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Home My WebLink About94-4767 Civil Law JACK T. POLK, : IN THE COURT OF COMMON PLEAS OF BEVERLY J. POLK, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - EQUITY : MR. and MRS. JOHN B. SHIRK, : RUFUS H. SHIRK, SELECT VEAL : FEEDS, INC., : Defendants : NO. 94-4767 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of March, 1995, upon careful consideration of Defendants' Motion For Judgment on the Pleadings, along with the briefs and oral arguments presented on the matter, Defendants' motion is DENIED. BY THE COURT, JJ Wesley Jr. ~f. Samuel W. Milkes, Esq. 52 East H~gh Street Carlisle, PA 17013 Attorney for Plaintiffs Sally J. Winder, Esq. 701 East King Street Shippensburg, PA 17257 Attorney for Defendants : rc JACK T. POLK, : IN THE COURT OF COMMON PLEAS OF BEVERLY J. POLK, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - EQUITY : MR. and MRS. JOHN B. SHIRK, : RUFUS H. SHIRK, SELECT VEAL : FEEDS, INC., : Defendants : NO. 94-4767 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This action in equity for injunctive relief arises out of an alleged nuisance in the form of noise and odor emanating from a veal calf barn operated on land next to property of Plaintiffs. For disposition at this time is a motion for judgment on the pleadings filed by Defendants. The motion is based on a statute of limitations contained in a certain Pennsylvania law relating to agricultural operations. For the reasons stated in this Opinion, the motion will be denied. Facts The Plaintiffs are Jack T. Polk and Beverly J. Polk, husband and wife, residing at 409 Springfield Road, Shippensburg, Cumberland County, Pennsylvania. They own a residence located at that address and have lived there for the last twelve years. Defendants John B. Shirk and Rufus H. Shirk, husband and wife,, reside at 385 Springfield Road, ShippensbUrg, Cumberland County, Pennsylvania; they have lived at that address for at least the past three years. Defendant Select Veal Feeds, Inc., is a for- NO. 94-4767 CIVIL TERM profit corporation with a corporate address of 176 Orchard Lane, Harleysville, Pennsylvania. The properties of Plaintiffs and of Defendants-Shirk are immediately adjacent to one another. The approximate acreage of Plaintiffs' property is 4.5 acres and the approximate acreage of the Shirk property is 175 acres. Defendants-Shirk raise veal calves on more than ten contiguous acres of their property; the role of the corporate defendant with respect to this operation is in dispute. When Plaintiffs purchased their property and built a home upon it, there was no calf barn located on the property now owed by Defendants-Shirk. Within two years preceding the filing of the complaint, Defendants-Shirk constructed, or had constructed, a large calf barn on their property. Defendants' calf barn contains various tiers of fans which serve the purpose of venting the barn. Plaintiffs allege that serious noise and odor problems are associated with the barn, depriving them of the quiet enjoyment of their property. Plaintiffs further allege that the barn was not constructed in accordance with a permit application filed with the township wherein the properties are located. In a reply to new matter Plaintiffs admit an averment of Defendants that the "veal calf operation of Defendants[-Shirk] had lawfully been in operation for more than one (1) year prior to the commencement of the instant 2 NO. 94-4767 CIVIL TERM civil law suit .... " However, Plaintiffs deny "that the fashion in which Defendants are undertaking this activity is considered normal." Statement of Law It is well settled in Pennsylvania that a motion for judgment on the pleadings should be granted only in cases where there are no issues of material fact and which are so free from doubt that a trial would clearly be a fruitless exercise. 3 Goodrich Amram 2d, §1034(b):2 (1991). It has also been said that where the rules of law are not clear, the court should be "especially wary" of granting a motion for judgment on the pleadings. Id.; Jeffries v. Hoffman, 417 Pa. 1, 5 n.1, 207 A.2d 774, 776 n.1 (1965). "A motion for judgment on the pleadings is in the nature of a demurrer in which all of the opposing parties' well-pleaded allegations are viewed as true, but only those facts specifically admitted by the objecting party may be considered against him." Ithier v. City of Philadelphia, 137 Pa. Commw. 103, 105, 585 A.2d 564, 565 (1991). "In ruling on a motion for judgment on the pleadings, [the court] must limit [its] review of the facts to those appearing in the pleadings themselves, keeping in mind that the moving party admits the truth of all allegations of his adversary and the untruth of his own allegations that have been denied. Kline v. Pennsylvania Mines Corp., 120 Pa. Commw. 7, 9, 547 A.2d 1276, 1277 (1988). 3 NO. 94-4767 CIVIL TERM Protection of aqricultural operations from nuisance suits and ordinances. With regard to the legislation that Defendants assert time-bars the present action by Defendants, the relevant provisions are as follows: 951. Legislative 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 .... It is the purpose of this act to reduce the loss to the Commonwealth of its agricultural resources by limiting the circumstances under which agricultural operations may be the subject matter of nuisance suits and ordinances. 952 Definitions "Normal agricultural operation." The customary and generally accepted activities, practices and procedures that farmers adopt, use or engage in year after year in the production AND preparation for market or [sic] poultry, livestock and their products .... and is (1) not less than ten contiguous acres in area .... 954 Limitation on public nuisances (a) 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 4 NO. 94-4767 CIVIL TERM altered and the expanded or substantially altered facility has been in operation for one year or more prior to the date of bringing such action: Nothing herein shall in any way restrict or impede the authority of this state from protecting the public health, safety and welfare or the authority of a municipality to enforce state law. (b) The provisions of this section shall not affect or defeat the right of any person · .. to recover damages for any injuries or damages sustained by them on account of any agricultural operation or any portion of an agricultural operation which is conducted in violation of any Federal, State or local statute or governmental regulation which applies to that agricultural operation or portion thereof. ~956 Saving alause (b) The provisions of this act shall not affect or defeat the intent of any federal, state or local statute or governmental regulation except nuisance ordinances as they apply to any normal agricultural operation.~ Application of Law to Facts In the present case, a dispute exists between the parties as to whether the operation complained of by Plaintiffs is conducted in a manner which would qualify it as a "normal" agricultural operation. This represents at least one issue of material fact affecting application of the statute of limitations relied upon by Defendants. It precludes a determination at this time that the case is so free from doubt that trial would be an unnecessary ~ Act of June 10, 1982, P.L. 454, §2, 3 P.S. §951 et seq. (1994 Supp.). 5 NO. 94-4767 CIVIL TERM exercise. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~ day of March, 1995, upon careful consideration of Defendants' Motion For Judgment on the Pleadings, along with the briefs and oral arguments presented on the matter, Defendants' motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Samuel W. Milkes, Esq. 52 East High Street Carlisle, PA 17013 Attorney for Plaintiffs Sally J. Winder, Esq. 701 East King Street Shippensburg, PA 17257 Attorney for Defendants :rc