Finally, Farmers argue that construction of the storage tank was not              a


substantial change in the physical facilities of the agricultural operation.

        We begin with Farmers' argument that the storage tank became

operational in April 2012      -   more than one year prior to the filing of the

instant complaint.   In their second amended complaint, Appellants averred

that:

        In approximately April of 2012, the [2,400,000] gallon storage
        tank was constructed on property owned and/or controlled by
        [Bowes Farm] and/or Camerer Farm[].

        Since the storage tank was erected, [JAB, Nicholas, and Bowes
        Farm] have transported and dumped, and/or participated in the
        transportation and dumping of the residual waste into the
        [2,400,000] gallon tank in such a manner that frequently
        releases offensive odors that have impaired and continue to
        impair [Appellants'] use and enjoyment of property and quality
        of life.

Appellants' Second Amended Complaint, 11/15/13, at 10 (paragraph number

omitted).    Appellants consistently repeated some form of this averment

throughout their second amended complaint.                See id. at 21     ("Upon

reasonable belief, from approximately April of 2012 to the present, on      a   near



                                        - 29 -
J   -A30019-16

daily basis, [JAB, Bowes Farm, and/or Nicholas] have transported and

dumped, caused to be transported and dumped, and/or directed the

transportation and dumping of large quantities of residual waste from

[Nicholas] into the [2,400,000] gallon storage tank[.]"); id. at 23 (same

allegation as to Nicholas, Bowes Farm, and Camerer Farm); id. at 24 ("The

vast amount of waste stored in the tank and frequent offensive and noxious

odors and other emissions from the aforementioned waste storage activities

of [Nicholas, Bowes Farm, and Camerer Farm] occurring from approximately

April of 2012 to the present"); id. at 30; id. at 31; id. at 37; id. at 39; id.

at 39-40; id. at 45; id. at 46-47; id. at 52-53; id. at 54; id. at 55; id. at

60-61; id. at 62; id. at 67-68; id. at 69; id. at 70; id. at 75-76; id. at 77;

id. at 82-83; id. at 84; id. at 90-91; id. at 92; id. at 97-98; id. at 99; id. at

100; id. at 105-106; id. at 107; id. at 112-113; id. at 114-115; id. at 115;

id. at 121; id. at 122; id. at 128; id. at 130; id. at 131; id. at 136; id. at

137; id. at 143; id. at 145; id. at 145-146; id. at 151; id. at 152; id. at

158; id. at 160; id. at 160-161; id. at 166; id. at 167; id. at 173; id. at

175; id. at 175-176; id. at 181; id. at 182; id. at 188; id. at 190; id. at

191; id. at 196; id. at 197-198; id. at 203-204; id. at 205; id. at 206; id.

at 212; id. at 213; id. at 219; id. at 221; id. at 221-222; id. at 227; id. at

228; id. at 234; id. at 236; id. at 236-237; id. at 242; id. at 243; id. at

249; id. at 251; id. at 251-252; id. at 257; id. at 258; id. at 264; id. at




                                     - 30 -
J   -A30019-16

266; id. at 266-267; id. at 272; id. at 273; id. at 279; id. at 281; id. at

281-282; id. at 287; id. at 288.

        Farmers, in their motion for summary judgment, argued that the

storage tank became operational in April 2012.            Farmers' Motion for

Summary Judgment, 12/18/15, at 13. In support thereof, Fanners cited to

paragraph 46 of Appellants' second amended complaint. Farmers made this

same argument in their brief in support of their summary judgment motion.

Farmers' Brief in Support of Motion for Summary Judgment, 12/18/15, at

17.

        In their brief in opposition to Farmers' summary judgment motion,

Appellants asserted for the first time that the tank was not operational until

at least July 13, 2012, less than one year prior to the filing of the instant

complaint.       See Appellants' Brief in Opposition to Motion for Summary

Judgment, 1/19/16, at 20. In support of this argument, Appellants cited to

the deposition testimony of Brett Bowes, the proprietor of Bowes Farm. See

id., citing id. at Exhibit 14.
        Although not phrased as such before either the trial court or this

Court, Farmers essentially argue that Appellants were barred from offering

Brett Bowes' deposition testimony to disprove the averments made in their

second amended complaint which serve as judicial admissions. In 1853, our

Supreme Court first applied this principle under Pennsylvania common law.

Specifically, our Supreme Court stated that, "When   a   man alleges   a   fact in   a




                                     - 31 -
J   -A30019-16

court of justice, for his advantage, he shall not be allowed to contradict it

afterwards. It   is   against good morals to permit such double dealing in the

administration of justice." Willis v. Kane,                2   Grant 60,63 (Pa. 1853).

          Our review of Willis and         its     progeny'' elucidates the following

requirements for an averment to be                     a       judicial admission.   First, the

averment must be made in              a   verified pleading, stipulation, or similar

document. Second, the averment must be made in the same case in which

the opposing party seeks to rely upon it. In other words, an averment made

in a pleading in an      unrelated cause   is    not   a   judicial admission that precludes

a    party from contradicting that averrnent.18 Third, the averment must relate

to    a   fact and not    a   legal conclusion.            Fourth, the averment must be

advantageous to the party who made it. Finally, the fact must be plausible.




17 Specifically, we reviewed Linefsky v. Redevelopment Auth. of the City
of Philadelphia, 698 A.2d 128,133 (Pa. Cmwlth. 1997) (citations omitted);
Gross v. City of Pittsburgh, 686 A.2d 864, 867 (Pa. Cmwlth. 1996);
Riddle v. Pennsylvania Dep't of Transp., 583 A.2d 865, 867 (Pa.
Cmwlth. 1990) (citation omitted); Nasim v. Shamrock Welding Supply
Co., 563 A.2d 1266, 1267 (Pa. Super. 1989) (citation omitted); Rizzo v.
Haines, 555 A.2d 58, 69 (Pa. 1989) (citations omitted); Jewelcor
Jewelers & Distributors, Inc. v. Corr, 542 A.2d 72,75 (Pa. Super. 1988);
Silco Vending Co. v. Quinn, 461 A.2d 1324, 1326-1327 (Pa. Super.
1983); Dale Mfg. Co. v. Bressi, 421 A.2d 653, 655 (Pa. 1980) (citation
omitted); and Tops Apparel Mfg. Co. v. Rothman, 244 A.2d 436,438 (Pa.
1968) (citation omitted).

18The party may still be barred from contradicting the averment because of
some other judicial principle, e.g., judicial estoppel. We focus our attention,
however, on the concept of judicial admissions.


                                           - 32 -
J   -A30019-16

        In this    case,   the   first three requirements are easily satisfied.

Appellants' second amended complaint was verified by Appellants.                      The

averments were made in the instant action, not another unrelated action.

Third, whether the storage tank became operational in April 2012                     is a

factual, not legal, question.      Thus, we focus our attention on the final two

requirements to determine whether the averments made in Appellants'

second amended complaint were judicial admissions which bind Appellants.

        As to the fourth requirement,    that the averments       in   Appellants' second

amended complaint be advantageous to them, we find DeMuth v. Miller,

652 A.2d 891 (Pa. Super. 1995), appeal denied, 665 A.2d 469 (Pa. 1995),

most analogous to the case sub judice. In DeMuth, the plaintiff averred in

his verified complaint that,     "[t]he [e]mployment [a]greement between the
parties was not renewed or extended at its expiration on 31 May 1990."                Id.
at 894 (citation omitted;         emphasis removed).            At trial, the plaintiff

attempted to prove that the parties had an employment contract past May

31, 1990.        The defendant objected, arguing that the plaintiff was barred

from arguing that an employment contract existed between the parties

because he judicially admitted in his verified complaint that no such contract

existed.    This Court rejected that argument and held that the verified

averment    in   the plaintiff's complaint was not   a   judicial admission. See id. at

894-895. In reaching that conclusion, this Court held that it was improper

to look at the averment made in the plaintiff's complaint in                  a   vacuum.



                                         - 33 -
J   -A30019-16

Instead, this Court held that the averment must be "viewed            in   the context of

the remaining allegations and damages sought to be recouped."                Id. at 894.
Viewing the pleading as     a   whole, this Court stated that:

        [W]e fail to discern how it would be beneficial to the plaintiff to
        treat as an admission the expiration of the contract containing
        verbiage entitling him to dismiss the defendant for cause and
        seeking compensation for violation of the non -competition
        clause. Accordingly, given the non -beneficial aspects flowing
        from labelling [p]aragraph 5 as an admission (so as to preclude
        the plaintiff from offering evidence of the defendant's conduct as
        violative of a contract), we hold that [p]aragraph 5 does not rise
        to the level of a judicial admission.

Id. at 895 (citation omitted).
        The factual averment that the storage tank became operational in April

2012 was not advantageous for Appellants.                 Although the emission of

malodors from the storage tank was advantageous for Appellants, the

averment that the storage tank became operational             in   April 2012 was not

advantageous for Appellants.         April 2012 was more than one year prior to

the filing of the instant action and therefore that averment, if proven, would

have meant that Appellants' claims were previously extinguished.                      This is

similar to DeMuth where, if there were no employment contract between

the parties, the plaintiff would not have been able to recover for            a   violation

of the non -competition clause included therein. Thus, Appellants' averment

that the storage tank became operational           in   April 2012 was not        a   judicial

admission because it failed to satisfy the fourth prong of the test for an

averment to be    a   judicial admission.



                                          - 34 -
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        The only competent evidence presented to the trial court proved that

the storage tank did not become operational until at least July 13, 2012, i.e.,

less than one year prior to the filing of the instant complaint.          Bowes Farm

received   a   permit to construct the storage tank    in   April 2012.    Appellants'

Brief in Opposition to Motion for Summary Judgment, 1/19/16, at Exhibit 18.

Brett Bowes testified that the storage tank, constructed on his farm, took

three to four months to build after receiving the permit in April 2012.           See

id. at Exhibit 14.           Thus, the only reasonable inference from Bowes'

testimony was that the storage tank became operational, at the very

earliest, in July 2012, i.e., less than one year prior to commencement of the

instant action. Farmers did not cite any evidence which contradicted Bowes'

deposition testimony either in their brief in support of their summary

judgment motion or      in   their brief before this Court. Thus, we conclude that

the storage tank was not operational for at least one year prior to the filing

of Appellants' complaint. Accordingly, Farmers failed to satisfy this option of

the second requirement of section 954(a).

        Next, we address Farmers' argument that the storage of FPW is

covered by     a   nutrient management plan.      In order to satisfy the second

requirement of section 954(a) via the nutrient management plan option, the

expanded or altered physical facilities must be addressed in               a   nutrient

management plan approved prior to the expanded or altered physical

facilities becoming operational.         In other words, it      is   insufficient, for



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purposes of this option of the second requirement, for the original physical

facilities to be included in     a   nutrient management plan approved prior to the

expanded or altered physical facilities becoming operational.

        After   a   careful review of the certified record and section 954(a), we

conclude that storage of FPW in the 2,400,000 gallon tank on Bowes Farm

was not addressed in         a   nutrient management plan adopted prior to the

storage tank becoming operational.             Farmers attached the relevant nutrient

management plans and modifications thereto to their motion for summary

judgment.           See Farmers' Motion for Summary Judgment, 12/18/15, at

Exhibit AA.          The only storage tanks mentioned in any of the nutrient

management plans are the two storage tanks located on Nicholas' property.

See id. (Nicholas "produces 40,000 gallons of [FPW per day] that             is   stored

in   two round concrete storages that measure 16 [feet] by 86 [feet] and 12

[feet by] 50 [feet] holding          a   total of 1,045,000 gallons."; Listing storage

capacity of one tank as 175,000 gallons and capacity of other tank as

870,000 gallons.). There         is no   mention of the 2,400,000 gallon storage tank

located on Bowes Farm.               Thus, although the nutrient management plan

covered the storage of FPW on Nicholas' property, and the spreading of FPW

on the Bowes and Camerer Farms, it did not cover storage of FPW in the

2,400,000 gallon storage tank on Bowes Farm.               As such, Farmers failed to

satisfy this option for the second requirement of section 954(a).




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         Finally, Farmers argue the storage tank was not              a   substantial change

in   the agricultural operation.        Preliminarily, we must address two issues of

statutory interpretation as it relates to this option for satisfying the second

requirement of section 954(a).               As noted above, in order to satisfy the

second requirement of section 954(a), (a) the conditions or circumstances

that are the basis for the complaint must have existed substantially

unchanged since the established date of operation or (b) if 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.                             See     3   P.S.

§    954(a).   Farmers appear to argue that the condition or circumstance that

is   the basis for the complaint        is   the spreading of FPW on the Bowes and

Camerer Farms. Farmers also aver that the spreading of FPW on the Bowes

and Camerer Farms has existed substantially unchanged since it began in

2011. Thus, according to Farmers, it             is   immaterial if there was   a   substantial

change in the physical facility of the agricultural operation.

        This    argument      fails.         Specifically,    under   Farmers'        proposed

interpretation, an agricultural operation, such as storage, could substantially

expand its physical facilities and still be protected by RTFA's statute of

repose as long as the underlying operation, e.g., spreading FPW, was not

substantially changed.        This would render the language in section 954(a)



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relating to substantially expanded or altered physical facilities surplusage.

As    noted above, when interpreting                  a    statute we presume the General

Assembly did not intend superfluous language. See Walls, 144 A.3d at 934

(citation omitted). The clear implication of the General Assembly's inclusion

of the         language     regarding   substantially expanded or altered                    physical

facilities     is   that substantially altered or expanded physical facilities ipso facto

are   a   substantial change in the conditions or circumstances complained of so

long as those substantially changed or altered physical facilities are related

to the harm that is the subject of                a       complaint.       In this case, the harm

complained of encompasses malodors resulting from storage of FPW in the

storage tank. Therefore, if the storage tank was                       a   substantial expansion or

alteration of the physical facilities, Appellants' action                   is   not barred by RTFA's

statute of repose.

          No    appellate court in this Commonwealth has ever decided whether

the expansion or alteration of              a   facility was substantial under                RTFA.19

Black's Law Dictionary states that "substantial" is                    a   synonym for "material."

See Black's Law Dictionary 1280 (5th ed. 1979). Black's defines "material"

as   "[i]mportant." Id. at 880.          We believe that this definition is appropriate


19  In Home, this Court acknowledged a question about whether the
construction of a decomposition house was a substantial expansion or
alteration of the physical facilities of the agricultural operation; however, this
Court declined to decide the issue because even assuming arguendo that it
was a substantial expansion or alteration, the decomposition house had been
operational for at least one year prior to the filing of the complaint. Home,
728 A.2d at 957 n.1.


                                                - 38 -
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for section 954(a).       Specifically, this requirement under section 954(a) is

meant to ensure that an agricultural operation not go from             a    tiny operation

with little impact on neighbors to      a   massive operation greatly effecting the

lives of neighbors without providing those neighbors with an opportunity to

file   a   private nuisance action. In other words, RTFA    is   meant to protect the

status quo of an agricultural operation along with minor expansion or

alteration consistent with technological advancements.            It   is   not meant to

protect agricultural operations that undergo major changes which impact the

lives of neighbors.       Therefore, if the physical facilities of an agricultural

operation undergo an important expansion or alteration, and that important

expansion or alteration impacts the underlying condition or circumstance

complained of, RTFA does not bar the action so long as the complaint is filed

within one year of the date the substantially altered or expanded physical

facility becomes operational.

           Turning to the storage tank at issue in this case, the evidence

presented       indicates that the construction of the storage tank was                  a


substantial change in the physical facilities of the agricultural operation. As

noted above, the evidence before the trial court was that the storage tank is

capable of holding 2,400,000 gallons of FPW.            To give some idea of how

much that is, it would take      a   box approximately 68.5 feet long, 68.5 feet

wide, and 68.5 feet high in order to hold 2,400,000 gallons of FPW.




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Visualized another way, 2,400,000 gallons would cover                    a   football field

(including endzones) with over five and one-half feet of FPW.

        The size of the storage tank is not the only indicator of how substantial

of an expansion the storage tank was to the physical facilities of the

agricultural operation. Prior to April 2012, Bowes Farm lacked any storage

facility for   FPW.   Thus, this was not   a   location that stored hundreds or even

tens of millions of gallons of FPW that added              a   relatively small 2,400,000

gallon storage tank. Instead, this was         a   situation in which Bowes Farm went

from storing no FPW to an FPW storage capacity of 2,400,000 gallons.

        As noted above, it took three to four months for construction of the

storage tank. In other words, this was not           a   small construction job in which

the tank was built in    a   few hours, days, or even weeks. Farmers attached to

their summary judgment motion an exhibit in which Nicholas' proprietor

stated that the storage tank cost $300,000.00 to construct.                  See Farmers'

Motion for Summary Judgment, 12/18/15, at Exhibit B. All of these factors

lead us to hold that the construction of the storage tank on the Bowes Farm

was    a   substantial expansion to the physical facilities of the agricultural

operation.      As noted above, the expanded physical             facility did not become

operational until at least July 2012, i.e., less than one year prior to the filing

of Appellants' complaint.        Therefore, Farmers failed to satisfy the second

requirement of section 954(a) as it relates to the storage of                 FPW in   the

2,400,000 gallon tank located on Bowes Farm.



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        Our conclusion that the construction of the storage tank on Bowes

Farm was        a   substantial change in the physical facilities of the agricultural

operation, and thus        a   substantial change in the conditions or circumstances

complained of in Appellants' second amended complaint, however, does not

mean that Appellants may continue prosecuting their complaint as it relates

to the spreading of FPW.            To the contrary, the storage of FPW is separate

and distinct from the spreading of FPW.                This is evidenced by the fact that

FPW was spread on              the Bowes and Camerer Farms for approximately 18

months without any storage located on Bowes Farm and/or Camerer Farm.

Moreover, section 6018.103, states that normal farming operations include

the use or storage of FPW. 35 P.S.            §   6018.103. The use of the disjunctive

"or"   in the   definition clearly indicates that storage of FPW, without regard to

use, is    a    normal agricultural operation.          Similarly, use of FPW, without

regard to storage, is also          a   normal agricultural operation.       In this case,

Appellants separated the claims regarding storage of FPW from the claims

regarding the spreading of FPW.

        This separation of the claims relating to spreading and storage of FPW

is   consistent with the plain language of section 954(a). It            is also   consistent

with other tools of statutory interpretation. Finally, it          is   consistent with the

overall purpose of RTFA. 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



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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.

        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.2°

Instead, we hold that an agricultural operation                is   lawful if it substantially

complies with relevant federal, state, and local laws.                 In this case, Farmers

lawfully spread FPW for at least one year prior to the filing of Appellants'

complaint.        We also hold that spreading            FPW        on farmland to provide

nutrients for the soil, and storage of             FPW       in tanks,    constitute normal

agricultural operations.       Finally, we conclude that construction of the

2,400,000 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


20It is possible that a serious violation or continued noncompliance may lead
to a finding that the operation is unlawful, but that is not the situation in this
case.


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second requirement of section 954(a) with respect to the storage of FPW in

the 2,400,000 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 2,400,000 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.21

        Judgment affirmed in part and vacated in part.     Case remanded.

Jurisdiction relinquished.

Judgment Entered.




J seph D. Seletyn,
Prothonotary

Date: 4/4/2017




21
   In their summary judgment motion, Farmers argued that the utility of
their activities outweigh any harm to Appellants. No party briefed or argued
this issue before this Court. Moreover, the trial court did not address the
issue in its opinion granting summary judgment. Although we could reach
the issue because we may affirm the trial court's decision on any basis,
Commonwealth v. Rosser, 135 A.3d 1077, 1087 (Pa. Super. 2016) (en
banc) (citation omitted), we exercise our discretion and remand this matter
so that the trial court may rule on the issue in the first instance.



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