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December 2, 2005.


The opinion of the court was delivered by: JOHN JONES III, District Judge



Before this Court is a Report and Recommendation by Magistrate Judge Blewitt recommending that Defendant Thomas Bast's, Hazle Township Zoning Officer ("Bast"), Motion for Summary Judgment be denied. A single issue in this case, namely whether Bast is entitled to absolute immunity in his individual capacity, was remanded to Magistrate Judge Blewitt from the Third Circuit Court of Appeals. Magistrate Judge Blewitt's Report and Recommendation is devoted to the disposition of this remanded issue.

  Objections to Magistrate Judge Blewitt's Report and Recommendation have been filed by the parties. (Rec. Docs. 123-125). Therefore, this matter is now ripe for disposition. STANDARD OF REVIEW:

  When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. ยง 636(b)(1); Local Rule 72.31. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


  Defendant Bast was the Hazle Township Zoning Officer for all relevant times of this case. Plaintiff, Lonzetta Trucking and Excavating Company ("Plaintiff" or "Lonzetta"), is the lessee and operator of a quarry in Hazle Township, Pennsylvania. On December 6, 2000, Bast issued a Notice of Violation to Plaintiff directing Plaintiff to cease and desist all quarrying operations. It is disputed whether or not Bast was directed by Zoning Board Member Benyo ("Benyo") to issue the cease and desist order. Bast alleges that he was not directed to issue the order and that he did not consult Benyo prior to its issuance. However, Benyo testified that on December 5, 2000, he directed Bast to issue the order.

  On January 4, 2002, Plaintiff filed a complaint (doc. 1) in the United States District Court for the Middle District of Pennsylvania. Thereafter, this case was assigned to Magistrate Judge Blewitt on March 20, 2002. (Rec. Doc. 10). The parties filed cross-motions for summary judgment on November 3, 2003 (doc. 43) and December 5, 2003. (Rec. Doc. 52). On March 15, 2004, Magistrate Judge Blewitt entered a Report and Recommendation (doc. 67) denying Plaintiff's motion for summary judgment and granting in part and denying in part Defendants' motion for summary judgement.*fn1 (Rec. Doc. 67). On June 9, 2004, we adopted the Report and Recommendation in its entirety. (Rec. Doc. 88).

  On June 22, 2004, Defendants filed an appeal of our Order (doc. 88) adopting the Report and Recommendation. (Rec. Doc. 92). On March 31, 2005, the Third Circuit Court of Appeals remanded to Magistrate Judge Blewitt for disposition the issue of whether or not the Zoning Board members were entitled to absolute immunity in their individual capacities. (Rec. Doc. 97). Plaintiff conceded that the Defendant members of the Zoning Board were performing quasi-judicial function and are therefore entitled to absolute immunity from this action in their individual capacities. (Rec. Doc. 109, n. 1).

  Therefore, the sole issue disposed of by Magistrate Judge Blewitt in his Report and Recommendation was whether Bast was performing quasi-judicial functions and thereby entitled to absolute immunity in his individual capacity. Magistrate Judge Blewitt found that Bast was not performing quasi-judicial functions, and recommended that Defendant Bast's motion for summary judgment requesting absolute judicial immunity in his individual capacity be denied.

A. Summary Judgment Standard
  Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED.R. CIV. .P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

  Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

  Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

  It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple ...

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