Filed: Mar. 31, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 3-31-2005 Lonzetta Trkng v. Schan Precedential or Non-Precedential: Non-Precedential Docket No. 04-2758 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Lonzetta Trkng v. Schan" (2005). 2005 Decisions. Paper 1400. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1400 This decision is brought to you for free and open access by the Opinion
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 3-31-2005 Lonzetta Trkng v. Schan Precedential or Non-Precedential: Non-Precedential Docket No. 04-2758 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Lonzetta Trkng v. Schan" (2005). 2005 Decisions. Paper 1400. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1400 This decision is brought to you for free and open access by the Opinions..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-31-2005
Lonzetta Trkng v. Schan
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2758
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Lonzetta Trkng v. Schan" (2005). 2005 Decisions. Paper 1400.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1400
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2758
LONZETTA TRUCKING AND EXCAVATING COMPANY
v.
JOSEPH SCHAN; WILLIAM GALLAGHER;
PAUL MATULEVICH; HAZLE TOWNSHIP
ZONING HEARING BOARD; THOMAS C. BAST;
ANDREW BENYO; ANTHONY MATZ; RUTH
CLATCH; HAZLE TOWNSHIP,
Appellants
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 02-cv-00018)
District Judge: Honorable John E. Jones, III
Argued March 9, 2005
Before: NYGAARD, McKEE, and RENDELL, Circuit Judges.
(Filed: March 31, 2005)
Joseph A. O’Brien, Esq. (Argued)
Oliver Price & Rhodes
1212 South Abington Road
P. O. Box 240
Clarks Summit, PA 18422
Counsel for Appellant
Bruce J. Phillips, Esq. (Argued)
Wetzel Caverly Shea Phillips & Rodgers
15 Public Square
Suite 210
Wilkes-Barre, PA 18701
Counsel for Appellee
_____
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellants 1 seek interlocutory appeal from the District Court’s Memorandum and
Order denying their Motion for Summary Judgment based on their defense of absolute
and qualified immunity. Additionally, Appellants seek interlocutory review of the
District Court’s denial of their Motion for Summary Judgment on Appellee’s substantive
due process claims.
We exercise plenary review over a District Court’s grant of summary judgment.
Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.
2003). For the reasons that follow, we affirm in part and reverse and remand in part. We
1
Appellants consist of a group of Zoning officials including: Joseph Schan, William
Gallagher, Paul Matulevich, Thomas Bast, Andrew Benyo, Anthony Matz, Ruth Clatch, the
Hazle Township Zoning Board, and the Hazle Township. For the sake of brevity we will
refer to Appellants as the "Board." At all relevant times, Benyo, Matz and Clatch were
Supervisors of Hazle Township; Schan, Gallagher, and Matulevich were members of the
Hazle Township Zoning Board; and Bast was the Zoning Officer of Hazle Township.
2
affirm the District Court’s denial of Appellants Motion for Summary Judgment regarding
absolute immunity in their official capacities, qualified immunity, and on the substantive
due process claim. We reverse and remand, however, on the District Court’s denial of the
absolute immunity claim against the zoning officials in their individual capacities.
I.
Appellee Lonzetta Trucking and Excavating Company operates a quarry in Hazle
Township, Luzerne County, Pennsylvania. This case involves numerous zoning
disagreements and the specific cause of action arises out of the summary closure of
Lonzetta’s quarry.
The area in which Lonzetta operated its quarry was zoned as an M-1 Mining
District. On December 22, 1997, Lonzetta obtained a Non-Coal Surface Mining Permit
from the Pennsylvania Department of Environmental Protection. On June 5, 2000, Bast,
the Hazle Township Zoning Officer, denied Lonzetta’s application for a building and
zoning permit to operate a mobile crusher and screening plant at the quarry, and Lonzetta
appealed to the Hazle Township Zoning Board. After hearing evidence, the Zoning
Board remanded the matter to Bast. On September 18, 2000, Bast issued an opinion
stating that “no Zoning Permit or Certificate is needed to operate this quarry . . . [a]
Business Occupancy Certificate is required for the operation . . . and a Business
Occupancy Permit is hereby granted.”
TRAQ, Inc. is a Pennsylvania not-for-profit corporation organized to oppose
3
Lonzetta’s quarry. On September 20, 2000, TRAQ appealed Bast’s decision and the
issuance of the Certificate of Occupancy to the Zoning Board. After holding hearings on
TRAQ’s appeal, the Zoning Board sustained TRAQ’s appeal. The Board issued findings
of facts and conclusions of law in support of its decision.
After consulting with the solicitor, Bast issued a Notice of Violation to Lonzetta
on December 6, 2000. The Notice to Lonzetta provided: “[a]s a result of the Board’s
Decisions and as directed by the Hazle Township Supervisors you are hereby ordered to
cease and desist all quarrying operations.” Lonzetta appealed the Decision of the Zoning
Board to the Court of Common Pleas of Luzerne County the same day. It also filed a
petition for a stay of the Zoning Board decision to the Court of Common Pleas. The
parties subsequently entered into a stipulation resolving Lonzetta’s petition for a stay.
The Court of Common Pleas sustained Lonzetta’s appeal and reversed the decision
of the Zoning Hearing Board on March 15, 2001. The Court concluded that: (1) the
Township’s attempt to regulate the quarry in the special exception process was preempted
by the PA Non-Coal Surface Mining Conservation and Reclamation Act; (2) the
Township’s denial of a business occupancy permit constituted an improper collateral
attack on the permit granted by the Department of Environmental Resources; and (3) the
provisions of the Hazle Township Zoning Ordinance were inconsistent and ambiguous as
to whether the quarry was a permitted use under the M-1 Zone and that the Zoning Board
should have interpreted the ambiguity in favor of the landowner and concluded that the
4
use was permitted.
On January 30, 2002, the Commonwealth Court affirmed the decision of the Court
of Common Pleas. The Commonwealth Court disagreed, however, with the lower court
pointing out that Township’s do have a right — albeit a limited right — to regulate
quarries in the special exception process and “that the Court of Common Pleas is not
correct on the preemption issue.” The Commonwealth Court agreed with the Court of
Common Pleas that there were ambiguities in the Ordinance as to whether the quarry was
a permitted use in the M-1 zone and stated that these ambiguities should have been
resolved in favor of the landowner. Therefore, the Commonwealth Court concluded that
the quarry was a permitted use.
II.
Lonzetta filed this action pursuant to 42 U.S.C. §1983, claiming that the Board
violated its procedural and substantive due process rights under the Fourteenth
Amendment. The individual zoning officials were sued in both their individual and
official capacities.
The parties filed cross motions for summary judgment. Magistrate Judge Thomas
Blewitt filed a Report and Recommendation, recommending that the Court deny the
Board’s Motion on Lonzetta’s substantive due process claim and grant the Board’s
Motion on Lonzetta's procedural due process claim. Magistrate Judge Blewitt also
recommended that the District Court deny Lonzetta’s Motion. Both parties filed
5
objections to Judge Blewitt’s recommendation. United States District Court Judge John
Jones adopted Magistrate Judge Blewitt’s Report and Recommendation. Thus, the
District Court granted the Board’s Motion for Summary Judgment with respect to
Lonzetta’s procedural due process claim and denied the Board’s Motion for Summary
Judgment regarding their claim of immunity and regarding Lonzetta’s substantive due
process claim. On the same day, the Board filed a Notice of Appeal.
The Court of Appeals Clerk’s Office issued a directive advising the parties that
this appeal would be submitted to the merits panel for possible dismissal due to a
jurisdictional defect. Both parties have submitted letters regarding the possible
jurisdictional defect.
III.
“As a general rule, the federal appellate courts have no jurisdiction under 28
U.S.C. § 1291 to review interlocutory decisions such as the denial of summary
judgment.” Walker v. Horn, 286 F.3d 705, 709 (3d Cir. 2002). The exception to this rule
is the Collateral Order Doctrine. An interlocutory decision falls within the doctrine if it
meets three requirements: (1) the decision conclusively determines the disputed issue; (2)
the issue must be completely separate from the merits of the action; and (3) the decision
must be effectively unreviewable on appeal from a final judgment. Id at 709 (citing
Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978)).
A. Absolute Immunity Jurisdiction
6
“The Supreme Court has repeatedly applied the collateral order doctrine to hold
that orders denying absolute immunity are reviewable on interlocutory appeal.” Walker,
286 F.3d at 709. This is because, as the Court has explained, “absolute immunity creates
not only protection from liability, but also a right not to stand trial.” Id at 710. (citing
Mitchell v. Forsyth,
472 U.S. 511, 525 (1985). The Supreme Court and this Court have
held that an order denying a motion for summary judgment predicated upon a substantial
claim of absolute immunity is collateral to the merits of the action and immediately
reviewable. See Mitchell v, Forsyth,
472 U.S. 511,525 (1985); Schrob v. Catterson,
948
F.2d 1402, 1407 n.4 (3d Cir. 1991); In re Montgomery County,
215 F.3d 367, 373 (3d Cir.
2000). Thus, the denial of Appellant’s motion for summary judgment on the basis of
absolute immunity is collateral to the merits of the action and is immediately reviewable.
Accordingly, this Court has jurisdiction over the interlocutory appeal regarding the claim
of absolute immunity.
B. Qualified Immunity Jurisdiction
The Supreme Court has also held that a District Court’s pretrial denial of a claim
for qualified immunity, to the extent that it turns on an issue of law, is an appealable
interlocutory order. Mitchell, 472 U.S. at 530; Burns v. County of Cambria,
971 F.2d
1015 (3d Cir. 1992). The Supreme Court stated that “[g]overnment officials performing
discretionary, non-prosecutorial functions are shielded from liability insofar as their
conduct does not violate clearly established Constitutional rights of which a reasonable
7
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An order
denying a motion for summary judgment made by a public official who claims to be
entitled to qualified immunity is appealable where there are no disputes of fact material to
the public official’s qualified immunity claim and the sole issue presented on appeal is
whether the official’s conduct violated a legal norm that was clearly established at the
time of the allegedly illegal conduct. Ziccardi v. City of Philadelphia,
288 F.3d 57, 61
(3d Cir. 2002); Chinchello v. Fenton,
805 F.2d 126, 127-132 (3d Cir. 1986).
Under Ziccardi and Harlow, this case is appealable if there are no disputes of fact
material to the public official’s qualified immunity claim and if the sole issue on appeal is
whether the facts identified by the District Judge establish that the official’s conduct
violated a clearly established legal norm that a reasonable person would have known.
The District Court stated that “Plaintiff’s evidence has shown sufficient personal
involvement in its closure with respect to all of the Defendants to preclude immunity on
its substantive due process claim” and “the only issue is whether the individual
Defendants would have reasonably been aware of the alleged violations.” Lonzetta
Trucking and Excavating Co. v. Schlan, et al., No. 3:02-18, (M.D. Pa. June 9, 2004).
Therefore, whether the official’s conduct violated a clearly established law, and whether
they knew of the violation is at issue.
However, this is not the sole issue. The District Court also stated that “[w]e agree
that material facts remain as to the conduct of all Defendants, and will adopt the
8
Magistrate Judge’s recommendation to deny their request for qualified immunity.”
Lonzetta Trucking and Excavating Co. v. Schlan, et al., No. 3:02-18, (M.D. Pa. June 9,
2004). Consequently, because there are disputes of fact material with respect to the
public official’s qualified immunity claim, the District Court’s denial of summary
judgment regarding qualified immunity is not appealable.
IV.
A. Absolute Immunity
Judicial immunity is extended to those performing “quasi judicial functions.” Bass
v. Attardi, 868 F.2d 45, 49-50 (3d Cir. 1989) (per curiam). We have stated that members
of a zoning board who are ruling on a zoning permit for a particular piece of property are
performing a quasi-judicial function. See Omnipoint Corp. v. Zoning Hearing Bd. of Pine
Grove Township,
181 F.3d 403, 409 (3d Cir. 1999) (citing Urbana v. Meneses,
431 A.2d
308, 311 (Pa. Super. 1981)). We have also held that zoning board members are entitled to
absolute immunity for claims in their individual capacities.
Bass, 868 F.2d at 50-51.2
Therefore, it follows that the zoning officials, including the supervisors of Hazle
Township, members of the Hazle Township Zoning Board, and the Zoning Officer of
2
Numerous lower courts have held or referred to zoning hearing boards as quasi-
judicial and their members as enjoying immunity from suit in their individual, but not official
capacities. See, e.g., Associates in Obstetrics & Gynecology v. Upper Merion Township, 270
F. Supp. 2d 633, 662 (E.D. Pa. 2003); Ryan v. Lower Merion Township,
205 F. Supp. 2d 434,
439 (E.D. Pa. 2002); Zapach v. Dismuke,
134 F. Supp. 2d 682, 696 (E.D. Pa. 2001); Urbano
v. Meneses,
431 A.2d 308, 311 (Super. Ct. 1981).
9
Hazle Township would be entitled to absolute immunity in their individual capacities if
they were performing “quasi-judicial” functions. However, the zoning officials in their
official capacities, the Hazle Township Zoning Board, and the Hazle Township are not
entitled to absolute immunity. The planning board as a governmental agency has no
immunity whatsoever.3
We now turn to whether absolute immunity should be extended to the Board
members in their individual capacities by looking at whether they were performing
“quasi-judicial” functions. To assess whether absolute immunity should be extended, the
courts use a functional approach that looks to the nature of the function performed, not
the identity of the actor who performed it. Stump v. Sparkman, 435 U.S. 349, 359 (1978);
Imbler v. Pachtman,
424 U.S. 409, 431 (1976). The Supreme Court has identified six
characteristics to assist in this inquiry: (1) the need to assure that the individual can
perform his functions without harassment and intimidation; (2) the presence of safeguards
that reduce the need for private damages actions as a means of controlling
unconstitutional conduct; (3) insulation from political influence; (4) the importance of
precedent; (5) the adversarial nature of the process; and (6) the correctibility of error on
appeal. Cleavinger v. Sayner,
476 U.S. 193, 202 (1985); Butz v. Economou,
438 U.S.
3
See
Id. (citing Owen v. City of Independence,
445 U.S. 622, 657 (1980) (no immunity
for municipality); Aitchison v. Raffiani,
708 F.2d 96, 100 (absolute immunity of individual
defendants does not preclude liability of municipality); Jodeco, Inc. v. Hann,
674 F. Supp.
488, 499 (D.N.J. 1987) (planning board in New Jersey has no immunity)).
10
506, 512 (1978).
The Board asserts that this six-factor test favors extending absolute immunity to
zoning board members. First, if zoning officials were subject to litigation every time they
made an unpopular decision, it would be very difficult to find citizens willing to serve on
zoning boards. Second, zoning board proceedings have substantial legal safeguards, and
therefore it is unnecessary to provide private damage actions. Third, since zoning
officials are appointed, they are arguably shielded from direct political influence. Fourth,
Pennsylvania law contains substantial amounts of precedence governing zoning. Fifth,
hearings before the zoning board are adversarial in nature. Last, erroneous decisions can
be corrected on appeal.
We conclude that the District Court was correct in denying the Defendants’
Motion for Summary Judgment regarding the defense of absolute immunity for the claims
brought against the zoning board members, supervisors, and officer in their official
capacities, and against the zoning hearing board and the township. The District Court
erred, however, by concluding that the zoning officials in their individual capacities are
not entitled to absolute immunity. Therefore, we will reverse. On remand, the District
Court must determine whether the zoning officials were actually performing quasi-
judicial functions. If the District Court concludes that all the alleged improper conduct
falls outside a quasi-judicial function, then these zoning officials are immune from suit.
If, however, the District Court finds that there is some conduct that falls outside this
11
function, then the zoning officials should proceed to trial as to that conduct.
B. Substantive Due Process Claim
To prevail on substantive due process claim under § 1983, a plaintiff must
establish as a threshold matter that he has a protected property interest to which the
Fourteenth Amendment’s due process protection applies. See Woodwind Estates Ltd. v.
W.J. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000) (overruled on other grounds by
United Artists Theatre Circuit, Inc. v. Township of Warrington,
316 F.3d 392, 399-400
(3d Cir. 2003)). To prove a violation of substantive due process in cases involving
executive action, the plaintiff must show that the state acted in a manner that “shocks the
conscience.”
Schieber, 320 F.3d at 417.
“Only the most egregious official conduct ‘shocks the conscience.’” Eichenlaub,
385 F.3d at 285 (citing United Artist Theatre Circuit, Inc.,
316 F.3d 399 (quoting County
of Sacramento v. Lewis,
523 U.S. 833, 846 (1998))). A land use substantive due process
claim must implicate more than just disagreement about conventional zoning or planning
rules in order to pass the “shock the conscience” test. We have stated that:
every appeal by a disappointed developer from an adverse ruling of the
local planning board involves some claim of abuse of legal authority, but it
is not enough simply to give these state law claims constitutional labels
such as due process or equal protection in order to raise a substantial federal
question under section 1983.
Id. at 286 (citing United
Artists, 316 F.3d at 402 (quoting Creative Env’ts, Inc. v.
Estabrook,
680 F.2d 822, 833 (1st Cir. 1982) (internal citations omitted))).
12
The Board agrees that Lonzetta has a protected property interest in its mining
operation. The Board, however, contends that their actions do not meet the “shock the
conscience” test, as the issuance of the cease and desist order was reasonable under the
circumstances. The Board claims that there is ample evidence in the record that changes
made to the quarry by Lonzetta constituted a new use requiring a new zoning permit.
The Magistrate Judge found, and the District Court agreed, that genuine issues of
material fact exist regarding the Board’s actions in regulating Lonzetta’s quarry. Further,
the Magistrate Judge found that a dispute still remains as to whether the Board acted out
of a belief that they could regulate the quarry under its Ordinances and whether Lonzetta
was in violation of the 1996 Ordinance or whether the Board was arbitrarily trying to
close the quarry. The District Court found that since there remains substantial
disagreement between the parties on this issue, an award of summary judgment to either
party is inappropriate. We agree that there are remaining fact issues.
In summary, because there are remaining disputed issues of material fact, the
District Court properly denied the Board’s Motion for Summary Judgment on Lonzetta’s
substantive due process claim.
V.
We do not have jurisdiction regarding the question of qualified immunity because
there are remaining disputes of fact material.
We will affirm the District Court’s denial of the Board’s motion for summary
13
judgment regarding the defense of absolute immunity with respect to the claims in their
official capacities and against the zoning hearing board and the township. However, we
will reverse and remand to the District Court for a determination as to whether the zoning
officials actually performing quasi-judicial functions, and whether they are immune from
suit in their individual capacities.
We will affirm the District Court’s denial of the Board’s Motion for Summary
Judgment on Lonzetta’s substantive due process claim because there are material facts in
dispute.
14
