                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                              NOT PRECEDENTIAL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
