SOCIETY HILL CIVIC ASSOCIATION, Queen Village Neighbors Association, Pennsport Civic Association, Whitman Council, Inc., Paul Neuwirth, Rita Gaudet DeVecchis, Barbara Seiple and Katheleen McGrann, Petitioners v. The PENNSYLVANIA GAMING CONTROL BOARD, Respondent HSP Gaming, LP, Intervenor, Philadelphia Entertainment and Development Partners, LP, Intervenor, Pinnacle Entertainment, Inc. and PNK (PA), LLC, Intervenor.
Supreme Court of Pennsylvania.
Submitted May 7, 2007. Decided June 4, 2007.
928 A.2d 175
Eric G. Fikry, Jeffrey Brent Rotwitt, Stephen David Schrier, Obermayer Rebmann Maxwell & Hippel, LLP, Philadelphia, for Philadеlphia Entertainment and Development Partners, LP, intervenor.
Andrew J. Giorgione, Harrisburg, for Pinnacle Entertainment, Inc. and PNK (PA), LLC, intervenors.
Thomas W. Corbett, Jr., PA Office of Atty. Gen., for the Com. of PA, participant.
Larry D. Silver, Langsam Stevens & Silver, LLP, Philadelphia, for Society Hill Civic Association, et al., petitioners.
Richard Douglas Sherman, Frank T. Donaghue, Linda S. Lloyd, Harrisburg; Arlene Fickler, Lawrence T. Hoyle, Jr., Hoyle Fickler Herschel & Mathes, LLP, Philadelphia, for PA Gaming Control Bd., respondent.
BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.
OPINION
PER CURIAM.
This direct appeal pursuant to Section 1204 of the Pennsylvania Race Horse Development and Gaming Act (Gaming Act),
By order dated March 13, 2007, this Court directed the parties to brief the following issues: (1) whether Petitioners have standing to appeal under Section 1204 of the Gaming Act and our decision in Citizens Against Gambling Subsidies, Inc. v. Pennsylvaniа Gaming Control Board, 591 Pa. 312, 916 A.2d 624 (2007) (Citizens); and (2) whether Petitioners have standing to raise their claim that Section 1204 is unconstitutional. In addition to the two issues referenced in our order, Petitioners have raised an additional nine issues challenging various aspects of the grant of licensure. For the reasons that follow, we hold that Petitioners lack standing to appeal and lack standing to assert a constitutional challenge to Section 1204. Accordingly, we dismiss the petition for review and grant the application for summary relief. As we conclude that Petitioners lack standing, their remaining substantive challenges to the Board‘s order need not be addressed.
Preliminarily, we note that we have jurisdiction ovеr this appeal by virtue of Section 1204 of the Gaming Act, which provides as follows:
§ 1204. Licensed gaming entity application appeals from board
The Supreme Court of Pennsylvania shall be vested with exclusive appellate jurisdiction to consider appeals of any final order, determination or decision of the board involving the approval, issuance, denial or conditioning of a slot machine license. Notwithstanding the provisions of
2 Pa. C.S. Ch. 7 Subch. A (relating to judicial review of Commonwealth agency action) and42 Pa.C.S. § 763 (relating to direct appeals from government agencies), the Supreme Court shall affirm all final orders, determinations or decisions of the board involving the аpproval, issuance, denial or conditioning of a slot machine license unless it shall find that the board committed an error of law or that the order, determination or decision of the board was arbitrary and there was a capricious disregard of the evidence.
As asserted in the petition for review, Petitioners are four individuals3 and four civic associations who oppose the granting of Category 2 slot machine licenses to PEDP and HSP.4 Collectively, they argue that they have been aggrieved
Petitioner Society Hill Civic Association (Society Hill) maintains that it has standing to appeal because it participated in the slots parlor application process implemented by the Board by testifying at public input hearings as to the negative effects the community would suffer if the applications were granted including, increased traffic, crime, and excessive numbers of people coming into an 18th Century neighborhood that is not designed to handle the overflow. Society Hill asserts that it also participated with other community groups to finance a professional traffic report regarding PEDP‘s proposed facility.
Petitioner Queen Village Neighbors Association (Queen Village) asserts standing based on the fact that it has been recognized as the official representative of the residents of Queen Village and has various committees to deal with issues that affect the lives of its residents. The southeastern border of Queen Village is two blocks away from the proposed PEDP casino site. Queen Village participated in the proceedings before the Board in the same manner as did Society Hill and offered the same reasons in opposition to the license applications.
The final Petitioner, Whitman Council, Inc., protects the interests of individuals residing in the neighborhood of Whitman, also located in Philаdelphia. It alleges that it has a direct, substantial, and immediate interest in the Board‘s order granting the application for the slot machine license for the same reasons offered by the other organizations.
In support of their argument that they have standing to appeal the Board‘s order of licensure, Petitioners rely on Section 702 of the Administrative Agency Law, which provides as follows:
§ 702 Appeals
Any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).
In addition to standing under the Administrative Agency Law, Petitioners further argue that case law establishes their standing due to the fact that their proximity to the proposed facility gives them a direct interest in the subject matter. They cite Application of Gismondi Liquor License, 199 Pa.Super. 619, 186 A.2d 448 (1962) and Cashdollar v. Commonwealth of Pennsylvania, 143 Pa.Cmwlth. 650, 600 A.2d 646 (1991), for the general proposition that an appellant whose proximity to a licensed entity will cause him or her to experience adverse effects from that entity has standing to challenge the administrative order granting the entity‘s license.
As a starting point for our analysis, we examine our recent decision in Citizens. In Citizens, an individual and an organization that opposed the use of gaming revenues to subsidize slot machine licenses filed a petition for review of the Board‘s issuance of a conditional slot machine license to Presque Isle Downs, Inc. (Presque Isle) in Erie, Pennsylvania. Presque Isle intervened in the proceedings and applied for summary relief based on the petitioners’ lack of standing. The individual petitioner in Citizens was a resident of Erie County, a property owner, and a taxpayer; the organizational petitioner was an unincorporated association. The petitioners initially
Our Court ruled that the petitioners in Citizens did not have standing to appeal the Board‘s order because: (1) they did not pursue intervention to achieve party status in the administrative proceedings; and (2) they did not allege an interest that is direct. See Per Curiam Order dated February 7, 2007 at 90 WM 2006. In our opinion following entry of our per curiam order, we noted that generally, standing to appeal requires both status as a party and aggrievement. 916 A.2d at 628 (citing Pa.R.A.P. 501 (providing that [e]xcept where the right to appeal is enlarged by statute, any party who is aggrieved by an appealable order ... may appeal therefrom)). We recognized that Section 702 of the Administrative Agency Law did not require party status, but concluded that because the petitioners lacked a direct interest in the licensing proceeding, Section 702 did not support their appeal effort.7
Because the petitioners in Citizens essentially conceded a lack of a direct interest, we went on to examine whether taxpayer standing can be invoked as a basis to support a non-party apрeal of a licensing decision, absent intervention in the administrative proceedings. While emphasizing that Board regulations set forth a specific procedure for permissive intervention in 58 Pa.Code § 441.19(y), we stated:
We agree with the Board and Intervenor that permitting an appeal based on taxpayer standing alone absent intervention in the administrative proceedings is inconsistent with orderly rules of procedure and would foster untenable impracticalities in terms of the development of an essential record for consideration on appeal.
Petitioners attempt to distinguish Citizens. First, they contend that unlike the petitioners in Citizens, they do not rely on taxpayer standing, but rather on their direct interest in the proceeding arising from the alleged harm that they would suffer as a result of the Board‘s licensure order. They conclude that because of such direct interest, Section 702 applies, which does not require party status to appeal. Second, as noted, they assert a separate basis for standing arising from the proximity of the proposed casino sites to the residences of the individual Petitioners and those served by the remaining civic association Petitioners. Finally, Petitioners maintain that they were unaware of the intervention procedures set forth at 58 Pa.Code § 441.19(y) and that their failure to intervene was not a strategic tactic as occurred in Citizens.
The Board, along with Intervenors HSP and PEDP, argue that Petitioners lack standing for the same reasons as the petitioners in Citizens, i.e., due to their failure to intervene in the proceedings before the Board and their failure to assert a direct interest. They argue that because Petitioners did not utilize the established intervention procedure, they waived any right to appeal. The Board further contends that intervention was required because Section 702 of the Administrative Agency Law is inapplicable to appeals from adjudications of the Board as such direct appeals to this Court are expressly governed by Section 1204 of the Gaming Act and not Title 42. It further relies on that portion of Section 1204 which states Notwithstanding the provisions of
We first examine the applicability of Section 702 of the Administrative Agency Law. This is a matter of statutory construction under the Statutory Construction Act of 1972.
Likewise, Petitioners’ reliance on case law involving Section 702 is misplaced.9 As Section 702 is not applicable to the standing issue presented, the general requirement of both pаrty status and aggrievement as set forth in Pa.R.A.P. 501 therefore applies. See also 58 Pa.Code § 494.11(a) (providing that [a] party may appeal final orders of the Board in accordance with the act ....) (emphasis added).
This conclusion is in accord with our finding in Citizens that permitting an appeal absent intervention in the proceedings before the Board is inconsistent with orderly rules of procedure and would foster untenable impracticalities in terms of the development of an essential record for consideration on appeal. 916 A.2d at 629. Our Legislature recognized the time-sensitive nature of implementing the Gaming Act by assuring a streamlined direct appeal process to this Court. Allowing those who did not intervene before the Board to enter the proceedings for the first time at the appellate level would frustrate such process and lead to piecemeal litigation.
We emphasize that the regulations promulgated by the Board provide an adequate opportunity for a person to achieve party status through intervention if the person has an interest in the proceeding which is substantial, direct, and immediate and if the interest is not adequately represented in a licensing hearing. 58 Pa.Code § 441.19(y)(2); see also, id. at § 493.13 (Intervention). The regulations further establish a deadline and set forth a procedure to be followed by parties seeking to intervene in slot machine licensing hearings. Id. at
Having concluded that Petitioners lack standing to appeal because they were not a party to the proceedings before the Board and did not intervene, an examination of whether Petitioners have a direct, substantial, and immediate interest in the Board‘s licensure order is unnecessary.
The second issue for review is whether Petitioners have standing to challenge the constitutionality of Section 1204 of the Gaming Act pursuant to Section 1904, which provides that our Court shall have exclusive jurisdiction to hear any challenge to or to render a declaratory judgment concerning the constitutionаlity of this part.
The core concept in any standing analysis is that a person who is not adversely affected in any way by the matter he seeks to challenge is not aggrievеd thereby and has no standing to obtain a judicial resolution of his challenge. William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 280 (1975) (plurality).
It is well-established that
an individual can demonstrate that he is aggrieved if he can establish that he has a substantial, direct, and immediate interest in the outcome of the litigation in order to be deemed to have standing. In re Hickson, 821 A.2d at 1243; City of Philadelphia [v. Commonwealth of Pennsylvania], 575 Pa. 542, 838 A.2d [566] at 577. An interest is substantial if it is an interest in the resolution of the challenge which surpasses the common interest of all citizens in procuring obedience to the law. In re Hickson, 821 A.2d at 1243. Likewise, a direct interest mandates a showing that the matter complained of caused harm to the party‘s interest, id., i.e., a causal connection between the harm and the violation of law. City of Philadelphia, 838 A.2d at 577. Finally, an interest is immediate if the causal connection is nоt remote or speculative. Id.; see Kuropatwa v. State Farm Ins. Co., 554 Pa. 456, 721 A.2d 1067, 1069 (1998).
Petitioners’ sole contention in support of their assertion of standing is that they have been negatively impacted in some real and direct fashion by the standard of review set forth in Section 1204 of the Gaming Act because such standard makes it more difficult for them to overturn the Board‘s order and adjudication. This claim is unpersuasive. Because Petitioners lack standing to appeal, Section 1204‘s standard of review will never be applied to their claims. As Petitioners are not harmed by the standard of review set forth in Section 1204, they have no direct interest whatsoever in the constitutional challenge made thereto. Because there is nо causal connection between any harm and the violation of law, Petitioners’ interest is not immediate. Finally, Petitioners’ interest does not surpass the common interest of all citizens in procuring obedience to the law and therefore is not substantial. Accordingly, they lack standing to raise the claim.
In summary, because Petitioners have failed to intervene when procedures for intervention were available, we hold that they lack standing to appeal the Board‘s order granting conditional licenses to PEDP and HSP for Category 2 slot machine licenses in the City of Philadelphia. Petitioners further lack standing to challenge the constitutionality of Section 1204 of the Gaming Act because they have no direct, substantial, and immediate interest in such claim.
Having concluded that Petitioners lack standing, we: (1) grant HSP‘s application for summary relief; (2) dismiss Petitioners’ petition for review; (3) deny Petitioners’ request for confidential documents that comprise the record;14 (4) deny Petitioners’ application to lodge and their application for leave to file a second application to lodge; and (5) dismiss as moot PEDP‘s application to strike portions of Petitioners’ reproduced record.
ORDER
AND NOW, this 4th day of June, 2007, the Application for Summary Relief filed on behalf of HSP Gaming, LP, is granted. Petitioners’ Petition for Review is dismissed. Petitioner‘s request for confidential documents identified in the Certified List of All Documents that Comprise the Certified Record in Accordance With Pa.R.A.P.1952(b) is denied. Petitioners’ Application to Lodge and their Application for Leave to File a Second Application to Lodge are denied. The Application to Strike Portions of Petitioners’ Reproduced Record filed on behalf of Philadelphia Entertainment and Development Partners, LP is dismissed as moot.
Justice SAYLOR files a dissenting opinion joined by Justice CASTILLE.
SAYLOR, Justice, dissenting.
I respectfully differ with the majority‘s conclusion that Section 702 of the Administrative Agency Law has no application in the present setting. See Majority Opinion, at 182. Rather, I agree with Petitioners’ position that Section 702 and the other provisions of the associated subchapter apply, in the first instance, to all Commonwealth agencies. See
I also agree with Petitioners that Section 1204‘s silence with regard to standing means that Section 702 applies, not merely by default, but also as a matter of positive legislative mandate under Section 106 of Title 2 of the Pennsylvania Consolidated Statutes (Administrative Law and Procedure),
Since I would hold that Section 702 applies, I would also apply the interpretation of Section 702 in Application of El Rancho Grande, Inc., 496 Pa. 496, 437 A.2d 1150 (1981), pursuant to which party (or intervenor) status was not required to support an administrative appeal by one possessed with a direct interest in the subject matter of the administrative proceeding. See id. at 502, 437 A.2d at 1153. Furthermore, in light of Petitioners’ allegations concerning their (or their members‘) close geographic proximity to the gaming
As I am unable to support the dismissal of the appellate and original jurisdiction matters based on the reasoning embodied in the majority opinion, I respectfully dissent.
Justice CASTILLE joins this dissenting opinion.
Notes
The Board opposes the application to lodge. It argues that it would be improper for the Court to consider evidence that was not presented to the Board and weigh that evidence to determine if the Court would reach a different conclusion. It relies on Pa.R.A.P.1951(a), which provides that where the questions raised by a petition for review may be determined by the court in whole or in part upon the record before the government unit, the record shall consist of: (1) the order or other determination of the government unit sought to be reviewed; (2) the findings or report on which such order or determination is based; and, (3) the pleadings, evidence and proceedings before the government unit. Intervenors HSP and PEDP join in the Board‘s opposition to the application to lodge. They maintain that Petitioners lack standing to appeal and therefore should not be permitted to supplement the record on appeal with irrelevant information. The Intervenors cite Anam v. Workmen‘s Compensation Appeal Board, 113 Pa.Cmwlth. 483, 537 A.2d 932, 934 (1988), for the proposition that when an appellate court is petitioned to review an administrative agency decision, it may not consider matters not made part of the record before the administrative agency. The Intervenors emphasize that Petitioners should not be permitted to lodge documents due to perceived deficiencies in the record resulting from their own failure to intervene in the proceedings before the Board.
Because we agree with the Board and the Intervenors that the documents Petitioners seek to lodge were not presented to the Board and are irrelevant to our determination of standing, we shall deny the application to lodge.
Intervenor PEDP has filed an application to strike portions of the reproduced record not part of the certified record. Therein, it argues that Petitioners have improperly included in their reproduced record materials which are subject to their application to lodge. As we are not addressing the merits of Petitioners’ issues due to their lack of standing, PEDP‘s application to strike portions of Petitioners’ reproduced record shall be dismissed as moot.