The opinion of the court was delivered by: JOHN JONES III, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
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. § 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).
FACTUAL AND PROCEDURAL BACKGROUND:
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
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 ...