# Gilbert v. Synagro Central, LLC

> Superior Court of Pennsylvania · April 15, 2014 · 2014 Pa. Super. 77

URL: https://www.frixlaw.com/law-library/cases/4968741

## Case

- **Full name:** Ralph GILBERT, Gloria Gilbert, Michelle Torgerson, Edwin Torgerson, Melda Bittorf, Beverly Cox, William Cox, Kimberly Miles, Clea Fockler, John Fockler, Linda Eckert, Scott Eckert, William Strine, Kenny Jasinski, Dennis Jasinski, Kathryn Jasinski, Joseph Jasinski, Patricia Unverzagt, Megan Jacobs, Barbara Unverzagt, Donna Parr, Jeff Fodel, Wendy Fodel, Jennifer Jasinski, John Jasinski, Judy Queitzsch, Jean Fry, Rick McSherry, John Freese, Donna Lynn Freese, Jeff Van Voorhis, Susan Lee Fox, Terrence Fancher and Donna Fancher v. SYNAGRO CENTRAL, LLC, Synagro Mid-Atlantic, George Phillips, Hilltop Farms and Steve Troyer
- **Court:** Superior Court of Pennsylvania
- **Decided:** April 15, 2014
- **Citations:** 2014 Pa. Super. 77; 90 A.3d 37; 2014 Pa. Super. LEXIS 167; 2014 WL 1464452
- **Precedential status:** Published
- **Opinion:** Dissent by Platt
- **Judges:** Donohue, Ott, Platt
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Gilbert, R. v. Synagro Central Aplts, 634 Pa. 651 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4968741

## Opinion text

DISSENTING OPINION BY
PLATT, J.:
I respectfully dissent. In my view, Appellants’ complaint was untimely filed, based on the one-year statute of repose at 3 P.S. § 954(a). Therefore, I would affirm the trial court’s decision.
The leaned Majority concludes that “issues of material fact remain with respect to whether the use of biosolids in this case is a ‘normal agricultural operation’” to determine that Appellees’ conduct fell outside the statute of limitation set forth in the Right to Farm Act (RTFA) at 3 P.S. § 954(a). (Majority Opinion, at 39). I believe this conclusion is unwarranted.
It is well-settled that “the statute of limitations begins to run .as soon as the right to institute and maintain a suit arises.” Hopkins v. Erie Ins. Co., 65 A.3d 452, 460 (Pa.Super.2013) (citation omitted).
The Majority correctly concludes that the circumstances constituting the basis of the nuisance action, the application of bio-solids on Appellees’ farm, began in March 2006, and Appellants filed their complaint in July 2008. (Majority Opinion, at 39-41, 44-45, 45-46).
The Majority contends, however, that the application of biosolids fails to qualify *53 as a “normal agricultural operation,” in order to apply the statute of repose. (Id. at 46). It acknowledges that there are EPA and industrial guidelines on biosolid application, which strongly suggests that the use of biosolids is, contrary to its determination, a normal agricultural practice under 3 P.S. § 952. (Id. at 46-47, 50). Instead, the Majority concludes that there remains a genuine issue of material fact as to whether the use of biosolids “was in any event not ‘normal’ as specifically employed by the Farm Parties in this case.” (Id. at 50). However, this exception is unwarranted, because it conflates our standard for grant of summary judgment with the question of law raised by whether the statute of limitations has run. See Wilson v. Transp. Ins. Co., 889 A.2d 563, 570 (Pa.Super.2005).
The cases relied on by the Majority do not stand for its assertion that “[w]ith respect to the applicability of statutes of repose, ... issues of fact are often determinative, and a party may avoid summary judgment by identifying sufficient evidence in the record to establish that one or more issues of material fact remain for consideration by the eventual finder of fact.” (Majority Opinion, at 49); see, e.g. McConnaughey v. Building Components, 536 Pa. 95 , 637 A.2d 1331 (1994) (genuine issue of material fact regarding whether appellee was involved in allegedly tortious conduct).
Here, there is no genuine issue of material fact as to the identity of the parties, the date of commencement of the application of biosolids, or the date on which Appellants filed their complaint. See Hopkins, supra at 460 . We cannot reach the question of whether the application of bio-solids “was in any event not ‘normal’ as specifically employed by the Farm Parties in this case” because Appellants’ complaint was not timely filed. (Id. at 50). Thus, I believe that the Majority erred in sidestepping the statute of limitations in order to reach the issues raised by Appellants’ untimely nuisance claim.
Therefore, I would conclude that the trial court correctly determined that summary judgment was appropriate where Appellants’ complaint was untimely under the one-year statute of limitation under the RTFA at 3 P.S. § 954(a). See Home v. Haladay, 728 A.2d 954, 954 (Pa.Super.1999), appeal denied, 560 Pa. 727 , 745 A.2d 1223 (1999).
I would affirm the grant of summary judgment by the trial court. Accordingly, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4968741. Public record. Not legal advice.