Pennsylvania Gaming Control Board v. City Council of Philadelphia

928A.2d 1255 The GAMING CONTROL PENNSYLVANIA

BOARD, Petitioner, v. PHILADELPHIA; Rafferty,

CITY OF in Her COUNCIL Patricia Capacity City Philadelphia; Chief Clerk of Phila as Council delphia County Elections; Board of and The Nelson Honorable Diaz, Jaffe, Gene The Honorable Paul and The Honorable Acting City Commissioners, Capacity Cohen, in Their Official Philadelphia Elections, Respondents, County as the Board of Partners, Development Entertainment Philadelphia,

L.P. Foxwood Casino HSP d/b/a/ Gaming, L.P., Intervenors. Pennsylvania Petitioner, Board,

The Control

v. City Philadelphia; Rafferty, Capacity Council of Patricia in Her Philadelphia; Philadelphia

as Chief Clerk Council of County Elections; Diaz, Board of and The Honorable Nelson Jaffe, Cohen, The Honorable Paul Honorable Gene Acting City Commissioners, Capacity in Their Official County Elections, Respondents. Board of

Supreme Pennsylvania. Court of April

Submitted 2007. Aug.

Decided 2007. P.C., Geren, Phila- Lorry, Freedman & Esq., Lance Michael Asso- Longshoremen’s curiae International delphia, for amicus ciation, et al. Jeffrey Fikry, Esq., Eric Limburg, Esq.,

Richard P. G. Schrier, Anne Rotwitt, Esq., David Sarah Esq., Stephen Brent Hippel, & Esq., Obermayer Rebmann Maxwell Shapiro, De- L.L.P., Entertainment and Philadelphia, Partners, L.P. velopment Cozen, F. Esq., A. McHugh, Esq., Stephen M.

Jennifer O’Connor, Lamb, H. William Jacoby, Esq., Warren Cozen P.C., Withers, McErlane, Lamb Rich- Esq., Russel Esq., Scot Thomas A. Hardy, Esq., A. J. Sprague, Esq., ard Charles Levine, Donnelly, M. Sprague, & John Sprague, Esq., Sprague vice, Chan, P.A., Staller, Sklar, Donnelly, pro hac Brown & Philadelphia, Gaming, for HSP L.P. Corbett, Esq., for Commonwealth Harrisburg,

Thomas W. Pennsylvania. Sherman, Donaghue, T. Douglas Esq., Richard Francis Board, Waksman, PA Esq., Esq., Control S. Gaming Jeffrey Fickler, Linda T. Esq., Lloyd, Esq., Arlene S. Lawrence Jr., Mathes, L.L.P., Hoyle, Fickler & Esq., Hoyle, Herschel Harrisburg, Gaming for PA Control Board. Mitts, Milavec, L.L.C., Esq.,

Maurice Robert Mitts Philadel- for phia, City Philadelphia, Council of et al. Diaz,

Romulo Jr. Esq., Liberio Philadelphia Law Department, City Philadelphia of Elections. Esq.,

Jennifer M. F. McHugh, Jacoby, Esq., Warren Ste- Cozen, O’Connor, Lamb, A. phen Esq., H. Esq., Cozen William Withers, McErlane, P.C., Esq., Russel Lamb Scot Richard A. Sprague, Esq., Hardy, J. A. Esq., Sprague, Charles Thomas Esq., Levine, Staller, Sprague Sprague, Donnelly, & John M. Sklar, Chan, vice, Donnelly, & P.A. hac pro Brown Philadel- HSP phia, amicus curiae L.P.

Richard Esq., P. Eric Limburg, Fikry, Esq., Jeffrey G. Rotwitt, Esq., Stephen Schrier, Brent Esq., David Sarah Anne Shapiro, Obermayer Esq., Rebmann Maxwell & Hippel, L.L.P., Coran, Weiner, Michael Kenneth Esq., Aaron Glenn Klehr, Harrison, Ellers, Esq., Harvey, L.L.P., & Branzburg, Philadelphia, for amicus curiae Entertainment Philadelphia Development Partners Philadelphia. Foxwoods Casino d/b/a Watson,

Brian L. Esq., Meyers, Esq., Howard L. Marc J. Sonnenfeld, Bockius, L.L.P., Esq., Morgan Lewis & Philadel- lor phia, amicus curiae Greater Chamber of Commerce; Bureau; Philadelphia Convention & Visitors Great- er Hotel Association. Jr., Corbett,

Thomas W. PA Esq., Attorney Office of Gener- al, Harrisburg, for Commonwealth of Pennsylvania. C.J., CAPPY, CASTILLE, SAYLOR,

BEFORE: EAKIN, BAER, FITZGERALD, BALDWIN and JJ.

OPINION CAPPY, C.J. 20, 2006, the Race Horse Pennsylvania under

On December “Act”), Act” or Act Gaming (“Gaming and Development seq., § 1101 et Pennsylvania the Gam- petitioner, the Pa.C.S. (“Board”), machine two slot licenses ing approved Board (“HSP”) Intervenors, Philadelphia L.P. and Gaming, HSP (“Philadel- L.P., Partners, Development and Entertainment Entertainment”) (“Philadel- of City Philadelphia in the phia decision, Board As that “City”). part approved of phia” or facilities and Philadel- of the that HSP location licensed respectively to establish. On phia proposed Entertainment Philadelphia (“City of Coun- City March Council (the “Ordinance”) cil”) that submits enacted an ordinance electors, asking Philadelphia’s qualified ballot to question be Home Rule Charter should Philadelphia them whether City’s and the prohibit City Department to Council amended that from certain actions Inspections taking of Licenses and designated areas of gaming the use of within permit would above-captioned petitions against City. The Board filed Council, as the City Rafferty, capacity Patricia her official Council, County Board of City Philadelphia Chief Clerk in their Elections, Acting County and certain Commissioners capacity official members per- to (collectively, “Respondents”), seeking Elections

County to question them the ballot enjoin submitting from manently day. on election We conclude Philadelphia electorate Act because it allows contrary Ordinance nullify the decision the Board the electorate consider in Philadelphia made the location of licensed facilities as to City’s and the Licenses Department and direct Council those local laws disregard Inspections Accordingly, hold implemented. decision is we Board’s seeks, relief it Board is entitled clearly enjoined permanently plac- order are Respondents ing the ballot. question

I set forth in the Board’s following material facts as and Briefs and the Briefs HSP and Petitions for Review July are not disputed. Entertainment Act, a statute of Assembly enacted General at a provides gaming concern that for slot machine statewide 4 facilities the Commonwealth. set number of licensed within Board, gives § Act and Pa.C.S. 1102. The established of regulatory authority and sole over conduct “general 4 part.” or as described in this gaming related activities 1202(a)(1). 1201(a), §§ The Act defines the “[c]onduct Pa.C.S. of gaming” placement operation of as licensed and “[t]he games part approved by of chance under this and the [Board] at a licensed and facilityf,]” facility” “[licensed “[t]he physical gaming entity land-based location at a licensed is authorized to and 4 place operate slot machines.” Pa.C.S. § 1103. specifically The Board is and empowered obligated issue, renew, revoke, under the Act “to approve, suspend, condition or deny issuance or renewal of slot machine [the] licenses[,]” 1202(b)(12). 4 § at its discretion. Pa.C.S. The Act instructs the Board that the “location quality and of the proposed facility” may is a factor that it take into account considering application when an for a slot machine 4 license. 1325(c)(1). § Pa.C.S.

The Act provides licenses, for three of slot types machine designated § 4 by category. Pa.C.S. 1301. Each category license, an permits entity person apply to the Board for a issuance, upon and authorizes the placement operation and of Act, slot machines at a licensed Id. facility. Under the Category license authorizes the and placement operation of tracks; slot machines at existing racing Category horse license authorizes the placement operation and slot ma- chines in stand-alone facilities in cities of the first or second locations; class or other tourism Category and a 3 license authorizes the placement operation and slot machines in §§ resort hotels. 4 1302-1305. The Act Pa.C.S. states that “shall be located 2 licensed facilities Category two 1304(b).1 of the class.” city within a first Pa.C.S. [B]oard Board had received several As December and HSP applications Category Philadelphia. licenses Philadelphia among applicants. Entertainment were respec- and Philadelphia that HSP Entertainment applications facility tively gaming submitted identified and described the City. The conducted each intended to establish in the on the licensing hearings and public input hearings public of 2006. April November applications adding In March of enacted Ordinance Chapter part 14-400 to that Code “to planning. Chapter 14-400 is intended governs zoning major entertainment encourage orderly development facilities,” framework for the estab- provides regulatory (“CEDs”) lishment of Entertainment “Commercial District[s]” 7) (Exhibits Petitions Philadelphia. to the for Review 14-400, by a City designates Under Council CED Chapter City. desig- in appropriate Upon ordinance areas of CED nation, all are underlying zoning superseded, classifications in of may plan and the owner of a lot the CED submit development City’s Planning plan Commission. The in set forth compliance regulations reviewed for with boundaries, 14-400, uses, Chapter permitted which cover and height, signs, loading, design. off-street off-street parking, Council, by Depart- of the Upon approval plan City City’s ment of and is authorized to issue the Inspections Licenses necessary and As to facili- building zoning permits. gaming ties, of 14-400 Chapter provides Section 14-405 “[n]oth- in of right Pennsylvania shall limit the ing Chapter [Gaming] identify Control Board under the Act to facility 2 property permit Category will licensed in this shall be City[,]” “[n]othing Chapter within construed to that is prohibit exclusively regulated use 1. 1951, Philadelphia adopted city Philadelphia In is a of first class. City rule the First Home Rule a home charter under the terms of Class Act, §§ 53 P.S. 13101-13157.

249 [Gaming] under the Act.” permitted Commonwealth (Exhibits 8). to Petitions for Review at 2006, 20, public

On December the Board meeting held on all pending vote for and licenses. applications Category approved Category The Board Philadelphia, two licenses part for HSP and Entertainment. As of this Philadelphia decision, the of the approved Board the locations facilities and Philadelphia respectively proposed. HSP Entertainment the Adjudication of the Pennsylvania Gaming Hearing the Matters of the Applications Category for Slot Class, Machine in the City Philadelphia Licenses First issued, the Board the Board observed that location of proposed City HSP’s site is an area of the zoned for uses compatible analogous with or that the gaming, and location Philadelphia proposed fully Entertainment’s site is compli- ant with the of a requirements CED district. The Board also took note of the adopted ordinances that for the Philadelphia creation of gaming permitted, CEDs where facilities are anticipated process that the outlined in Philadelphia Code creating for them move would forward.2 14, 2007, On or February about Casino-Free Philadelphia, Inc., a community group, circulated a petition seeking to amend the Home prohibit Rule City Charter Council and the Department Inspections Licenses and taking certain actions would use of permit the gaming designated City. within areas See P.S. 13106. On February a member of Council City introduced Ordinance, Bill No. the precursor of the “[providing qualified submission to the electors Philadelphia of a proposed amendment date, process Chapter To Philadelphia set forth in of 14-400 2. forward, despite requests has not Code moved HSP and from Philadel- phia implementation. Entertainment for its observe We that in this regard, Philadelphia proceedings Entertainment has commenced Court at Docket EM proceedings, Philadelphia No. 88 2007. In these challenges passed by City May Entertainment a bill on Council zoning City’s maps changes designation amends the solely and Philadelphia property C-3 Entertainment’s from Commercial to Department City's R-10A Residential refusal of and the of Licenses Inspections zoning registration permit. and to issue and use of relating gaming Rule to the location licensed Home Charter City, by petition presented as proposed facilities 'within by for submission the electors approved to Council and ” (Exhibits in of for Review Support Petitions Resolution.... 2). introduced day, City That a member of Council same forth the amend- proposed Resolution No. which set II, Article The amendment would amend proposed ment. V, Home 10 of the Chapter 3 and Article Chapter action City taking any from prohibit Rule Charter to Council in certain gaming or permit to create district otherwise and and of Licenses Department areas of unless issuing permits gaming licenses or Inspections is located in certain authorized areas. applicant amendment reads: proposed II, Chapter 3]

[Article

* * * (2) licensed facilities cause a deleterious gaming Because of effect on the aesthetics and economics the areas which they areas in are they are located and cause the behavior, located to become a focus of crime and anti-social communities in order to deterioration prevent City Philadelphia, provide in the neighborhoods City, orderly, development for the future of the planned bill, any approve any shall not enact creation Council district, nor action of Licensed any permitting take use Gaming and authorized [the Act] defined' Pennsylvania other Amendments to Title any or any Statutes area district of Consolidated Philadelphia:

(a) of any residentially 1500 feet zoned district Within therein), Institution- (regardless of the actual uses contained residentially or Development following al District related uses:

(i) convents, Churches, monasteries, chapels, synagogues, rectories, stores, stores, religious religious apparel article homes, apartment legally occupied dwellings residential Center; buildings, or Convention/Civic

251 (ii) Schools, (12th) to and up including grade, twelfth areas; and their adjunct play

(iii) playgrounds, Public public swimming pools, public parks public and libraries.

(3) This shall effect upon approval by amendment take voters and shall render null enact- any previous and void ment, or action approval City taken in conflict with this amendment. V, Chapter

[Article 10]

[*] ^[*] sjs (2) The Department of Inspections Licenses and shall not issue any permit license authorizing Gaming as Licensed defined in Gaming and other [the Act] Amendments to Title 4 of Pennsylvania Consolidated unless the Statutes applicant is located within an area or district authorized for II, 2-307(2)(a) Licensed under Article Section of this Charter.

(Exhibits 3). to the Petitions for Review 2, 2007,

On March City Council’s Committee on Law and Government a public hearing held and testimony received from those in against favor and those Bill No. 070112 and Resolution No. 070113. HSP Philadelphia Entertainment appeared and testified in opposition to both. Committee approved the Bill and the Resolution.

On March City adopted Council No. Resolution 070113 by unanimous vote.3 provided The Resolution for the submission of the following question to the Philadelphia electorate, to be answered “Yes” or “No”: petition 3. A § was filed under 53 P.S. the Court Common County, objecting Pleas of sufficiency of Casino- petition Philadelphia's validity Free signatures. and the of its Ultimate- ly, the petition genuine court determined that the lacked the number signatures registered required, granted electors that P.S. objectors’ petition Philadelphia's petition declared Casino-Free Accordingly, null proceeded and void. Council under P.S. § 13106. amended to Home Rule Charter be

Shall action taking any permit that would prohibit Council residentially zoned within 1500 feet of gaming licensed District, district, or certain Development an Institutional uses, Department residentially-related prohibit or issuing any license Inspections permit Licenses and such areas? authorizing gaming licensed within 2). (Exhibits addition, City to Petitions for Review passed Bill No. 070112. unanimously Council Mayor Philadelphia, to the of Bill No. 070112 was sent 29, dated 2007 to By F. Street. letter March Honorable John letter, the Council, the Bill. In his Mayor the vetoed City veto, to his that: urged City stating Council sustain Mayor hospitality to gaming growth Philadelphia’s crucial the center; job support will gaming unprecedented and convention substantial revenue for City; gaming creation the will raise interests; and City; to local City working protect development control over the City losing that the risks local sites, Home be Rule Charter gaming Philadelphia should amended as proposed. 2007, 29, Bill No. Council reconsidered City

On March Therefore, 070112, Mayor’s and veto. voted override law, and an Ordinance of Philadel- Bill No. 070112 became the City’s amendment phia, proposed ordained be question Rule and the above-stated submit- Home Charter § See to the electorate. 351 Pa.Code 2.2-202. Philadelphia ted 2007, 30, an City On March the' Council certified Clerk amendment copy proposed exact of the text of Charter, question Philadelphia together Home Rule with ballot, Margaret City Tartaglione. for the Commissioner 13109, occurs, the Philadel- When certification under 53 P.S. County obligated ques- of Elections is to cause a phia Board tion to be on the ballot. printed that the amendment Ordinance submits proposed

Under electorate, cannot be licensed facilities Philadelphia City approved, located on the sites that the Board Council designate Chapter these as CEDs under 14-400 cannot sites Code, Li- Department and the City’s issue the that would Inspection permits censes and cannot into develop gaming needed to the sites facilities. 5, 2007, No. 55 filed April

On at Docket EM Concerning an Petition Emergency for Review Ordinance City City Passed Council for the on March (“Petition I”), and an for Emergency Application 1532(a). Special Pursuant to Pa.R.A.P. At Emergency Relief an Emergency Docket No. EM Board filed Process, for File an Application Original Emergency Leave to Judg- Petition in the a Complaint Declaratory Nature of for (“Petition II”), ment Application for a Emergency 1531(a). Injunction Preliminary Pursuant Re- Pa.R.Civ.P. spondents responses filed filings. answers to Board’s Rafferty (collectively, “City Council Patricia Respondents”) Council an Application filed Re- Summary II, lief as to Petition I Petition challenging the Board’s jurisdiction invocation of this Court’s under the Act Gaming and the Board’s to seek Philadel- standing relief. HSP and phia permitted Entertainment were to intervene at Docket No. 55 EM 2007. 13, 2007,

By Order dated the April granted this Court Application Process, Board’s for Leave to Original File grant- injunction ed the Board’s request enjoining preliminary Respondents question from the ballot in placing upcom- ing election and the parties directed to submit these matters on briefs.4 by: Philadelphia

4. Amici Curiae been briefs have filed The Greater Commerce, Chamber Convention & Visitors Bu- reau, Association; Society and Greater Hotel and the Association, Riverfront, Neighbors Hill Civic Allied for the Best Bella Association, Schimmel, Hilary Regan, Vista United Civic Bruce John Queen Dietel, O'Neill, Palamountain, Bromley Village Neigh- Kathleen Association, Inc., Association, Council, Pennsport Civic bors Whitman Neuwirth, deVecchis, Seiple, Paul Rita Gaudet Barbara Kathleen Grann, Heiko, Dicker, Thompson-Heiko, Jethro Chelsea Anne Edmund Association, Reinhart, Neighbors Goppelt, Mary Northern Liberties Rizzetto, Longshoremen’s Diane The International Association District Philadelphia/Wilmington, Council of AFL-CIO. 254 I,

These matters are now for decision. In Petition ready 4 jurisdiction this under Board invokes Court’s Pa.C.S. 1506, § and asserts that procedurally Ordinance defective, therefore, II, substantively invalid. Petition 4 jurisdiction the Board invokes this Court’s under Pa.C.S. ruling constitutionality § and seeks a on the of its to taken powers Gaming under the Act relative the actions Petitions, the that a requests In both Respondents. injunction enjoining be entered permanent Respondents relief, on the ballot. To obtain this placing question right that it a clear relief. Board must establish has to Buffalo (2002). Jones, v. 571 Pa. 813 663 Township A.2d II I, and the threshold begin We with Petition address raised. first assert that City Respondents issues Council provide § 1506 of the Act does not this Court with jurisdiction City the Ordinance. The Council Re review § this spondents gives jurisdiction contend that 1506 Court order, “final appeals consider of a determination or decision.” these, 12. p. See Since Ordinance none of infra jurisdic Respondent argue Council that this Court is without § tion under the merits of Petition I. The consider grants § Board and Intervenors counter jurisdiction variety Court exclusive review wide facilities, involving including local actions licensed ordinances city that a decides to enact. jurisdiction § gives

Whether Court review I of statutory Ordinance under Petition is a construc- question Therefore, tion. Construction Act of 1972 Statutory (“SCA”) SCA, et seq. controls. Pa.C.S. Under object is fundamental of all interpretation “[t]he construction statutes to ascertain and effectuate the [ejvery and that Assembly[,] intention General statute construed, if to all its possible, give provi- shall be effect 1921(a). § 1 In this in- regard, sions.” Pa.C.S. SCA “[wjhen of a are clear and free structs words statute ambiguity, from all the letter of it is to be disregarded

255 1921(b). pretext § under the 1 pursuing spirit.” Pa.C.S. When, however, the words the statute are not explicit, Assembly’s General intent is to be ascertained considering 1921(c). matters other than 1 statutory language. § Pa.C.S. provides SCA phrases “[w]ords and shall be con strued according to the rules of grammar and according their 1903(a). common and approved usage[.]” § 1 If Pa.C.S. statute, General Assembly defines words that are used in a Kimmel, those definitions binding. are Commonwealth v. 523 (1989). Pa. SCA, A.2d Under a court may presume that the Assembly General does not intend absurd, result that impossible unreasonable; of execution or does not intend to violate Constitution of the United States or that of Pennsylvania; and intends the entire statute to be 1922(1)-(3). certain and § effective. Pa.C.S.

Based on these § turn to principles, we 1506’s language. Section 1506 states:

§ 1506. Licensed facility zoning and land use appeals In order to facilitate timely implementation gam- of casino ing as provided in this part, notwithstanding Pa.C.S. 933(a)(2) § (relating to appeals from government agencies), the Supreme Court of Pennsylvania is vested with exclusive appellate jurisdiction order, to consider appeals of a final determination or decision of a political subdivision or local instrumentality involving zoning, usage, layout, construction or occupancy, location, size, including bulk and use of a court, licensed facility. The as appropriate, may appoint a master to hear an appeal under this section. § Pa.C.S. 1506.

Initially, § 1506 provides this Court with two instructions. In statute, interpreting the we are to remain mindful that § 1506 aims “to facilitate timely implementation of casino 933(a)(2) gaming,” and that 42 § Pa.C.S. of the Judicial Code5 933(a)(2), § gives 5. pleas the Judicial Code the court of common " jurisdiction ‘[ajppeals government hear agen- final orders of except ... agencies' cies Subchapter Chap- Commonwealth under B of action) (relating judicial ter 7 of Title 2 agency review of local 933(a)(2). otherwise." 42 Pa.C.S. Subchapter Chapter B 7 of 256 in context. 4 Pa.C.S. significance

is set aside and has no Co., 1506; § Public Auditori see Pleasant Hills Const. Inc. v. (conclud (2001) 1277, 1283 Authority, um Pa. 784 A.2d 567 clear, “notwithstanding” “regard is means ing that a clause less,” subject mentioned favor explicitly preempts follows). subject that jurisdiction it vests in this

Section 1506 then describes the jurisdiction is “appellate” Court. Our “exclusive” and order, us of a final determina- appeals authorizes “to consider or local instrumentali- political tion or decision of a subdivision ... 4 ty facility.” location of a licensed Pa.C.S. involving [the] “[a]ny § defines a as “political 1506. SCA subdivision” town, county, city, borough, township, school incorporated district, dis- county vocational school institution district dictionary a § trict.” 1 Pa.C.S. 1991. The defines “determi- as “the to a decision or of or coming fixing nation” act a act or settling purpose[,]” process a and “decision” “the determination, doubt, by making as of a or question deciding; mind[;] a or one’s judgment^] making up the act need for decided; House something is resolution.” The Random (2nd ed.1987). 517, 541 Dictionary English Language Last, may § 1506 us that the Court a appoint advises necessary proper master when is deemed disposition the statute us consider. appeals empowers view, explicit vesting § In our 1506 is clear and jurisdiction terms, § I. By Court with over Petition its 1506 may taken local appeal creates actions to, alia, inter of a political amount determination decision the location of facilities. More- involving subdivision licensed over, places § 1506 the resolution of the created exclu- appeal in this Court. sively

Here, particular challenge local action under City by Ordinance. The enacted in order Ordinance was consider ballot give opportunity electorate 551-555, Law, Agency §§ Title Local Pa.C.S. 751-754. Law, Agency Under the Local local administrative actions that consti- subject adjudications pleas in the tute are to review court common 752; 933(a)(2). § § § under 101. See Pa.C.S. Pa.C.S. with licensed question having to do where facilities on the may plain be located. Based words in 1506 and their that the meaning, we conclude Ordinance is a determination or alia, involving, decision made inter political subdivision Hence, the location of licensed facilities. also we conclude subject that the of Petition I falls within the local squarely appeal by § matters the created conclu- captures. Our 1506 sion, § 1506 to for this interprets provide Court’s immediate questions and conclusive consideration of the raised Ordinance, regarding the adheres to the and effectuates Gen- Assembly’s expressly § eral stated aim in 1506 to facilitate the timely of implementation gaming into the Id. Commonwealth. addition, it is consistent presumption with the that the not Assembly General does intend an result in its absurd § statutes. See 1 make no Pa.C.S. It sense would 1922(1). for us to at the conclude that same time General Assembly the this Court the to gave original jurisdiction exclusive hear declaratory judgments concerning constitutionality the of the Act, § Gaming see Pa.C.S. appellate and the exclusive 1904, 4 jurisdiction appeals to Board’s approval, consider the issuance, license, denial conditioning or of a slot machine see 4 § Pa.C.S. it not to Court opted vest with the 1204, exclusive authority impacts to review ordinance that on an as issue fundamental as actual of the facili- establishment ties which licensed take gaming place. will hold that Accordingly, § we under this Court has 1506, jurisdiction Petition I.6 over Although statutory

6. we have concluded that as a matter of construction I, § jurisdiction 1506 vests this Court with Petition we over would failing clearly remiss in that this to note matter also merits the invoca- ("The King's powers. tion of Supreme our Bench 502 Pa.C.S. powers Court shall have and exercise the it vested in the Constitution Pennsylvania, including power justice of generally minister to to all persons court, powers fully amply, and to exercise the of the to Bench, all purposes, justices King's intents and as the Court Westminster, them, Exchequer, Common Pleas and or could 22, 1722.”); 385, Avellino, might or May do on In re Pa. A.2d (1997). 1140-41 Act, widespread Petition I concerns tire that has statute importance, generated generate has one that to continues public substantial They attention. The issues raised are foundational.

Ill Mt. v. Board Elections Relying County on Lebanon Pa. 368 A.2d Allegheny, County of 649-50 that because City Respondents argue Council also (1977), yet opportunity electorate has had Philadelphia consider, it that the Ordinance enables question vote advisory merely because opinion Court’s would process complete. They urge be rendered before the would hand, legality our and consider the Ordinance stay us if and when the amendment approve proposed voters disagree. Home Rule Charter. We miss is Respondents fundamental that the Council point argue that the and the Intervenors the General authority has the Board sole. to locate Assembly given give licensed facilities and does did not to consider or that decision City’s right electorate override of that decision under the prevent implementation words, the for the City’s pending opportunity In other laws. question matter via is as upon voters to the ballot pass and much concern the Board the Intervenors as is Thus, vote, it take place. present outcome of the should our Rather, nor it address opinion is neither theoretical abstract. on face and the it has legality es of Ordinance effect already-to had submit a electorate question and to locate impacts nullify that could Board’s decision and of that process putting licensed facilities Drainage Authority decision in See Deer Creek Basin place. Pa. Allegheny v. Elections County County, 475 of authority imple- parameters Board's relate to the of the make and gaming as ment its on as an issue the location of facilities decision basic interplay authority regard Board’s in this and that and between the enacted, recently Act is no of local authorities. Because the so there is body guide issues. Moreover and case law the resolution of these questions significantly, the are raised within the context of the election may process, question whether a and concern the fundamental issue of lawfully placed All of on the ballot for electorate consider. profound importance, prompt and deserve these matters are circumstances, judicial that conclusive review. Under is obvious powers King's Bench the invocation of our is also means ability judiciary's justly we to decide these insure the matters expeditiously. Id.

259 491, (1977) steps 381 A.2d be taken to (directing 103 all question ensure that a invalid and referendum was would not legal presented have no effect on the ballot so as to is unjustified expendi- avoid voter confusion and the unnecessary election, on an public' inoperative ture resources and to all parties). the interests of protect

IV Respondents assert that City Council also Board, agency, administrative pecuniary without thus, other real stake in does not controversy, have standing. It is that a party standing, true who does have is, a party is unable to that he has who show been he “aggrieved” by challenge, may the matter seeks to not seek Park, judicial Pittsburgh relief. v. Palisades LLC Common wealth, 655, (2005). 585 Pa. A.2d A party substantial, if he aggrieved can demonstrate that he has a direct, and immediate interest outcome litigation. Id. This Court has that: explained

A “substantial” is an interest interest in the outcome of the litigation which the common surpasses interest all citizens procuring to the A obedience law. “direct” interest requires showing complained that the matter of caused harm to the party’s interest. An “immediate” interest involves the na- ture of the causal connection complained between the action of and the injury party it. challenging Hickson, re (2003) Pa. A.2d (citations omitted). principles,

Mindful of these we observe that the Board asserts that the of submission the amendment proposed electorate, possible made through passage Ordinance, effectively allows the Philadelphia electorate to pass negate and the decision it December made on This, to locate licensed facilities Philadelphia. the Board argues, thwarts of duty the exercise its statutory authori Act, under ty gives it Gaming standing. diminishes that the Ordinance agree. asserting

We statutory satisfy duty Act its authority it under the to given class, the first the Board facilities in cites of to locate licensed substantial, direct, interest in the and immediate exhibits a regard, of In this we aggrieved. these matters and outcome clearly exceeds litigation that Board’s interest note obedi procuring “the of all citizens that of common interest Board, public, law,” general unlike the to because the ence gaming the issuance of statutory obligation approve to has licenses, approve to the location obligation which includes the facilities. Pa.C.S. gaming Hickson, 1202(b)(12);1304(b)(1),1325(c)(1); 821 A.2d §§ Moreover, it is that the harms indisputable 1243. Ordinance has in that it allows the the interests the Board asserts it to override the decision opportunity voters the as to facilities be located made licensed will where process putting place. in the and the decision is a clear and immediate causal Finally, we observe that there to ability connection between the Board’s Ordinance statutory authority Gaming gives Act it and exercise the it to obligations Gaming places upon fulfill the Act locate Thus, licensed facilities. id. we conclude Philadelphia’s See standing to pursue Board is with aggrieved, v. Dauphin County matter. See Public Defender’s Office Pa. Dauphin County, Common Court Pleas (2004) Public Defend (concluding A.2d 1148-49 had an administrative order that standing challenge er ability satisfy statutory obligation its impacted on legal representation financially eligible criminal provide of its make stripped defendants and it discretion to decisions services). for its regarding applicant’s eligibility V I, merits of Petition Turning validity grounds. the Ordinance is on several These challenged include the that the Ordinance is invalid grounds assertion amounts to because is inconsistent with Act and

261 it power by City an exercise of does have.7 the Board and the that in the regard, Intervenors contend Act, Assembly the General the Board the sole gave authority locate licensed facilities which slot machines 2 may placed operated Category when it issues a Therefore, gaming Philadelphia. license the Ordinance is Philadelphia invalid because allows electorate consid- er the Board’s decision as the location of licensed facilities chooses, it if nullify so made.8 decision jurisdiction I, Like the of question parame- over Petition authority ters Board’s to locate licensed facilities in question is a of statutory construction under 1304(b)(1) point. SCA. Sections and Section 1307 are on Sec- 1304(b)(1) tion provides: Category

§ 1304. 2 slot machine license

[*] 4' ^[*] (b) Location.—

(1) 2 Two licensed Category facilities and no more shall be class, located board by the within a city and one of first Category 2 facility licensed and no more shall by be located a city the board within of the second class. No 2 Category licensed facility by located city board within a of class shall be ten within linear miles of a 1 Category first facility licensed regardless of the municipality where the Category 1 facility licensed Except located. for any Category facility 2 licensed by located the board within a city class, class or a city of second no of first 2 Category facility licensed shall be located 30 within linear miles of any Category facility licensed that has conducted 200 racing days over per year for the calendar years two question concerning validity 7. The pure we address the Ordinance’s is a question questions We law. consider of law de novo. Respondents note, however, 8. did not brief this issue. We do Respondents Philadelphia County Board of Elections and Members state that continue position "[w]e to hold to the ... same that the change, adopted, nullity Charter if would be a as it conflicts with State (Brief law....” County Board of Elections and the 1.) Members of the Board of Capacity p. Elections in their Official and not part the effective date

immediately preceding 1 licensed any Category other 20 linear miles of within Category licensed located facility facility. Except class, Category no a city the board within first located linear miles facility licensed shall be within 2 Category facility. licensed another added). 1304(b)(1) 1307 pro- § 4 Section (emphasis Pa.C.S. vides: machines.

§ 1307. Number slot 1 Category no more than may The board license seven 2 and more than five licensed Category facilities no licensed two, facilities, as as may long appropriate, deem more, the board by 2 licenses are located Category not more, one, that class and city within first facility by 2 licensed is located the board within Category city the second class.... added). § 4 (emphasis 1307 Pa.C.S. statutory provisions of these conclude that the

We words Assembly and reveal that General explicit are clear and authority to locate for the Board to have the sole intended 2 of the class. That licensed facilities cities first Category to locate a the Board makes decision say, only 1304(b)(1) without repeatedly Section states facility. licensed 2 be lo- licensed equivocation “Category facilities[ ]shall class,” of the first and both by the in cities cated [B]oard 1304(b)(1) refer to 2 licenses” or “Category Section and 1307 2 facilities” that have been “located “Category licensed 1304(b)(1),1307. §§ 4 We further observe Pa.C.S. [B]oard.” has not afford- Assembly in these the General provisions, consider, of a class city right ed the electorate first decision it is made. the Board’s location once affect override however, not, sole authority does exercise its The Board Act fix of licensed facilities Gaming the site under in a the General vacuum. This because within See Assembly given Philadelphia power has zone.. Commonwealth, v. Ogontz Services Department General (1984) Ass’n, 448, 614, 451 Pa. 483 A.2d Neighbors Area 505 as home rule Philadelphia, city, derives (recognizing zoning regula- itself and to enact power generally govern Act, § Home Rule but that to the tions P.S. Act, Zoning Enabling extent that P.S. provisions Philadelphia’s zoning regu- § are not inconsistent with force.) lations, Thus, only remain in the Board and they while li- Philadelphia’s the Board is authorized to decide where placed, question censed facilities will be as to whether intended the to locate to Assembly authority General Board’s to zone any regard City’s authority be exercised without remains. id. See interplay zoning

We have confronted the between local regulations Pennsyl- land use and the Act before. Against Gambling Expansion vanians Fund v. Common- (“PAGE”), (2005), wealth addressed the A.2d we constitutionality of former as originally enacted expressly local land preempted zoning use and ordinances “as ... gaming conduct including physical [to the] location of any facility! licensed the extent that the facility ]to licensed approved by been in petitioners [had] Board”.9 II, § PAGE asserted that former Article violated Section originally § 9. Section 1506 as enacted stated: gaming permitted part, including The conduct of as under this physical any facility, location prohibited licensed shall not be or ordinance, regulated by any provision, otherwise resolution, home rule charter regulation any political rule or subdivision or local instrumentality or authority zoning State that relates to or land use facility to the that the approved by extent licensed has been may, board. The board zoning its discretion consider such local considering application ordinances when an for a slot machine li- may, cense. The zoning board in its discretion consider such local considering application ordinances when an for a slot machine li- subdivision, provide political cense. The board shall within applicant proposed which an a for slot machine license has to locate gaming facility, 60-day a period prior licensed a comment to the approval, approval applica- board’s final condition or denial of of its political may tion for a slot machine license. The subdivision make improvements applicant’s recommendations to the board for to the proposed plans impact site that take into account the on the local to, community, including, transportation but not limited land and use impact. apply any proposed This section shall also racetrack or licensed racetrack. (amended 1, 2006, originally § 4 Pa.C.S. 1506 as enacted Act of Nov. 9.) § P.L. No. 135 Constitution, provides “[t]he which Pennsylvania 1 of the in a shall be vested Commonwealth legislative power and a consist of a Senate shall Assembly, which General II, § 1. In their Const, art. of Representatives.” House Pa. the constitu- not take issue with did challenge, petitioners effect preemptive of its former 1506 because tionality of Rather, they regulations. and land use zoning over local because § 1506 unconstitutional argued that former was act like a the Board to had Assembly empowered General reasonable, definite, providing board without super-zoning at 415. The it. guide to limit and PAGE lawful standards § 1506 constitu- passed that former countered respondents authority regard to the Board’s with tional muster because unfettered, but limited matters was not and land use zoning provisions set forth other the standards guided 1102, 1802-1305, and 1325. Id. Act, namely, Sections 416-17. stating: agreed petitioners,

This Court with Control provide 1506 does not Section standards, guide limitations to policies definite with While Sec- regard zoning issues. decision-making with local in its discretion to consider allows the Board tion 1506 slot reviewing application zoning ordinances when 60-day period comment provide machine license and to given any guidance Board is not to final prior approval, Although eligibility import same. the Board’s dis- guide criteria and additional requirements licensee, we approve in determining cretion whether adequate upon standards they provide do not find the local considering zoning may rely the Board facility the site of the itself. We land use for provisions law, that, does not matter of Section 1506 conclude as a II, I insofar as of Article Section with the dictates comply adequate to stan- Assembly provide the has failed General constitutionally, delegate, guidelines required dards and or administer authority to execute power of.the Act to the Board. provision (footnote omitted). Accordingly, Id. at 418-19 this Court § be 1506 as enacted to unconstitutional originally declared it from Act. Id. at 419.10 and severed 2006, PAGE, following Assembly reenacted General 1243, 1, 2006, § Act As § 1506. of Nov. P.L. No. 135 9. discussed, judicial Section for provides 1506 now review orders, local or inter involving, final determinations decisions alia, § the location of licensed 1506. facilities. Pa.C.S. Act,

Accordingly, Gaming Assembly under the the General facilities in class obligates Board to locate licensed first cities intends for the Board to make that decision alone. 1304(b)(1),!307. §§ 4 Pa.C.S. After the Board’s on decision made, location is the General intends for it to be Assembly implemented under and use according zoning and land provisions city has Ogontz, enacted. See at 448. A.2d Should the Board’s decision location challenged, order, Assembly General intends of the review final city determination decision take regard makes place Act, § in this Court. 4 Pa.C.S. 1506. Under the Assembly General does not intend for the electorate of a first consider, class to be city given the opportunity approve, disapprove, nullify or otherwise affect the Board’s decision once it made or its prevent implementation. 4 Pa.C.S. §§ 1506.

Having thus resolved General Assembly’s intent Act, we consider Board’s and Intervenors’ matter, that the general assertion Ordinance is invalid. As a are municipalities “possess only creatures the state and clear, matter, particular Respondents 10. To be in this have not raised facilities, making City’s that in to locate decision licensed II, Constitution, Pennsylvania offended Article Section II, ways art. or acted that are forbidden under PAGE. Const, Pa they Nor have asserted either of for the locations licensed facilities approved contrary City’s zoning the Board observed, provisions. and land use we As when Board announced applications City, its decision on the for licenses in the it noted that the proposed location of HSP's site is in an area of zoned for uses compatible analogous gaming, with or and that the location proposed fully compliant Entertainment's site is with the requirements supra pp. of a CED district. 5-6. See 266 granted are government expressly of powers [them]

such effect.” v. necessary the same into Devlin carry and as are (2004) 564, 1234, Pa. 862 A.2d 1242 City Philadelphia, 580 of (alteration v. original) (quoting City 75, (2004)). Schweiker, municipali Pa. A.2d 84 A 579 858 except enact as author powerless is therefore ordinances ty statute, and not in with by conformity ized ordinances Id. enabling will be municipality’s statute void. of other powers types municipalities,

Like are like municipality, Philadelphia, of a home rule powers determined. largely constitutionally statutorily that shall Pennsylvania provides “[m]unicipalities Constitution rule power adopt to frame and home right have the charters, rule pursuant charters” and that such a home function municipality “may any power perform any exercise Constitution, by by home rule charter or by not denied its IX, § time.” 2. Assembly pa. const, art. General city Rule Act that a provides The First Home Class amending act and ... charter “taking advantage may powers have exercise all and author thereunder shall complete and shall ity self-government powers of local have to its func municipal and administration relation legislation [,]” subject tions ... to certain enumerated limitations. Among city § the limitations are “no shall P.S. 13131. of, to, inor limitation or powers contrary enlargement exercise are by Assembly of the General which powers granted acts ... 53 P.S. every part Commonwealth.” [applicable 13133(b). limitation, respect to this second this Court With municipal home rule explained by has ordinances enacted ities are when conflict a statute the negated they with General matters of concerning has enacted “substantive Assembly Commonwealth, concern.” Ortiz v. Pa. statewide (1996). A.2d regarding these and our determination principles view authority

the Board’s to locate licensed facilities under which that decision is to be Gaming process Act and made, only once it we can conclude that implemented There- Act forbids. permits Ordinance fore, the in conflict Act. Ordinance is with the The Act does the Philadelphia right through any allow electorate the nullify means whatsoever to consider or the decision the Category Board made to locate 2 licensed in the two facilities City, as does the Ordinance. The Act does not give right electorate to the Philadelphia City the direct Council and City’s disregard of Licenses and Department Inspections those portions the Code or other local law by which the Board’s decision is to be hold implemented. We accordingly, the Ordinance is an unlawful and unconstitu- invalid, pa. tional IX, § const, exercise of power, art. 2; 13133(b).11 § P.S. further has We hold Board injunction a clear to a right permanent enjoining established from Respondents question on the ballot placing under Ordinance. reasons,

For these it is are Respondents ordered that permanently enjoined placing from on the question ballot. It is Application also ordered that the for Relief Summary denied, filed by City Respondents as to Petition I is moot, Petition II is as the Application dismissed for Summary City Relief filed by Respondents as to Petition II is dismissed as moot. EAKIN,

Justice Justice Justice BALDWIN and join FITZGERALD the opinion.

Justice BAER a concurring opinion. files Justice a CASTILLE files dissenting opinion.

Justice dissenting SAYLOR files a opinion. I, City 11. In Petition the Board also asserts that Council committed a Ordinance; variety procedural approving errors the referendum; that the improperly zoning by Ordinance amounts and that exclusionary impermissibly Ordinance is de in that it excludes facto resolution, zoning Philadelphia. licensed Due to our we need addition, challenges. address these other Petition II rendered moot, Application Summary by as is for Relief filed Council Respondents to Petition II. BAER, J, concurring. Pennsyl- that the majority’s conclusion disagree

I with Act Gaming (Gaming Act Development Race Horse vania seq., provides 1101 et this Court with Act), § Pa.C.S. by Pennsylvania jurisdiction brought decide the action (Board). Nevertheless, because I be- Gaming Control matter on an jurisdiction decide this this Court has lieve and, majority’s ultimate agree I alternative basis as with injunction is warrant- a permanent merits determination that majority.1 ed, I concur in the result reached Act’s Mr. I believe Saylor, Like Justice to Sec- pursuant to this Court grant appellate jurisdiction Act, our does not warrant tion 1506 of the Pa.C.S. relief, is a injunctive request of the Board’s review a court. See jurisdiction original matter directed (“A the courts to challenge J. at 2 Saylor, Dissent act, presently as the ordinance legislative such having jurisdiction, 1. this Court's In addition to basis invoke proposition, able demonstrate that general the Board must also be controversy,” judicial presents appropriate for matter a "case or this resolution, see, Venango County Venango v. Public Office of Defender's 317, Pleas, 1275, County 1279 586 Pa. 893 A.2d Court Common of (2006), giving aggrieved actions rise and that the Board has been standing controversy, case so that the Board has to seek to such or Park, Commonwealth, 196, relief, Pittsburgh v. 585 Pa. see Palisades LLC 655, (2005). Regarding prerequisites to merits A.2d these 660 determination, aggrieved by agree majority that board is I with implementation, passage as such Council’s of ordinance and opportunity to override the presumes provide the electorate with the I regarding where facilities are to be located. Board's decision licensed possesses majority's that the Board agree also with the conclusion ordinance, upon standing enjoin implementation of the based to seek to duty statutory within cities of the Board's to locate licensed facilities Moreover, 1304(b)(1). my agreement given § 4 Pa.C.S. first class. See merits, permanent majority's decision with the ultimate authority has to locate injunction is warranted because the Board sole issue, resulting be referendum would the licensed facilities view, important prevent nullity. my crucially that we an it is Drainage Deer Basin void from the outset. See Creek election AlleghenyCounty, Authority County 475 Pa. v. Board Elections (1977)(indicating, a case where a referendum A.2d in that, "[i]n result in a measure that would void the outset could unjustified expendi- unnecessary voter and the order avoid confusion election, protect public inoperative and to resources on an ture injunctive appropriate.”). parties, of all relief is interests issue, is conventionally understood to an represent original matter.”). jurisdiction

Accordingly, 1 do not believe the Board properly invoked jurisdiction Court’s through its erroneous assertion that jurisdiction we possess pursuant to Section 1506 of the Gam- Nevertheless, Act. ing because I believe the matter could have been properly commenced a court having original jurisdic- tion, action, rather than dismiss the the proper procedure would be to transfer the case to such tribunal. See Pa.R.C.P that, 1032(b)(specifying it appears by “whenever suggestion the parties or jurisdiction otherwise the court lacks of the subject matter ... the court shall order that the action be transferred to a court of the juris- Commonwealth which has diction”); 5103(“If § see also Pa.C.S. or appeal other matter is taken brought to or in a court or magisterial district of this Commonwealth which jurisdiction does not have matter, or other appeal the court justice or district shall not quash matter, such appeal dismiss the but shall transfer the Commonwealth”). record thereof to the proper tribunal of this Having determined that the instant injunctive action for relief could have been brought an appropriate pos- court sessing original jurisdiction, I also note that this Court could have then invoked its “extraordinary jurisdiction,” see 42 Pa.C.S. jurisdiction case, assumed plenary over in it resulting being transferred back to this Court for final adjudication. 1 believe that rather than on such insisting procedural maneuvering, under the facts of this case and at juncture, we should simply keep given and decide it issue, importance of the the time frame involved and our judicial interest (Not- economy and expediency. See id. withstanding law, other provision of the Supreme Court on may, its own motion or upon petition of any party, in any matter pending before any court or justice district of this involving Commonwealth an issue of immediate public impor- tance, assume plenary jurisdiction of such matter any stage thereof and enter a final order or right otherwise cause justice done); to be see also Deer Creek Drainage Basin Authority v. County Board Elections Allegheny County, (1977) (where we, likewise, n. 3 Pa. 881 A.2d important of the jurisdiction our view plenary

exercised a void refer- involving potentially election issue whether public enjoined). matter should be endum may properly I believe our foregoing, Based on Court request injunctive merits Board’s relief. of the address majority I the result concur in reached regard, In this relief is that such warranted. CASTILLE, dissenting.

Justice Saylor, joined, I the dissent of Mr. Justice which Over 13, 2007, a on per April entered curiam order Court relief to injunctive extraordinary, preliminary granted (“Board”), relief which Pennsylvania Gaming Control passing voters from a Philadelphia primary prohibited a amendment concerning zoning referendum ballot The order per curiam contained Charter. for the jurisdictional citation basis Court’s explaining no nor merits citation discussion prohibition, order goes relief justify extraordinary granted. Court injunction, today permanent further order- step grants permitted that the citizens of shall never ing repre- local change the Charter referendum their upon to vote opinion, would them consider. sentatives have injunction, and does not permanent confines itself to Court injunctive explain preliminary relief. attempt why granted in the under- April perhaps The error Court’s order standable, time constraints the Board’s so- given the when But, this has “emergency” called were filed. Court petitions more careful ample concerning since had time for deliberation deliberation, course, injunctive relief. That the propriety Court, an situation for the should it creates uncomfortable franchise suspension that its was recognize original erroneous, mistake; requires admitting since correction explain does why Majority attempt perhaps under justified stringent its initial order standard how was injunctions. admitting But mis- preliminary applicable now, duty, our case. I am convinced appropriate take is lacked, continues to April, more so than in that this Court lack, jurisdiction deny to grant request Board’s initiative; on the ballot right People fundamental vote that, jurisdiction, grave if had such it is a mistake to even we franchise; in grant suspension relief the form of particularly upon request that it is to do so inappropriate cognizable legal of an has no agency administrative which by allowing interest in manner compromised any Therefore, in on a referendum. I weigh voters would vacate, improvidently granted, injunctive April order of I petitions and would dismiss the instant want of jurisdiction and let the People vote. jurisdiction the question

On under the Act to enjoin an election at the behest of an agency, administrative dissents, I Saylor again articulating Justice to be what believe Majority’s unanswerable rebuttal claim that this original appellate jurisdiction Court has to abort ballot poses question initiative the Board feels could join inconvenience it if answered a certain I therefore in way. that part Saylor’s of Justice dissent lack explaining why we jurisdiction under the Act.

In addition to joining Saylor’s concerning Justice dissent Act, jurisdiction I separately under write to address the dicta, Majority Opinion’s suggestion, this Court has independent to cancel the authority vote and interfere legislative process Philadelphia through a sua asser- sponte tion of King’s power, Maj. Bench 502. See op. Pa.C.S. 257-58 n. at 1264-65 A.2d n. 6. I also write to address certain substantive in the points Majority Opinion with which (1) I respectfully I that: disagree. Specifically, would hold if jurisdiction even this has request Court over the Board’s disenfranchise the citizens of Philadelphia, justifi- there is no cation for the Court’s and remarka- unnecessary, paternalistic (2) franchise; Board, ble prior restraint of the bureaucratic entity, standing enjoin lacks to seek to the right of the People proposed to vote on a to their change Charter. decision Today’s represents departure dramatic underlying values for the democratic respect Court’s Therefore, compelled I am government. system

our dissent. This Lacks Jurisdiction.

I. Court appellate has claim that Court As an alternative to its officials City prohibit Act to under the jurisdiction referendum proposed on the the citizens vote letting footnote, declares, in a Council, Majority framed by King’s of our merits invocation clearly matter also that “this Code, 42 of the Judicial under 502 Bench Section powers” 1138, Avellino, 385, 1140- Pa. 690 A.2d Pa.C.S., re 547 and In jurisdic- (1997). basis for of this alternative suggestion 41 The for relief under never asked since the Board gratuitous, tion is Bench. King’s Bench Avellino, King’s power exercised its

In this Court District, from the First Judicial arising a dispute resolve of Pleas of the Court Common judge where a by made assignment honor an County had refused to The Avellino the Trial Division.1 Judge of Administrative of ex- power in this Court’s the difference explained Court 726, King’s § and its 42 Pa.C.S. traordinary jurisdiction, Bench powers: of the Court’s an exercise many respects

Although effect as an exercise to the same powers Bench is King’s 726, Pa.C.S. two jurisdiction under extraordinary section jurisdiction under Extraordinary are not identical. of a jurisdiction plenary to assume 726 enables Court justice or district before a court matter pending limited. The are not so powers Bench stage. King’s inferior tribu- general superintendency over “power of in a nals,” pending no matter is be exercised where may Cases, 420 Determination Judge President lower court. Cf. (1966) Bench invoked 243, (King’s powers Pa. 216 A.2d of common court pleas commission priority to determine from the Administrative upon Court a Petition 1. Avellino came to the District, apprising Judge Judge the First Judicial and the President Petition, below; we response judicial dispute the Court of the a Rule to Show Cause. issued judges). reject argument therefore Judge We Avellino’s be- cognizance dispute this Court cannot take subject cause the statutory matter does not fall within our original jurisdiction, there no final order as which we jurisdiction, can exercise there is no “case” appellate pending extraordinary jurisdic- as to which can assume we tion.

690 A.2d at 1140-41 (emphasis supplied). This Court further re In addressed the nature of its King’s powers Bench Franciscus, 53, (1977), 471 Pa. A.2d which involved challenge to this authority Court’s issue Writs of Prohibi tion, writs may only be issued to tribunals: lower

The Supreme Court’s inherent the inferior power over judicial courts and officers can be traced historically. Laird, Carpentertown Coal & Coke Co. v. 360 Pa. 99- (1948), 61 A.2d 428-29 the Court sketched the history this Court’s superintendency powers: “It suggested Turnpike that al- Commission though this Court has assumed the to issue of power writs prohibition question as to its right constitutional so to do has not heretofore been or Be challenged discussed. that as it may, justification for the Court’s exercise of such power 22, 1722, is to be found the Act of May 131, 140, XIII, Sm.L. section which vested in the Supreme all jurisdictions Court and of powers superi- the three or Westminster, courts at Bench, namely, King’s Common Pleas and the Exchequer. Inherent in the King’s Court of power general Bench was the of superintendency tribunals, over inferior a power which of was ancient inception and recognized by common law its very beginnings. III, Blackstone says, Book (of *42: jurisdiction Bench) ‘The of this court King’s is very high keeps juris- and transcendent. It all inferior dictions authority, may within the bounds of their and proceedings either remove here, their to be determined prohibit progress or their By below.’ the Act of 1722 the Supreme Court of Pennsylvania was in the placed same relation to all jurisdictions inferior that the King’s super- power and of England

Bench in thus the occupied, intendency vested became over inferior tribunals time of its creation: Common- this Court from the Miller; 80, 81; 41 Pa. v. 33 Pa. Chase v. Ickhoff, wealth supervisory powers of its over 411. the exercise Bench em- King’s tribunals Court of subordinate practice prohibition right writ of such ployed Court; Congres- First passed Supreme to the accordingly 739; Election, 1, 13, 295 Pa. 144 A. District sional 48, 64, Petition, 505. The 324 Pa. 187 A. McNair’s jurisdic- limiting original the Constitution provision this right; not affect the tion of Court did existence super- did not remove from the Court Constitution power visory The over lower courts.... functions controlling general of inferior is so the action courts it has limited comprehensive never been byor nature procedure particular forms of prescribed for its exercise.” employed of writs (further (1977) cita- (emphases A.2d at supplied) 1192-93 omitted). footnote tions and obviously

The exercise Bench Avellino was King’s concerning judi- supervisory issue appropriate; involved But, does cial officers of inferior tribunal. this Court role vis a the actions of the supervisory have such vis Council, body. City other legislative tribunal, tribunal is not a much less it an inferior Council Nor is subject superintendency Court. Elections Philadelphia County Board of a tribunal answerable explanation claiming Court. Court’s jurisdiction judice Bench in the case sub King’s appropriate have to act because we upon solipsism: authority rests “we have the to act.” say authority we Majority’s represents troubling arrogation dictum The fact that the with displeasure Board’s power. is, view, action in the Court’s preliminary legislative Council’s generat- one that has “widespread importance, a matter not, own, explain does public ed ... substantial concern” more here authority Bench than why King’s appropriate would to call team officials of the Philadelphia Eagles and the Pittsburgh Steelers to explain their draft selections. There is judicial here, no supervisory issue as the Board elected to injunctive seek relief directly in this Court. The “dispute” the “aggrieved” Board created here is properly appealable time; reviewable or in no court at this properly appealable statute; reviewable or to this Court properly reviewable or appealable by statute in some other court one, inferior to this a court the Board chose to bypass. If the Majority believes the circumstance presented involves scenario, latter or if it prefers that route as a way to back away from the patent jurisdictional error it made on April it should identify court and jurisdiction, the basis for its and then explain why it ignore would the parties’ jurisdictional arguments, perceive judicial an issue of supervision or admin- istration, and sua sponte jurisdiction assume rather than transferring the matter to the court which should hear the “important” case in the first instance.

Beyond the question of whether this Court properly has the power to King’s invoke Bench jurisdiction in this instance is the equally important question of whether it should do so. The Board does not seek King’s Bench review. As the case presents given litigation Board’s strategy of filing itself— directly here —there is no issue judicial superintendency. The extraordinary anti-democratic relief sought enjoining — the vote of the citizens—likewise weigh should heavily against the Court becoming the Board’s supplemental advocate and creating jurisdictional end-around to advance the Board’s objectives. Finally, “harm” alleged by the Board has nothing to do with its cognizable “interests,” bureaucratic but at best is political, and that harm alleged is a mere piffle compared fundamental, extraordinary harm the agency seeks to upon visit the voters of Philadelphia by depriving them of the franchise. I would not torture King’s Bench jurisdiction just because the statute, case involves a an agency decision, and a ballot question, which are important or contro- versial, or even both. jurisdiction is that respecting

The to made point final be out and find review in which reach peculiar case in a mean- engage plain The authority. Majority purports But, 1506 of the Act. that construc- ing of Section construction only for the reasons articulated tion is and riot implausible, Act “final” speaks appealing The Saylor Justice dissent. but and referendum here are The ordinance decisions. legislative process. The ordinance stage in the ballot; change question merely charter places if, if, the only be actually Charter amended would the People Until have responded electorate in the affirmative. “order, final determination or is no spoken, there relevant issue, any plausible plain meaning ap- decision” at under doubt, of a final No obvious absence decision proach. repeated to the mischaracterization Majority’s what leads as voters an opportuni- question giving ballot The actual decisions. ty licensing override Board’s Council, thing. no phrased by says such question, ballot Board, its The not even address the question ballot does decisions; it adopted, apply if would powers, licensing Board, which, is answerable only Council unlike people Philadelphia. there. stop does not Majority’s torturing statute meaning of the statute plain its insistence that the

Despite may air political commands its conclusion that Court, the adverts directly Majority in this grievance or trivial as the over- interpretative points, such statute’s extraneous hasty gaming. purpose implementation all to facilitate the particularly revealing Majority In a invokes passage, and claims another of construction would principle Assembly allo- conclude the General would “absurd” to jurisdiction licensing over appeals cate direct review Court, not require to this but also challenges constitutional injunctive challenges to ordinances approving direct review of (and might which, way, a certain ballot if answered questions Board’s then on” decision only might) “impact Maj. op. concerning Philadelphia casinos. licensing decisions contrary, it is at all absurd to conclude at 1268-64. To that the Assembly simply General did not contemplate bur- dening this Court appeals with from local ordinances that merely would ballot place questions casino involving zoning before the Questions electorate. of constitutionality and ulti- mate are the most licensing important of questions under Questions Act. involving the Board’s to interfere in attempt local legislative processes, to deny people a right charters, doubt, vote upon proposed changes to local no simply were not contemplated. The Act enough creates of a Court, burden upon this requiring direct of review constitu- tional challenges and I licensing decisions. would not torture statute, the plain meaning words such as “appeal” and determination,” “final and the actual content of the ballot issue, question at to pretend that the places statute these sorts injunctive “appeals,” franchise, which seek to suspend this Court as well.

The Majority should April vacate the 13 preliminary injunc- tion having entered, as been improvidently peti- dismiss the tions for jurisdiction, want of and let the People vote. Relief, Injunctive

II. Negating the Form of the Fran- chise, Inappropriate. is

The Court’s per curiam grant injunctive preliminary relief on April 13 unaccompanied was by explanation or sup- porting citation. Today’s Majority Opinion likewise does not propriety discuss the of relief in the form of aborting the vote on the question, (or ballot rather than consigning the Board licensees, the truly relief, parties) “interested” to legal course, the ordinary following a vote on the initiative. Neither preliminary permanent injunctive nor relief justifiable par- where, here, ticularly the relief suppression involves of the Peoples’ right to vote.

A preliminary injunction properly may only issue when six essential prerequisites are established. As this Court noted in Centre, Summit Towne Inc. Mount, v. Shoe Rocky Show Inc., 637, (2003): 573 Pa. 828 A.2d 995 ruling a preliminary injunction request, a trial court

has “apparently reasonable grounds” for its denial of relief of the “essen any following finds that one properly

where a preliminary injunction for is not satis tial prerequisites” GP, Hamilton & Pepper, fied. v. See Maritrans [Inc. (Pa.1992) Scheetz,] [1277,] ] Pa. 602 A.2d 1282-83 [ are injunction pre “essential (requirements preliminary Commonwealth, v. County Allegheny requisites”); (1988) (“For preliminary Pa. A.2d a issue, must every injunction prerequisites ] one [ established; one of petitioner if the fails to establish others.”). First, them, no need to address the there is that an injunction must party seeking preliminary show injunction necessary irrepara immediate and prevent dam compensated by ble harm that cannot be adequately Second, injury .... party greater must show ages refusing injunction granting an than from would result it, and, injunction concomitantly, issuance of will harm other in the parties proceed interested substantially Third, .... must ings party preliminary show status as injunction parties restore the their properly will con immediately prior alleged wrongful it existed Fourth, injunction .... an must show party seeking duct actionable, that its that the it seeks to restrain is activity or, clear, manifest, is wrong is and that the right relief words, likely it on the prevail other must show that is Fifth, injunction party merits.... must show offending is to abate the activi reasonably seeks suited finally, seeking injunction Sixth and ty.... party injunction adversely must that a will not preliminary show interest. affect public omitted). a

828 A.2d at citations The test for (supporting injunction simpler, requires showing but still permanent ordinary in the adequately harm cannot be addressed by an action at law: course permanent injunction, establish a claim for a order to

[I]n relief.... party right must establish his or her clear However, claim preliminary injunction, unlike a for a immedi- irreparable need not establish either harm or party injunction final if such ate relief and a court issue a “may relief is necessary prevent there legal wrong which is no at ... adequate redress law.” Jones, 659, Township v. 571 Pa. 813 A.2d 663-64 Buffalo (2002), denied, cert. 540 U.S. 124 S.Ct. 157 L.Ed.2d (2003) (citations omitted). Notably, its discussion of the procedural matter, history of this the Majority cites to Chief Justice Cappy’s opinion case, in the Township then be affected some I vague way. say because, vague according to the Board and the Majority, all the power is with Board, the so any action of Council would be a nullity. Null acts tend to cause little harm. hardly This is an immediate harm warranting suspension of the legislative vote on a refer- endum. the irreparable, irrepa- harm if word conjectured

Nor is the If of the ordinary meaning. its all rable is to be accorded Board, to the came pass, the Board fears contingencies (the the in matter successful some with a true “interest” party vote, after seek relief after the and license could applicants) the both the Board and the harm materialized. Since alleged area, “sole authority” feel that the Board has Majority more than sufficient to vindi- ordinary in the course is relief the ex- taking cate interest —all without alleged the Board’s People’s the sacred franchise. traordinary step sacrificing disingenu- and most highest It of the require sophistry would public is more harmed ous order to the interest suggest it, or by granting suggest the to by injunction denial of than to await actual greater injury that it is a the to have suspend right it to vote harm to seek relief than is to Philadelphia. Solicitor, filed a

Notably, City of the which has Office the Board of very City on behalf of and helpful brief (in Elections, Majority the Board and with the agrees with amendment, if City Charter analysis) proposed merits that the voters, nullity, given would adopted prove Act As the Solicitor cor- legislation. breadth of notes, however, possibility is no reason rectly contingent measure, upon legislative ballot deny right vote remedy contingency and the Board’s should await the (if terms, any) posits. pointed harm more attenuated April characterize this Court’s respondents Council “a anti-democratic act direct- injunction fundamentally Commonwealth, of ly inconsistent traditions with Nation, polity. our indeed of civilized democratic E.g., County County v. Bd. Elections Mt. Lebanon (1977). The role of 470 Pa. 368 A.2d Allegheny, produced by our electoral courts is evaluate statutes It of our place is not courts legislative process. complete.” City Council process intervene before that Brief, of our pains say 3. It me to characterization order accurate.

The simply cannot be said to suffer kind of cognizable harm legal by merely electorate voting all, on the reject referendum. First of the voters could unions, the referendum. The Mayor, many groups and other openly in gaming favor if Philadelphia. majority Even a approve voters were to change, Charter the referen- dum merely says that Council cannot act affirmatively permit But, licensed in certain gaming zones. the Board’s merits argument, embrace, which the Majority quick says it does not need approval Council’s at all. If cooperation correct, is, the Board is as the I Majority says it then cannot non-action, an perceive how irrelevant or even an affirmative non-approval an by entity with no in say approvals, affects decisions, Board’s licensing much “authority.” less its How Board, can it harm the a mere agency, to extent that suspension right of the vote a proposed change Charter justified?

There is little doubt that the political referendum ploy was on Council’s nor I part, do doubt that it raised false hopes But, some voters. that is no reason to deny vote. No doubt, the daily business of the Board if would easier Philadelphia voters were denied the opportunity to voice their dissent, concurrence, or their with the gaming contours doubt, Philadelphia. No the Board would not to prefer be the subject public However, notes, criticism. as Council “[t]he desire of to avoid the [the Board] embarrassment of a public rebuke by Philadelphia voters is enough, understandable but it hardly affords a basis for the extraordinary relief sought.” Brief, City Council 8. Welcome to the brave new world of government in a democracy. Memo to Board: criticism is part job. If the Board is correct on the merits of its power, definition, neither it nor the it casinos licensed can be said to suffer any harm which would warrant extinguishing the right express citizens “to their views about governmen- tal actions that affect them Id. profoundly.” declares,

The Majority if repeatedly as a were self-evident truth, the General Assembly did not confer upon citizens of Philadelphia right upon vote change Charter government local should involving

referendum the role their Philadelphia. casinos in accommodating state-ordained play rights do the By authority voting what the con- representatives their local citizenry, concerning Charter, such silent upon of their assumed depend tours local seems perceived by Majority? Majority whims area, it legislates in an Assembly believe that if the General citizens affected and denies of an thereby implicitly, lawfully, involving from measure political voting subdivision and subject extraordinary, extraordinarily matter. This is in a dangerous, assumption democracy. legislation Statewide field, it may expression, may it a local may occupy displace a can to expression, operate a local but how disapprove subject? of the to a deprive citizenry pass upon even right enacted, law, to actually proves If a local once be unconstitu- tional, to there greater authority, or be inconsistent with some course, in the remedy ordinary is time the matter enough and after approved, after has been voted on law considered deliberation.

Moreover, democracy the curious view of which powers Majority’s right seriously of the to vote mischaracter- analysis the ballot Again, izes the content of the referendum at issue. or the purport Assembly does not tell the General question local, The aimed at the purely Board what to do. measure representatives. adopted, citizens’ local If the referendum Council, approve a would restrain change would Charter which It is for a Assembly. thing not the Board or General one in, to, state-imposed or to under locality acquiesce knuckle It is might decisions with which the disagree. subdivision mile to warmly go embrace and extra quite another The notion state-imposed Majority’s advance the directive. role in expressions of restraint and dissent have no one, democracy in indeed. Pennsylvania strange in this case presented No candid consideration the issues introduc- acknowledging can be without that the accomplished has been gaming Pennsylvania tion into controversial. legislation adopted manner was afforded which voter, average including likely most to be affected people casinos, of the scant in a siting opportunity engage then, debate. It is no meaningful public surprise, imple- organized mentation of the Act has led to outspoken community opposition Philadelphia, opposition pow- adoption ered Council’s ballot referendum at issue. Philadelphia Vegas. is not Las It is the of our birthplace Nation, vibrant, past present historic where the coexist. The the Act a certain provision requiring distance (as here, slots facilities the “racinos” in existing relevant Chester, Bensalem, and in County, County) Delaware Bucks obviously designed was to maximize the chances that the two casinos allocated to on the historic would sited waterfront, Delaware River the same waterfront William Penn first three years ago, saw over hundred the same Benjamin waterfront Franklin first year- saw as a seventeen later, old some forty years same waterfront that borders number of historic neighborhoods.2 The sites ultimately approved by the Board are easy walking within driving distance of Independence Hall and Square, Liberty Bell, Hall, Church, Carpenters’ Christ Elfreth’s Alley, Gloria Church, Dei and other historic sites.

The approved remaking the Philadelphia waterfront is extraordinary. Imagine gaming halls being placed this close to House, the U.S. or the Capitol White or as near to Faneuil Hall in Boston. Aside from the fact people no Philadelphia had to opportunity participate in a public debate specifics on the of the legislation ultimately adopted by the General Assembly, people in neighbor- the historic hoods most by affected the approved casinos a very had Board, limited say before the which was charged only abide by Assembly’s guidelines, and which went about its licens- ing duty alacrity. with To Court, add insult to injury, this over the author, dissent of Justice Saylor denied various neighborhood groups “standing” to be in con- heard nection licensing See, with the decisions. e.g., Society Hill only Philadelphia applicant 2. The casino whose site was not on the River, Trumpstreet, Delaware application rejected, large found its in part, because of its location. Bd., Pennsylvania Assn. et al. v. Control Civic (2007). Pa. 928 A.2d 175 so, directly by licensing

And affected neighbors As- successfully before the General decisions were muzzled Board, muzzled before totally before the sembly, muted not affected citizens surprising this Court. It is Council, track which did pursued parallel through legally if the response even respond complaints, their not, referendum, adopted or allows meaningless. The whether expression Philadelphia concerning an voters by view City. in their The casinos should be sited historic where referendum, acting adopted, keep if would Council in certain circumstances and gaming facilitate under some the found- authority, consistent with neighborhoods. By what Nation, enjoin by the Court a vote ing principles of our does its Council Philadelphia concerning the citizens of role simply There facilitating zoning in for casinos? play should democracy The restraint on makes unnecessary none. Court’s this a sad indeed. day, loquacious Pennsylvania

I am reminded of words of Musmanno, in a cáse involving Court Justice Michael Supreme change of a very arising proposed similar issue out Charter century ago: half a had been today If the handed this case decision down have might behind Iron Curtain well promulgated been characterized as illustration absolutism government. can their deprive people a voice majority says people of this Court submit- qualified pass simple questions are two upon but duly representatives, ted to them their own elected to be disfran- majority why people fails state are their involving government.... chised a matter own plaintiffs injunction have and obtained an sought who quite of these against questions people the submission have been clearly desire that both would questions [that in the If the contem- changes posed] negative. answered they in for the plated question people are bad would down, certainly resulting them and the vote would vote plaintiffs. result If therefore achieve the intended in the they people, people are for the would vote good proposed refer- plaintiffs affirmative. The have blocked the might people approve endum out of fear because, if obviously, they people amendments believed (the amendments, reject plaintiffs) they would would time, expense, energy have themselves the and work [saved] aspect in In that of the initiating litigation. involved case, it pertinent inquire pedestal is do the what plaintiffs they presume stand that can to determine what is good for the people. and what is bad

The right people any question to decide affects their is a in the right welfare enshrined [Constitu- States, tion of the United the Constitution of the of State Pennsylvania, and, concerned, far as so in Philadelphia the Home Rule itself. Charter

The lower pass Court declined allow the people upon the submitted not questions because of parliamentary ordinance, defect in passage but because it believed better than what was knew Council best for the City. But the did Charter not make of Court of Common ... Pleas upper Philadelphia chamber City Coun- cil. Court of Pleas ... legislative powers Common has no whatsoever.

Schultz v. City Philadelphia, 385 Pa. 122 A.2d 287- (1956) J., (Musmanno, dissenting). Nor this Court an Council, upper chamber of we do not legislative possess power. We should decline to advance the Board’s attempt possibility to stifle voters their expressing Majority views—views which the recognizes would be a nullity anyway siting of casinos their —on city. historic Schultz,

Although Justice Musmanno was in dissent his are significant only views inerrant logic because because, position case, his but in the also Mt. Lebanon expressly rejected Court plurality approach Schultz to 286 sepa- adopted that and instead responded, dissent Alvin Jones. Because

rate dissent of Justice Charles Schultz the case and obviously judice, Lebanon controls sub Mt. case, I its quote mischaracterizes majority because analysis length: make, to has been defined as

Legislative power power Furthermore, not alter, may courts and laws.... repeal As amendment powers.... legislature’s encroach on of a a charter has the force and status home rule enactment, not inter- legislative ... the courts should Justice) (later As Chief Charles Alvin Jones fere. Justice stated, Philadelphia, in v. dissenting opinion his Schultz (1956): 79, 89-90, 279, A.2d 385 Pa. 122 284 may jurisdiction equity “The of a court of not be invoked during course of its enjoin the enactment of a bill legislative body. prepon- a Such is the passage through I Country this and authority throughout derant weight fear say that of successful contradiction.... without anyone temerity suggest have the Would sitting Dauphin County, Pleas of Court of Common jurisdiction its who equity, complainant extend would passage the enactment of a bill sought enjoin during it on all though was conceded through legislature even bill, if be a passed, gross sides that would palpable Constitution?” violation 290, Pa. Philadelphia, in Cali v. As court stated (1962): 177 A.2d under form forgotten “... too often our basic system power of Constitutional Government the interpretative, legislative. Court is duty Supreme a Superior Legislature, are not a or even Supreme, We or to power and we no to redraw Constitution have Charters, Acts desirable Legislative rewrite be.” sometimes would

Furthermore, opinions court not offer advisory should legislative during stages process. the deliberative 350, 353, Pa. 126 A.2d Philadelphia, v. Knup (1956), this court stated: equally “... it is well established that a court will jurisdiction only challenged take in a case which statute, ordinance, actually or rule of court been has applied litigant; to a it does not undertake to decide academically unconstitutionality alleged or other invalidity legislation brought opera- until it is into impinge upon person rights tion so as to of some persons.” case, ... In only proposed legisla- there instant was which, enacted, tion until affected no one. The instant action was an to attempt advisory opinion. obtain an Lebanon, (cita- Mt. 368 A.2d at 649-50 (emphases supplied) omitted). tions

The Mt. Lebanon Court went on to specifically disapprove Schultz, of the plurality opinion in to the plurality extent that deemed it proper opine upon the of constitutionality pro- posed amendments to the Philadelphia Home Rule Charter to their prior adoption. The disapproved propo- Court (1) dictum,” sition because: it “pure was since the ballot (2) reasons; measure failed for independently procedural (3) was a non-binding plurality expression; “it ‘attempts and judicial allow unwarranted legislative interference with the process ... conflicts princi- [which] with sound constitutional ” and ples two centuries of case law of this court.’ 368 A.2d at 650-51.

Respondents specifically Majori- invoke Mt. Lebanon. The ty responds only briefly, attempting distinguish case here, grounds that its decision supposedly, is neither “theoret- ical nor abstract” because the is much a vote “as concern to ... as is the outcome laying of the vote.” Even aside the notion that a strange party’s “concern” makes an advisory opinion appropriate, this “distinction” distressingly Lebanon, non-responsive holding to the reasoning Mt. I which have been careful to present its fullness above. Mt. spoke Lebanon only avoiding advisory opinions, but also, and judicial more fundamentally, power limits when asked to legislative Major- interfere The process. ity enjoins a vote citizens on a to their proposed change stated that such expressly Mt. Lebanon

City Charter. enact- “the force status of legislative amendments have The ordi- ment, the courts not interfere.” should [and thus] referen- from a vote on the positive nance result would actually has dum has into much less it “been being, not come there only “proposed At applied litigant.” point, which, enacted, Majori- no until affected one.” legislation here is “an unwarranted ty’s grant indisputably of relief process,” ig- judicial legislative interference with the doctrine of the precedent, separation nores centuries of Mt. represents overruling sub silentio powers, Lebanon case. Lebanon, decision plainly-controlling in Mt. place of the decision cites and characterizes Majority incompletely Elec- Drainage

in Deer Auth. v. Bd. County Creek Basin Co., 491, 381 A.2d One tions 475 Pa. Allegheny (1977). that it only need the third sentence of case to see read no here: charter applicability [at has [home rule] “Under issue], upon filing Allegheny the the Board of Elections of with County petition, of a proper referendum any ordinance Id. subject suspended.” of such election the an Moreover, the automat- (emphasis supplied). at ordinance had ically suspended by petition the referendum in Deer Creek joint authori- multi-township, initiated the existence of water thus, by referendum existence effected an unlawful ty; the its joint majority the The Deer authority. withdrawal from Creek the harm length very parties detailed real to actual some the referendum: resulted from existence the very the con- This referendum election has raised doubts about Authority. tinuing vitality Drainage of the Deer Basin Creek only repeal suspension Not but also mere possible ordinance, home rule by operation of West Deer charter, joint Authority ability has hindered of this sewage project. to stabilize the cost Townships joint The Authority begin has been frustrated its effort and both Deer and operation project, West Indiana Townships have been unable to meet their sewage disposal needs. (1977).

475 Pa. 381 A.2d at 107 contrast, the ballot judice referendum the case sub not, existence, does by very operate statute suspend any ordinance, much less does it affect action of the Board. Again, the only referendum addresses authority, Council’s authority the Board and the Majority legal nullity. insist is a The fact that the Majority ignores this fundamental distinction Moreover, does not make it go away. it is notable that Deer Lebanon, Creek was decided later in the year yet same as Mt. cite, the Court but did not even much purport less did overrule, that case. Deer Creek does not remotely support Majority’s suppression of the Majority vote here.3 The should respect upon limitations power Court’s to interfere legislative with the process.

III. The Board Standing Suppression Lacks to Demand

of the Vote. The Majority Board, remarkably finds that the an adminis- entity, “substantial, direct, trative has a and immediate inter- referendum, est” in the such that it has to seek to standing prevent People from voting on the I respectful- measure. ly disagree with Court’s embrace of what amounts to bureaucratic standing. role, here, Board’s as relevant to investigate, was

deliberate, and award the two casino licenses authorized Act. In so doing, passed upon applications of real parties in interest: the license applicants. The Board licenses, awarded the two resulting winning parties two and three losing parties. One event, 3. In very I expanding would be careful before whatever general Creek, emerge rule can be said to from Deer since there is a question jurisdiction serious grant whether the Court had 1o the relief it ordered, and it seems obvious that avoidance of the immediate harm played a bypassing substantial role in the jurisdictional Court issue. The difficulties are Dissenting Opinion outlined in the of Mr. Justice Pomeroy, difficulties majority attempt the Deer Creek made no to resolve. See id. at 108-114. applicants appealed. license of the unsuccessful justified decision to conduct its the Board its appeal, On claim, face of a Sunshine Act private, deliberations in 704, licensing that its decisions arguing see 65 Pa.C.S. Casino, LP v. Pennsylvania quasi-judicial. Riverwalk were 518-19, 926, Bd., 592 Pa. A.2d Gaming Control itself, (2007). of its purposes The Board thus conceives least, licensing quintessential at as a decisions disinterested entity. to into this standing that the Board has come finding denied People

Court and demand a a that would effect right upon their to vote referendum Charter, their credits zoning change Majority to on the acts to Board’s that mere vote referendum argument statutory duty authority the exercise its “thwart[] Act.” at 928 A.2d at 1266. Maj. op. under completed this is nonsense. The Board Respectfully, “duty authority” when it exercise of its relevant awarded referendum has no effect on the licenses. The vote well-heeled, More if the success- importantly, those decisions. thereafter, are more applicants they ful encounter difficulties it their actual interests in positioned litigate seeing than Indeed, being. into that the facilities so licensed come already doing are so with additional applicants successful But, no cognizable legal here. the Board has lawsuits filed substantial, direct, and immediate inter- interest —much less it discharged licensing duty. what occurs after has its est—in Furthermore, if I indulge Majority’s pater- even were cognizable nalistic fiction that the Board has a interest decisions, a on the referendum licensing vote vindicating those The simply operate does not “thwart” decisions. and, noted, I at question ballot is directed Council have claims, finds, and the that Council’s view on Majority is a siting nullity. of the casinos the Board Majority cognizable also declares that has direct, “substantial, interest seeing immediate” Maj. op. licensing that its decisions are not overturned. Are very at 1266. This is a curious assertion. A.2d rendering judicial, quasi- we to believe that all entities in their judicial, cognizable having decisions have a “interest” vindicated, they may decisions such that initiate collateral designed rulings? lawsuits to defend their Does such “bu- standing” really reaucratic extend so far as to embrace peti- because, designed tions to abort local ballot if the questions goes way, vote a certain it “affect” the may “quasi- somehow judicial” decision? curious I Majority’s theory, Under suppose, judges enjoin trial have “standing” now seek to that might elections threaten the of their in a viability rulings particular case or controversy.

Respectfully, Majority needs to back from its step approach accommodationist At least gaming appeals. decisions, respect licensing with can ration- only Board ally entity, viewed as a neutral not a “party” with a proper cognizable “interest” in the licensing decisions it renders. Strictly speaking, Board has no interest beyond that of the citizens of Pennsylvania it. empowered who It has no more in “interest” than litigation this Court does. It particu- bizarre to larly conclude otherwise when there are actual ie., interested parties, the license I applicants. would recognize bureaucracy standing just because the in- (now vokes different roles agency, quasi-judicial, now now aggrieved litigant), at different times. The fact (it Board has a on the ballot measure inconveniences position Board) does not mean it has a cognizable interest legal it. The curiae; Board’s interest is similar to that of an amicus but it hardly substantial, has the direct and immediate interest required to establish standing, such that it can properly party pursue an action to kill a ballot measure.

What Board seeks to indo this case is to eliminate the prospect that the citizens of Philadelphia will express opposi- tion to casino gambling near to their residences and “residen- tially related” properties. Suppression of the may vote well political Board, be a concern for the but it is not a cognizable legal “interest” sufficient to establish standing. Why should Board, entities, unlike all governmental other be deemed immune from the opinion of the citizenry and the ordinary processes of government and litigation? As an arm of govern-

ment, suppress to seek to encouraged the Board should not be legislative process. in the public expressed views that a ironic that the Court finds

Finally, beyond suppress the vote entity standing seek bureaucratic has concerning gaming, on matter citizens cases, living that citizens themselves finding, while other casino affected the neighborhoods by awarding the very Thus, the appeals. no in the licensing licenses have stake to much as Philadelphia cannot be so permitted citizens of in gaming the location of facilities opinion voice their on Board, the the we “person” but fictional which Philadelphia, “substantial, believe, direct immediate possesses are to decisions, so that it strong in an interest licensing interest” the ordinary legislative process. the and the defeats franchise heard; has to be the Bureaucracy “right” This is perverse: Majority’s priori- not. I the skewed People do would reverse People ties and let the vote!

IV. Conclusion. to the colleagues Majority

I in the reconsider urge my 13, limits April respect to the improvident order entered the fran- respect primacy upon power, this Court’s chise, acceptance positions and to rethink their of the extreme Board, has no in legitimate forwarded stake I error and to let urge matter. Court to void its historic their colleagues to convince Failing my vote. People error, which, I I myself fundamental content with dissent trust, a future Court will vindicate. SAYLOR, dissenting.

Justice jurisdictional in Part II of On the threshold issue addressed majority I maintain opinion, position Section Act, § Gaming 4 Pa.C.S. does not extend A the courts to original jurisdiction challenge matters.1 statement, developed my dissenting position previously This 1. was Castille, 13, 2007, April joined by Order Mr. Justice Court's preliminary injunc- granting request for a Control Board's (cid:127) tion. act, legislative such as the ordinance at presently issue, is conventionally understood to represent original matter, see, jurisdiction e.g., Devlin v. City Philadelphia, (2004); 580 Pa. 862 A.2d whereas 1506 is Section explicitly jurisdiction,” addressed to this Court’s “appellate Pa.C.S. 1506.2 In so I addressing Section do simply Legislature believe that contemplated radical alteration to practice conventional reflected majority opinion. the Legislature Had the statute designed extend its reach jurisdiction matters, to classic original readily could utilized applicable have terminology.

My response assessment, to the majority’s policy Major- see ity Opinion, 256-58, op. 1264-65, 928 A.2d at as set forth in my previous statement, dissenting remains as follows: that,

I recognize had General Assembly foreseen the present circumstances, it might very well have drafted Nevertheless, Section 1506 more broadly. approach our statutory construction is to apply the plain terms of an clear, see, enactment are they when e.g., Commonwealth v. McClintic, 465, 472-73, 1241, (Pa. 589 Pa. 909 A.2d 1245 2006), Ias they Moreover, believe are here. investing Court, State Supreme generally which functions in an appel late capacity, with exclusive for responsibility original juris diction is a matters reordering great to both consequence (in the Court terms of resources and procedures) and the litigants, I which believe should occur only upon very clear

and deliberate terms. Highlighting 2. appellate original the difference between jurisdic- and matters, tion Appellate pertaining our Rules of Procedure to review of governmental determinations are framed around this distinction. See (distinguishing Pa.R.A.P. 1511-1561 appellate original between and jurisdiction petitions deadlines, content, filing for review in terms of allowed, intervention, review, pleadings other scope disposition); and 1501, ("|T]he Pa.R.A.P. Note rules clearly have been amended to more separate procedures appellate proceedings applicable from those to original jurisdiction proceedings"). generally See G. Ronald Darlington, J. R. and Kristen W. McKeon, Pennsylva- Kevin Schuckers, Daniel Brown, (elaborating 1501:1 on fundamental differences Appellate nia Practice appellate matters). original jurisdiction between 294 Bd. Phila v. Council

Pennsylvania Gaming Control (2007) 241, J., (Saylor, Pa. A.2d 1255 dissent delphia, 593 928 Castille, J.). joined ing, by each of the ma- reasoning supporting subsequent part the integrally upon me to

jority appears depend to opinion Assembly that “the has majority’s repeated assertion General authority the to locate licensed facilities given the Board sole right not electorate the give City’s did prevent imple- to or that decision or to consider override Majority that City’s mentation of decision under the laws.” 1265; 258, 259, at also id. at 261- Opinion, at 928 A.2d see op. 1266, 1267-69, 264-67, Clearly, A.2d at 1269-70. However, in Legislature’s design. Pennsylvanians was the Commonwealth, Fund, Gambling Inc. v. Against Expansion (“PAGE (2005) ”), A.2d 383 this Court found Pa. intent attempt to effectuate this Assembly’s the General non-delegation Act violated the clause of Gaming via Constitution, Pennsylvania specific absence of more is to such legislative standards Board make 334-35, A.2d at Al- determinations. See id. at 418-19. though Legislature subsequently amended the Act, it stan- nothing supply necessary did “definitive dards, guide decision- limitations policies [the Board’s] I not regard issues.” Id. do follow making zoning with logic underlying majority’s position amended Section void, fills the See serves function otherwise the, 264-65, op. at 928 A.2d since Majority Opinion, standards, policies, or to be supplies amendment no limitations facilities; the location of but applied by gaming rather, solely judicial relates review.

My this matter remains this Court position concerning should have to restrain the presentation intervened regarding the ballot question electorate of City, location on either the gaming facilities within been jurisdictional grounds developed or substantive have thus by majority far. for recognize grounds I that there are additional

Finally, petition relief Control Board’s asserted 11, review, Majority op. 267 n. 928 A.2d at 1270 Opinion, see 11, n. including represented claim the ordinance an attempt engage constitutionally impermissible exclusion- ary zoning. To the extent that additional review warrant- ed,3 I believe those matters should be aby addressed jurisdiction, court of appropriate in a fact- necessary, where finding At capacity. juncture, objection I no would have to the indicated majority’s prerogative to invoke the Court’s see Majority Opinion, op. at 257-58 n. King’s powers, 6, Bench 6, 928 A.2d at 1264-65 n. to initiate process.

929A.2d 205 Pennsylvania, Appellant, COMMONWEALTH

v.

Jeffrey JONES, Appellee. Supreme Pennsylvania. Court of 28, Aug.

Submitted 2006.

Decided March 2007. statement, my prior 3. dissenting As noted in I believe that this matter is technically keyed May moot since the ordinance was Although primary. generally courts will review controversies that moot, have exception become exists where the circumstances are See, capable repetition yet evading e.g., Burger review. v. Board of Dist., 574, 583, McGuffey School Directors Sch. 576 Pa. A.2d (2003). notes Buffalo that a permanent injunction is available if the Board estab relief, lishes a clear right to but then omits requirement that the moving party injunctive show that relief necessary because there is no adequate view, at remedy my law. Board has not come close to carrying its burden of showing (and that the ballot question issue posed poses) such an immediate and otherwise irremediable harm to the Board that it is entitled to deprive Philadelphia of the right pass voters upon the measure. There is no possible justification for the Court’s initial order under injunction standards, preliminary may explain Court’s silence on that point, permanent and its order likewise ignores the governing standard. It cannot seriously be main- tained that there anwas “immediate” “irreparable” harm to the Board’s posed “interests” by primary ballot ques- tion. Respecting immediacy, I cannot discern what harm the Board would suffer (assuming bureaucracy can be said to suffer cognizable area, later). harm in this but more on that Any harm was entirely contingent. Harm allegedly would arise if the right electorate’s to vote had not been suspended Court, if a majority Philadelphia voters then voted favor of the Charter change, and if the City Council then acted on that change. harm consisted in the fact alleged that implementation of the licensing Board’s might decisions

Case Details

Case Name: Pennsylvania Gaming Control Board v. City Council of Philadelphia

Court Name: Supreme Court of Pennsylvania

Date Published: Aug 3, 2007

Citation: 928 A.2d 1255

Docket Number: 55 EM 2007 and 56 EM 2007

Court Abbreviation: Pa.