HomeMy WebLinkAbout93-0037 CivilTOWNSHIP OF SILVER SPRING, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - EQUITY
:
WELLINGTON FARMS, INC., :
Defendant : NO. 37 EQUITY 1993
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., September 29, 1995.
This case arises out of Defendant's operation of a
slaughterhouse in violation of Plaintiff's zoning ordinance.
Presently on appeal by Defendant to the Commonwealth Court is an
order of this court dated July 27, 1995. The order appealed from
was issued in response to Defendant's motion to modify or clarify
a preliminary injunction issued in 1993.
The 1993 preliminary injunction was previously appeale~ by
Defendant, and affirmed.~ The preliminary injunction has, hOwever,
been the subject of serious and repeated violations by Defendant.2
The order presently being.appealed by Defendant. reads as follows:
AND NOW, this 27th day of July, 1995,
after careful consideration of Defendant's
Motion To Modify and/or Clarify, and following
a hearing on July 26, 1995., the Court's review
of the preliminary injunction issued on
September 27, 1993, indicates that the term
"raised upon the premises" contained therein
was intended to be synonymous with "grown from
chicks or poults upon the premises," and in
the context of the hearing at that time would
" "have been So Uh;der~tO°d' bY the' PartieS...'. .....
Similarly, the balance of the decree, which
was affirmed on appeal by the Commonwealth
~ Township of Silver Spring v. Wellington Farms, Inc., No.
2501 C.D. 1993 (July 21, 1994) (Smith, J.).
~ See e.g., Order of Court, May 17, 1995; Order of Court,
April 21, 1995.
NO~.37 EQUITY 1993
Court on July 21, 1994, appears to the Court
to be sufficiently clear in its language as to
require no further elaboration.
This Opinion is written in support of the court's order,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
PROCEDURAL HISTORY; STATEMENT OF FACTS
Procedural history. The present action in equity for
injunctive and other relief was commenced by the municipal
Plaintiff on September 3, 1993. A preliminary injunction enjoining
Defendant from certain COnduCt was issued on September 27, 1993.
It read as follows:
AND NOW, this 27th day of September,
1993, upon consideration of Plaintiff's
Petition for Preliminary Injunction and
following a hearing, and for the reasons
stated in the accompanying Opinion, the
Petition is GRANTED and the slaughter of
imported poultry not raised upon the premises
at 70 Konhaus Road, Mechanicsburg,
Pennsylvania, is .PRELIMINARILY ENJOINED. No
bond shall be required of Plaintiff.
THIS DECREE shall be reviewable upon
motion of either party in the event of a
favorable ruling on .Defendant,s Petition ~To
Stay Action of the Zoning Hearing Board of
Silver Spring Township, at No. 1996 Civil 1993
(Cumberland Co.),[3] and in any event shall be
superseded by any Final Decree entered upon
Plaintiff's underlying complaint.
3 This action was brought by Defendant as the result of a
cease and desist order issued by the municipal Plaintiff. On March
31, 1995, the Commonwealth Court affirmed a decision of this court
in favor of the municipality in that action. Wellington Farms,
Inc. v. Zoning Hearing Bd. of Silver Spring Township, No. 890 C.D.
1994 (March 31, 1995) (Doyle, J.).
2
NO. 37 EQUITY' 1993 ' · ' ..................... - ·
Defendant appealed the preliminary injunction decree. On July
21, 1994, the Commonwealth Court affirmed the decree. Township of
Silver Spring v. Wellington Farms, Inc., No. 2501 C.D. 1993 (July
21, 1994) (Smith, J.).
On April 21, 1995, Defendant was adjudicated in civil contempt
of court. This adjudication was the result of at least 245,000
violations of the decree between January and May of 1994 and
November of 1994 and April of 1995.4
On May 1, 1995, Plaintiff filed a second petition for
adjudication of civil contempt, based on alleged violations by
Defendant occurring after the first adjudication of contempt.5 A
hearing on this petition was scheduled for May 8, 1995.6
On May 4, 1995, Defendant filed for bankruptcy under Chapter
11 of the Bankruptcy Code (reorganization),~ and on the day
scheduled for this court's hearing Defendant obtained an ex parte
order from the bankruptcy court prohibiting Plaintiff "from
enjoining [Defendant] from slaughtering poultry" and "from levying
4 Order of Court, April 21, 1995.
5 Plaintiff's Petition for Adjudication of Civil Contempt and
~ ~imPosition- of SanctiOns/ filed MaY I, 1995. ~ ~
6 Order of Court, May 2, 1995.
? Hearing on Plaintiff's Petition for Adjudication of Civil
Contempt and Imposition of Sanctions, and Plaintiff's Amended and
Supplementary Petition for Adjudication of Civil Contempt and
Imposition of Sanctions, May 8, 1995, Defendant's Exhibit 1.
3
NO, 37 'EQUITY 1993 ' .........
fines or attempting to collect on fines already levied.''8 As a
result of the bankruptcy court's order, this court continued its
hearing.9
The bankruptcy court vacated its order on May 12, 1995.~° On
May 17, 1995, this court adjudicated Defendant in contempt for a
second time, baSed on a series of violations of the preliminary
injunction occurring after the prior adjudication of contempt.~
On May 22, 1995, Defendant filed a motion to modify the
preliminary injunction, requesting that it be suspended for three
weeks so that 20,000 more imported birds could be slaughtered by
Defendant.~2 Plaintiff opposed this proposal, and after a hearing
the court denied the motion.~3
On May 26, 1995, Defendant filed a "Motion To Modify and/or
Clarify" the preliminary injunction.TM The motion proposed a
Id., Defendant's Exhibit 3.
Order of Court, May 8, 1995.
Hearing on Plaintiff's Petition for AdjudiCatiOn of Civil
Contempt and Imposition of Sanctions, and Plaintiff's Amended and
Supplementary Petition for Adjudication of Civil Contempt and
Imposition of Sanctions, May 17, 1995, Plaintiff's Exhibit 1.
Order of Court, May 17, 1995.
Defendant's Motion To Modify Injunction, filed May 22,
1995.
Order of Court, May 22, 1995.
Defendant's Motion To Modify and/or Clarify, filed May 26,
1995.
NO. 37 EQUITY 1993
construction of the 1993 preliminary injunction which would include
within the scope of the term "poultry ... raised upon the premises"
any bird whose final two weeks of life were spent upon the
premises.~s The motion also suggested a construction of the
preliminary injunction, allegedly mandated by the Protection of
Agricultural Operations from Nuisance Suits and Ordinances Act,
which would allow slaughtering of imported birds if at least an
equal number of birds raised on the premises were also
slaUghtered~~' A·hearing on this motio~ wa's· held °n·July 26, 1995.
On July 27, 1995, the court issued an order on Defendant's
motion. The order stated that the term in question was intended to
mean birds "grown from chicks or poults upon the premises," that it
could not have been otherwise understood by the parties in view of
the presentations at the 1993 hearing,~? and that the language of
the preliminary injunction required ~no.further treatment.~8
From this order, Defendant filed the present appeal on August
24, 1995. In a statement of matters complained of on appeal,
Defendant specified ·the f°ilowing tw0·bases ·for the appeal:
~5 Defendant's Motion To Modify and/or Clarify, filed May 26,
1995, prayer for relief.·
~6 Id. The statute cited was the Act of June 10, 1982, P.L.
454, S3, as amended, 3 P.S. S953.
~? Defendant has changed counsel several times in the course
of these proceedings.
~" Order of Court, July 27, 1995.
5
NO. 37 EQUITY 1993
...... [T]he Trial Court erred in its refusal .to
modify its previous Orders [sic] to state that
the appellant's practice of slaughtering
chickens transported to Appellant's farm at
least five weeks after hatching and at least
three weeks before slaughter is in compliance
with Appellee's Ordinance Section 808.1.
[T]he Trial Court erred in its refusal to
modify its previous Orders [sic] to state that
the provisions of 3 P.S. Section 953
supersedes the Appellee's Ordinance Section
808.1.~9
Statement' of Facts. On or about February 14, 1992, the
municipal Plaintiff in effect issued an occupancy permit to
Defendant, Wellington Farms, Inc., for an agricultural use of the
"Konhaus Farm," at'70' KonhaUs ROad,' Mechanicsburg, SilVer spring
Township, Cumberland County, Pennsylvania.~° The agricultural use
as proposed by Defendant was the "Raising, Slaughtering, Dressing
and Marketing of Poultry.''2~ However, the permission for occupancy
~9 Appellant's Statement of Matters Complained of Pursuant to
Pa. R.A.P. 1925(B).
20 Hearing on plaintiff's Petition for PreliminaryInjunctiOn,
September 16, 1993, and September 20, 1993, Plaintiff's Exhibits 3,
5.
Under Plaintiff's zoning ordinance, with certain
· exceptions not'hererelevant,'a'prerequisite to"any"change of use~
ownership, proprietorship or occupancy within the Township" is
"site plan approval," following a review by the township planning
commission and board of supervisors, and the issuance of a new
"Certificate of Occupancy." Id., Plaintiff's Exhibit I (zoning
ordinance), SSg02, 903. Defendant obtained a waiver of site plan
review, pursuant- to S902(B) .of the ordinance, upo~ .... the
representation discussed in the text. Id., Plaintiff's Exhibit 4.
The purpose of "site plan review" as required by the
ordinance was "to determine whether the proposed use, building,
structure, addition to any building, use or structure will conform
to the revised Statutes, the Zoning Ordinance, Land Subdivision
Ordinance, and all other applicable ordinances and requirements of
the Township, County, State, Federal Government or other agencies
with jurisdiction over matters pertaining to site development."
Id., Plaintiff's Exhibit 1 (zoning ordinance), S901(A).
2~ Id., Plaintiff's Exhibit 3.
6
was obtained by Defendant by the following representation, in
clarification of the requested use:
Wellington Farms will continue to use the
property as a poultry farm. As Hoover Farms
and Konhaus Farms had done before it,
Wellington Farms will bring young birds onto
the farm until maturation. Upon maturation,
the poultry will be slaughtered, dressed, and
packaged on the property. The poultry will '
then be transported off-site and distributed
to various retailing facilities.
Wellingt°n Farms will raise and produce
(that is dress and market) poultry ....
Wellington Farms does not intend to conduct a
slaughter house; that is, truck in live,
mature birds and then slaughter the birds upon
delivery. Wellington Farms generally will be
dressing only those birds that have been
raised on the property.22
This representation was consistent with prior practice on the
property, located in an AG-Agricultural zoning district,23 in that
any pre-zoning ordinance instances of the slaughtering of poultry
not raised on the farm were clearly secondary and highly incidental
to the primary, operation of raising and slaughtering, poultry grown
on the premises.24 In this regard, the "farm regulations" in
22 Id., Plaintiff's Exhibit 4 (letter from an attorney for
Defendant to Plaintiff's planning commission) (emphasis added).
23 Id., Plaintiff's Exhibit 3; Plaintiff's Exhibit 1 (zoning
ordinance), art. 150.
24 Id., N.T. 122-23 (testimony of Paul Konhaus).
7
NO.'37 EQUITY I'993 ....
Plaintiff's zoning ordinance, applicable to uses in AG districts,25
permit the "slaughtering, dressing and marketing of poultry," only
if they are "incidental to the operation of a farm."~6
Although Plaintiff granted Defendant a concession by
permitting it to import, temporarily, mature birds for slaughter in
order to start up its operation,~7 Defendant thereafter failed to
act in accordance with the representation which resulted in its
permission for occupancy. It instead maintained an operation which
was primarily a slaughterhouse for imported poultry, with any
raising of poults or chicks being incidental to that use. From
August to December, 1992, for instance, Defendant imported 4,000 to
9,000 poultry for slaughter per weekc while raising no poultry on
the premises.~8
In direct contrast to the representation made to Plaintiff, it
was Defendant's intention ."from the beginning" to. import birds of
a mature nature for slaughter upon the premises.29 It was, in fact,
never the intention of Defendant that its operation be primarily a
~ Id., Plaintiff's Exhibit 1 (zoning ordinance), S151.1.
26 Id., Plaintiff's Exhibit 1 (zoning ordinance), §808(1)(f)
(emphaSis added). '-. ............ ~ . ....... .~.~ .....
27 Id., Plaintiff's Exhibit 6.
2. Id., N.T. 131, 148-49 (testimony of George Oppenheimer).
~9 Hearing on Defendant's Motion To Modify and/or Clarify,
July 26, 1995, N.T. 78 (testimony of George Oppenheimer).
8
poultry-raising farm, with a secondary slaughtering activity.3°
On or about February 18, 1993, Plaintiff sent Defendant a
notice of zoning violation because of its aforesaid activity,
ordering the same to cease and desist;3~ a more detailed,
supplementary notice to the same effect was sent on March 1, 1993.32
Defendant appealed to the township's zoning hearing board, and a
hearing was held by the board on the appeal on Wednesday, April 21,
1993.33 By order of May 25, 1993, the board unanimously denied the
appeal.~4
An appeal was taken by Defendant to this court from the
board's decision. The decision of the board was subsequently
upheld by this court,3~ and this court's decision was thereafter
upheld by the Commonwealth Court.36
Notwithstanding the existence of a proper cease and desist
3o Id., N.T. 78.
3~ Hearing on Plaintiff',s PetitiOn for prelimina~ in~unctiOn'
September 16, 1993, and September 20, 1993, Plaintiff's Exhibit 8.
Id., Plaintiff's Exhibit 9.
Id., Plaintiff's Exhibit 10.
Id., Plaintiff's Exhibit 10.
Wellington Farms, Inc. v. The Zoning Hearing Bd. of Silver
Spring Township, No. 1996 Civil 1993 (March 18, 1994) (Oler, J.).
36 Wellington Farms, Inc. v. Zoning Hearing Bd. of Silver
Spring Township, No. 890 C.D. 1994 (March 31, 1995) (Doyle, J.).
9
NO.'37 'EQUITY .1993
order, Defendant continued its activities.37 On September 3, 1993,
Plaintiff commenced the present action in equity against Defendant
for injunctive and other relief, and filed a petition for a
preliminary injunction.
A hearing on the petition for a preliminary injunction was
held by this court On September 16 and 20, 1993. The evidence at
the hearing established the backgroundrecited above, and centered
around the distinction between an operation where the vast majority
of birds were raised from chiCkS or poUltS on the premises and the
type of operation being conducted by Defendant.TM
After the hearing, in applying the law to the facts as it
found them, the court concluded as follows:
In the present case, the evidence has
thus far demonstrated that Defendant has
established a primary operation on the
premises in the form of a slaughterhouse for
imported poultry, whichis.(a) not .a permitted
agricultural use, (b) is a change in the
nature from the prior use, (c) is violative of
a zoning hearing board decision which remains
binding upon Defendant, and (d) is in
· derogation of an express·.promise ~upon which
Plaintiff relied in permitting Defendant's ~ ·
occupancy.~9
37 Hearing on Plaintiff's Petition for Preliminary Injunction,
3~ See, e.g., id., N.T. 136, 152 (testimony of George
Oppenheimer).
3~ Opinion and Order of Court, September 27, 1993, at 8 (Oler,
J.), 42 Cumb. L.J. 627, (1993), aff'd, No. 2501 C.D. 1993 (July
21, 1994) (Smith, J.) (Pa. Commw. Ct.).
10
NO. 37 EQUITY'1993 ............... ~ ......
Accordingly, the court issued the preliminary injunction referred
to above, enjoining Defendant from the slaughter of "poultry not
raised upon the premises ....
The preliminary injunction was appealed by Defendant to the
Commonwealth Court on October 21, 1993. On the appeal, Defendant
contended, inter alia, that the court's decree was incompatible
with the Protection of Agricultural Operations from Nuisance Suits
and Ordinances Act.4~ On July 21, 1994, the preliminary injunction
was affirmed by the Commonwealth Court.42 The Court's opinion
stated, among other things, that "the [Protection of Agricultural
Operations from Nuisance Suits and Ordinances Act] is not
applicable to the case sub judice."43 No petition for allowance of
appeal to the Supreme Court was filed by Defendant.44
In direct violation of the preliminary injunction, Defendant,
between the months of January andMay of~1994, and Novemberof 1994
and April of 1995, imported and slaughtered at least 245,000 birds
4o' D~cree' september~27, i993. ~ ~
4~ See Opinion, Township of Silver Spring v. Wellington Farms,
Inc., No. 2501 C.D. 1993, at 1 n.2 (July 21, 1994) (Smith, J.).
42 Order, Township of Silver Spring v. Wellington Farms, Inc.,
''NO. 2501'C,D. '~993:"(jUlY 2'1,: 1-9'94)' "(smith,.. j.). ' · : ....
43 Id. at 1-2 n.2.
44 Hearing on Plaintiff's Petition for Adjudication of Civil
Contempt and Imposition of Sanctions, and Plaintiff's Amended and
Supplementary Petition for Adjudication of Civil Contempt and
Imposition of Sanctions, May 17, 1995, N.T. 10-11.
11
NO'. 3.7 EQUITY' 1993 ....... :
upon the premises.4~ After admitting this in court,46 Defendant was
adjudicated in civil contempt.47 Although the court, adopting a
procedure approved by Defendant,48 imposed only a prospective
payment by Defendant in the event of future violations,49 it felt
constrained to make the following observation to the parties and
their counsel in open court:
I will say that I don't think I have ever
seen a more flagrant violation of a Court
Order in my experience, and I'm shocked and
disappointed.50 ...........
Four days later, Defendant resumed its practice of violating
~the preliminary injunction, by importing and slaughtering birds
upon the premises, and continued to do so for eight additional
days.5~
4~ Order of Court, April 21, 1995.
4~ .Hearingon Plaintiff's. Petition.for, Adjudication ,of Civil
Contempt, April 21, 1995, N.T. 3-4.
47 Order of COurt, April 21, 1995.
.... 48 Hearing on Plaintiff's Petition for Adjudication of Civil,
Contempt, April 21, 1995, N.T. 6; Hearing on Plaintiff's Petition
for Adjudication of Civil Contempt and Imposition of Sanctions, and
Plaintiff's Amended and Supplementary Petition for Adjudication of
Civil Contempt and Imposition of Sanctions, May 17, 1995, N.T. 7-8.
49. Order of Court, .April 21, 1995.
50 Hearing on Plaintiff's Petition for Adjudication of Civil
Contempt, April 21, 1995, N.T. 6.
5~ Hearing on Plaintiff's Petition for Adjudication of Civil
Contempt and Imposition of Sanctions, and Plaintiff's Amended and
Supplementary Petition for Adjudication of Civil Contempt and
Imposition of Sanctions, May 17, 1995, N.T. 5.
12
NO%'37"EQUITY'1993 ......... . ..... . ..... '...- ·
Before a hearing scheduled for May 8, 1995, on a new petition
for contempt filed by Plaintiff could be held, Defendant secured an
ex parte bankruptcy court order enjoining Plaintiff from
interfering with its slaughtering operation.52 Defendant had filed
for reorganization under the Bankruptcy Code on May 4, 1995.53
Defendant was unsuCcessfUl, however, in convincing the
bankruptcy court to continue this order. The order was vacated on
May 12, 1995.54
At a hearing on May 17, 1995, held by this court, Defendant
admitted that it had again violated the preliminary injunction by
importing and slaughtering poultry on each of nine days following
the April 21, 1995, adjudication of contempt.55 In fact, Defendant
admitted that it was violating the preliminary injunction on the
day of the hearing on May 17, 1995.56 Defendant was again
adjudicated,.in cont'empt, andthe monetary~, sanctions .previously .......
stipulated were imposed.57 No payment, however, has been made by
Id., May 8, 1995, N.T. 5-6 and Defendant's Exhibit 3.
Id., Defendant's Exhibit 1.
Id., May 17, 1995, Plaintiff,s'Exhibit 1.
Id., N.T. 4-5.
Id., N.T. 5.
Order of Court, May 17, 1995. The court refused a request
of Plaintiff that Defendant's business be padlocked. Hearing on
Plaintiff's Petition for Adjudication of Civil Contempt and
Imposition of Sanctions, and Plaintiff's Amended and Supplementary
Petition for Adjudication of Civil Contempt and Imposition of
Sanctions, May 17, 1995, N.T. 9-10.
13
NO. 37 EQUITY
Defendant.58
With this history of events, Defendant filed a motion on May
22, 1995, to suspend the preliminary injunction for three weeks so
that it could import and slaughter 20,000 more birds.59 As noted
previously, this motion was opposed by Plaintiff and denied by the
court, after hearing.6°
A few days later, Defendant filed a Motion To Modify and/or
Clarify the preliminary injunction.6~ The gist of the motion, again
as' n0tedPrevioUSiY,~Was thai'the term ,.P0Ul~ ..~ raiSed'uPon the
premises" should be construed to include birds whose final two
weeks of life were spent upon the premises, and that a construction
of the injunction which would not permit the slaughter of imported
birds where an equal number of birds raised on the premises were
also slaughtered would be incompatible with the Protection of
..~Agricultural Operations.from. Nuisance Suits. and Ordinances.Act.62
At a hearing held on the motion on July 26, 1995, Defendant
presented evidence tending to show that birds can be successfully
s8 Hearing on Defendant's Motion To Modify and/or Clarify,
July 26, 1995, N.T. 12-13. The order was not appealed.
Defendant's Motion To Modify Injunction,, filed May 22,
Order of Court, May 22, 1995.
6~ Defendant's Motion To Modify and/or Clarify, filed May 26,
1995.
Id., prayer for relief.
14
EQUITY 1993
moved to a new location when they are chicks or poults (up to three
days old)63 or between the fifth and sixth week of life;64 that
Defendant's birds would weigh about three and a half pounds between
the fifth and sixth week;~s that the ideal slaughter weight for
Defendant's birds would be between five and five and a half
Pounds;~ and that 'the average'bird woUld 'be slaughtered at' that
weight when it was eight weeks of age.~7 Based on this evidence,
Defendant proposed a construction of the preliminary injunction
'WhiCh'W°Uiddeembirds deliveredt~·~h~premises~f°r'th~ final two
and a half weeks of their eight-week lives to be "poultry ...
raised upon the premises," and which would permit an equal number
of eight-week old birds to be delivered to the premises and
slaughtered immediately - the latter construction being allegedly
mandated by the Protection of Agricultural Operations from Nuisance
Suits and Ordinances Act.68
As noted previously, the court did not accept Defendant's
position. It held that "poultry ... raised upon the premises"
~3 Hearing on Defendant's Motion To Modify and/or Clarify,
July 26, 1995, N.T. 50-51.
Id., N.T. 60.
Id.
Id., N.T. 57.
Id., N.T. 62.
Id., N.T. 63-64.
15
NO.-37'EQUITY'1993 .'" . ..
meant poultry "grown from chicks or poults upon the premises," and
it declined to subject the preliminary injunction to further
treatment.69 From this order, Defendant has appealed.
STATEMENT OF LAW
Preliminary injunctions. In the absence of a change of
circumstances, a party is not' entitled to' an'Order changing or
dissolving a preliminary injunction. See County of Butler v. Local
585, Service Employees International Union, AFL-CIO, 158 Pa. Commw.
519, 631 A.2d 1389 (1993); Bargaintown U.S.A., Inc. v. Whitman-, -9
Lebanon L.J. 50 (1962). This would appear to be particularly true
where the preliminary injunction was affirmed on appeal.
Protection of Aqricultural Operations from Nuisance Suits and
Ordinances Act. Under the Protection of Agricultural Operations
from Nuisance Suits and Ordinances Act, it is provided, inter alia,
as follows..: ~ ........ · .... .~ ~
Direct commercial sales of agricultural
commodities upon property owned and operated
by a landowner who produces not less than 50%
of the commodities sold shall be authorized,
notwithstanding municipal ordinance, public
nuisance or zoning prohibitions. Such direct
sales shall be authorized without regard to
the 50% limitation under circumstances of crop
failure due to reasons beyond the control of
the landowner.TM
Law of the case. "'It is hOrnbook law that issues decided by
69 Order of Court, July 27, 1995.
70 Act of June 10, 1982, P.L. 454, §3(b), as amended, 3 P.S.
§953(b).
16
NO. 37 EQUITY 1993
an appellate court on a prior appeal between the same parties
become the law of the case and will not be reconsidered on a second
appeal.'" McCormick v. Columbus Conveyor Co., 522 Pa. 520, 523,
564 A.2d 907, 909 (198~), quoting Commonwealth v. Tick, 431 Pa.
420, 427, 246 A.2d 424, 427 (1968).
APPLICATION OF LAW TO FACTS
In the present case, several factors led this court to issue
the order now on appeal to the Commonwealth Court. First, there
was no change of circumstances warranting a change of the
preliminary injunction, which had been affirmed on appeal. Second,
the meaning of the term "poultry ... raised upon the premises" was
clearly indicated by the context of the 1993 hearing to be poultry
"grown from chicks or poults upon the premises." The construction
advanced by Defendant that a bird which spent the final two and a
half weeks of its life at Defendant's location would have been
"raised" upon the premises was incompatible with the term's
intended meaning, its understood meaning and common usage.
Third, the Commonwealth Court previously dealt with the
applicability of the Protection of Agricultural Operations from
Nuisance Suits and Ordinances Act to the case sub judice. Should
this prior appellate decision for some reason be deemed not to
contain the law of the case on the issue, Defendant's argument
remains uncompelling on the merits. The portion of the statute
relied upon by Defendant protects the commercial sale of
17
NO. 37 EQUITY 1993
agricultural products brought to a farm, not the slaughtering of
animals.
Finally, Defendant's proposal of an operation consisting of
the slaughter of hundreds of thousands of imported birds upon its
premises each year, half butchered immediately upon arrival and
half butchered within two-and-a-half weeks of arrival, would still
represent, in the court's view, "a primary operation on the
premises in the form of a slaughterhouse for imported poultry,
which is (a) not a permitted agricultural use, (b) is a change in
the nature from the prior use, (c) is violative of a zoning hearing
board decision which remains binding upon Defendant, and (d) is in
derogation of an express promise upon which Plaintiff relied in
permitting Defendant's occupancy." These were the stated bases for
the issuance of the preliminary injunction in the first place.
Richard C. Snelbaker, Esq.
Philip H. Spare, Esq.
44 West Main Street
Mechanicsburg, PA 17055
Attorney for Plaintiff
Michael W. Flannelly, Esq.
Sara A. Austin, Esq.
Lawrence V. Young, Esq.
29 North Duke Street
York, PA 17401
Attorneys for Defendant
:rc
18