United States District Court, M.D. Pennsylvania
Carlson Magistrate Judge.
D. Mariani United States District Judge.
INTRODUCTION and PROCEDURAL HISTORY
before the Court is a Report and Recommendation
("R&R") (Doc. 35) by Magistrate Judge Martin C.
Carlson in which he recommends that The Dorrance Township
Board of Supervisors and Alan Snelson's Motion to Dismiss
Amended Complaint (Doc. 2) and Motion of Defendants, Code
Inspections, Inc. and Ken Fenstermacher, to Dismiss
Plaintiffs' Amended Complaint for Failure to State a
Claim upon Which Relief Can Be Granted, Pursuant to F.R.C.P.
12(b)(6) (Doc. 7) be granted as to Plaintiffs' Fourteenth
Amendment Procedural Due Process claims and Plaintiffs'
state law claims be dismissed without prejudice for renewal
in state court (Doc. 35 at 20-22). For the reasons discussed
below, the Court disagrees.
operative complaint is the Amended Complaint filed in the
Court of Common Pleas of Lackawanna County (Doc. 2-1) and
removed to this Court on June 26, 2018, by Defendants
Dorrance Township Board of Supervisors and Alan Snelson
("Dorrance Defendants") (Doc. 1). Defendants Code
Inspections, Inc. and Ken Fenstermacher ("CII
Defendants") consented to the Notice of Removal. (Doc. 1
at 3 ¶ 9.) Although the Amended Complaint contains five
counts, the Court of Common Pleas denied Plaintiffs'
Petition as to Counts II and III (Doc. 2 ¶ 3 & n.1)
with the result that Counts I, IV, and V are before this
Court. Count I does not identify a specific cause of action.
(See Doc. 2-1 at 1.) However, as discussed in the R&R,
Count I contains federal procedural due process claims which
provide the basis for federal jurisdiction. (Doc. 35 at 3-4.)
Judge Carlson provided the following brief factual summary of
the underlying action:
This litigation involves a longstanding local land use
dispute between Anthony and Kelly Halchak, who have for the
past ten years sought an occupancy permit to operate a used
car business on a parcel of land which they own, and Dorrance
Township, Alan Snelson, the township zoning officer, as well
as Code Inspections, Inc., a private firm hired by the
township to provide code inspection and enforcement services
for the township, and one of its employees, Ken
Fenstermacher. (Doc. 2-1.)
(Doc. 35 at 2.) There is no dispute that Plaintiffs'
application for an occupancy permit was never granted or
denied. (See, e.g., Doc. 8 at 5.)
filed objections to the R&R and a brief in support of the
objections on September 13, 2019. (Docs. 36, 36-1.)
Defendants did not file objections to the R&R and the
time for doing so has passed. Dorrance Defendants and Cll
Defendants each filed a timely response to Plaintiffs'
objections. (Docs. 37, 38.)
District Court may "designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and
recommendations for the disposition" of certain matters
pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a
party timely and properly files a written objection to a
Magistrate Judge's Report and Recommendation, the
District Court "shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." Id. at § 636(b)(1)(C); see
also Fed. R. Civ. P. 72(b)(3); M.D. Pa. Local Rule 72.3;
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).
"If a party does not object timely to a magistrate
judge's report and recommendation, the party may lose its
right to de novo review by the district court."
EEOC v. City of Long Branch, 866 F.3d 93, 99-100 (3d
Cir. 2017). However, "because a district court must take
some action for a report and recommendation to become a final
order and because the authority and the responsibility to
make an informed, final determination remains with the judge,
even absent objections to the report and recommendation, a
district court should afford some level of review to
dispositive legal issues raised by the report."
Id. at 100 (internal citations and quotation marks
conducted the required de novo review, the Court
concludes that Defendants have not shown that Plaintiffs'
Amended Complaint does not state a plausible claim for relief
based on the asserted Fourteenth Amendment procedural due
object to the R&R's recommendation that
Defendants' motions be granted as to their federal
procedural due process claims, summarizing their position as
follows: "[t]he Report is focused on the Pennsylvania
procedural schemes with regard to land use issued, but the
Report fails to review the actions or inactions of Dorrance
and its code enforcement official and how their actions or
inactions effectively prevented the Halchaks from any
procedural process resulting in an absolute denial of their
due process rights." (Doc. 36 at 9 ¶ 31.) For the
reasons that follow, the Court concludes that Defendants and
the R&R do not adequately address Plaintiffs' Amended
Complaint and facts asserted therein in the appropriate
context regarding their claimed Fourteenth Amendment
Procedural Due Process Clause violation.
outset, the R&R identified federal courts' general
consideration of local land use disputes, noting that
federal courts have repeatedly 
emphasize[d]... our reluctance to substitute our judgment for
that of local decision-makers, particularly in matters of
such local concern as land-use planning, absent a local
decision void of a "plausible rational basis."
Pace, 808 F.2d at 1035. We decline to federalize
routine landuse decisions. Rather, the validity of land-use
decisions by local agencies ordinarily should be decided
under state law in state courts.
Sameric Corp. of Delaware v. City of Philadelphia,
142 F.3d 582, 596 (3d Cir. 1998). Thus, decisional case law
in federal court studiously "avoid[s] converting federal
courts into super zoning tribunals." Eichenlaub v.
Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004).
(Doc. 35 at 1-2.)
Magistrate Judge then looked to the legal standards governing
federal procedural due process claims in local land use