[J-3-2024] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

STADIUM CASINO RE, LLC,

 Petitioner

 v. 

PENNSYLVANIA GAMING CONTROL 

BOARD,

Respondent

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No. 20 MM 2023

Appeal from the Order of the 

Pennsylvania Gaming Control Board 

at No. 9923-2021 dated February 7, 

2023

SUBMITTED: January 22, 2024

OPINION

JUSTICE DONOHUE DECIDED: July 17, 2024

Stadium Casino RE, LLC (“Stadium”) challenges the decision of the Pennsylvania 

Gaming Control Board (“Board”) to award a Category 4 slot machine license to SC 

Gaming OpCo, LLC and Ira Lubert (collectively “SC Gaming”).1 We affirm. 

Background 

Gaming came to Pennsylvania twenty years ago with the enactment of the Race 

Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. §§ 1101-1904. At that 

1 This Court has exclusive jurisdiction over appeals from licensing determinations. 4 

Pa.C.S. § 1204 (“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, the award, denial or conditioning of a table game operation certificate or the 

award, denial or conditioning of an interactive gaming certificate, an interactive gaming 

license, a casino simulcasting permit or a sports wagering certificate.”). 
[J-3-2024] - 2

time, the Gaming Act authorized three categories of slot machines licenses. Category 1 

licenses permit slot machine gaming at licensed racetrack facilities. Id. § 1302(a). 

Category 2 licenses permit slot machine gaming at a facility uncoupled from racetrack 

facilities “in a city of the first class, a city of the second class or a revenue- or tourismenhanced location.” Id. § 1304(a). Category 3 licenses are reserved for facilities located 

in “well established resort hotel[s]” that meet certain statutory criteria. Id. § 1305. 

ln 2017, the General Assembly authorized Category 4 slot machine licenses. See

Act 42 of 2017, P.L. 419 (Oct. 30, 2017) (“Act 42”).2 Through the amendments to the 

Gaming Act effectuated by Act 42, the General Assembly provided that the Board could 

issue up to ten Category 4 licenses to existing Category 1, 2 or 3 licensees in good 

standing. The legislation provided that the process to obtain a Category 4 slot machine 

license would begin with an auction, the winner of which would have the right to apply for 

a license. 4 Pa.C.S. § 1305.2(a). Initial auctions were required to be held between 

January 18, 2018 and July 31, 2018. Id. If a winning bid was not awarded through these 

initial auctions, the Board was to hold subsequent auctions through August 31, 2018. Id.

§ 1305.2(b). If any subsequent auction failed to produce a bid, the General Assembly 

provided that the Board could determine whether to conduct further auctions. Id. § 

1305.2(b.1). In addition to fixing a timeframe for the auctions, the General Assembly also 

set forth procedures for the auctions. Id. § 1305.2(c). 

Pursuant to Act 42, the Board held five auctions between January and July 2018, 

resulting in the award of four Category 4 licenses. One of the winning bidders, Mt. Airy 

Casino, was unable to obtain the necessary funding, and so the Board ultimately denied 

its application. Although not all of the ten statutorily-authorized Category 4 licenses were 

2 Category 4 slot machine licenses permit the operation of casinos with 300 to 750 slot 

machines. 4 Pa.C.S. § 1305.1. 
[J-3-2024] - 3

awarded, the Board conducted no further auctions before the statutory deadline of August 

31, 2018. 

In 2019, via an amendment to the Fiscal Code, the General Assembly instructed 

the Board to conduct up to five more auctions, between September 4, 2019 and 

December 31, 2019, for the outstanding Category 4 licenses. 72 P.S. § 1724.1-E(c)(1). 

The legislation also provided that if any auction failed to generate bids, the Board could

not hold any subsequent auctions. Id. § 1724.1-E(c)(2)(iv). In September 2019, the 

Board conducted an auction but received no bids. Accordingly, it held no more auctions. 

In May 2020, the General Assembly amended the Fiscal Code to authorize one

auction for any Category 4 licenses for which a bid had been submitted but the application 

denied. Id. § 1724.1-E(e)(1). The May 2020 amendments also expanded the pool of 

potential bidders; while in all previous auctions only Category 1, 2, or 3 licensees in good 

standing were permitted to bid, the General Assembly allowed persons with ownership 

interests in a slot machine licensee to participate in this auction. Id. § 1724.1-E(e)(2)(iv). 

As only the Mt. Airy application had been denied, only one license was up for bid. The 

Board held this auction, which is the center of the present dispute, on September 2, 2020. 

The September 2, 2020 auction generated bids only from Stadium and Lubert. 

Among other procedures established for the conduct of the auctions, Section 1305.2

requires the winning bidder to pay the bid within two days of the auction and to submit an 

application for the Category 4 license within six months of the date payment is made. 4 

Pa.C.S. §§ 1305.2(c)(7),(10)(i). Failure of the winning bidder to make timely payment 

gives the second-highest bidder the right to apply for the license. Id. § 1305.2(c)(8). 

Failure of the winning bidder to timely submit the application results in the forfeiture of the 

right to apply for the license, as well as the amount of the winning bid. Id. § 1305.2(10)(ii). 
[J-3-2024] - 4

Lubert submitted the winning bid of approximately $10 million. In conformance 

with Section 1305.2(c)(7), he timely wired the amount of the bid from his personal account 

to the Board. It is undisputed that although the funds were wired from Lubert’s account, 

he did not pay the entire amount himself, as various individuals and entities contributed 

funds toward the payment of the winning bid. Following payment of the bid amount, 

Lubert began the application process. In January 2021, between the Board’s acceptance 

of Lubert’s bid and the submission of his application, Bally’s Corporation announced that 

it signed an agreement with Lubert to jointly design, develop, construct and manage the 

casino planned for the Category 4 license. In March 2021, the application for the 

Category 4 license was submitted by SC Gaming, an entity that Lubert represented he 

wholly owned. Later that month, Stadium’s counsel began sending a series of letters to 

the Board, copied to Lubert’s counsel, setting forth concerns that SC Gaming was 

ineligible to apply for a Category 4 license because Lubert’s bid was funded by persons 

not authorized to participate in the auction. The Board and counsel for Lubert responded. 

Correspondence among these three continued as the application process proceeded. 

Commonwealth Court Action

On July 21, 2021, Stadium filed a petition for review in the Commonwealth Court’s 

jurisdiction naming both the Board and SC Gaming as respondents. Stadium sought

declarations that Lubert’s bid was invalid because he did not pay the entire amount with 

his own funds and that the Board was without the authority to consider SC Gaming’s 

application. Stadium also sought an injunction prohibiting the Board from further 

considering SC Gaming’s application. Additionally, Stadium prayed for an exercise of the 

court’s mandamus power, requesting an order that would require the Board to allow 

Stadium to apply for the Category 4 license or, in the alternative, require the Board to 

conduct another auction. The Board and SC Gaming filed preliminary objections to the 
[J-3-2024] - 5

petition. In March 2022, the Commonwealth Court entertained argument on the 

preliminary objections, although it would not rule on them for nearly a year. 

Licensing Proceedings

Meanwhile, the Board moved forward with SC Gaming’s application through its 

licensing proceedings.

3 In August 2022 (while the preliminary objections were still 

pending), Stadium sought permission to intervene in the licensing proceedings to raise 

claims identical to those that it raised in the Commonwealth Court concerning SC 

Gaming’s eligibility to apply for the license and the Board’s ability to consider its 

application. Stadium also requested discovery from the Board and to present evidence 

through witnesses at the licensing hearing. 4 SC Gaming objected to the intervention on 

the basis that Stadium was attempting to usurp the Board’s role and improperly disrupt 

the administrative proceedings. In December 2022, following a hearing, the Board 

granted Stadium’s request to intervene. It denied Stadium’s discovery request and limited 

its participation to the inclusion of its petition for intervention and a transcript of December 

3 The proceedings included investigations by the Board’s Bureau of Investigation and 

Enforcement (“BIE”) and Office of Enforcement Counsel (“OEC”), public hearings and 

periods of comment. The Gaming Act requires the establishment of the BIE which “shall 

be independent of the [B]oard” and responsible for investigating all applicants and 

reviewing all applications for licenses, permits or registrations provided for under the 

Gaming Act. 4 Pa.C.S. §§ 1517(a),(a.1). BIE’s authority endures, as it also “conducts 

reviews of [] licensed entit[ies] as necessary to ensure compliance” with the terms of the 

Act. Id. § 1517(a.1)((6). OEC is a division within BIE that “act[s] as the prosecutor in all 

noncriminal enforcement actions initiated by [BIE]” and advises BIE on “all matters, 

including the granting of licenses permits or registrations, the conduct of background 

investigations, audits and inspections and the investigation of potential violations” of the 

Act. Id. § 1517(a.2). When establishing BIE, the General Assembly instructed the Board 

to “promulgate regulations and adopt procedures necessary to ensure that [BIE] is a 

distinct entity[.]” Id. § 1516.1. 

4 Because the Gaming Act requires some of the information provided in connection with 

slot machine license applications to remain confidential, see 4 Pa.C.S. § 1206(f), the 

Board opposed Stadium’s attempts to gain access to that information. Nonetheless, the 

parties eventually entered into a confidentiality stipulation that allowed Stadium access to 

information compiled by the Board in the licensing proceedings. 
[J-3-2024] - 6

2022 hearing in the record. The Board also allowed Stadium fifteen minutes to address 

the Board in oral argument at the upcoming public licensing hearing.5 Thus, Stadium

participated in the January 25, 2023 hearing on SC Gaming’s application. Following this 

hearing and despite Stadium’s opposition, the Board granted SC Gaming’s application 

and awarded it the Category 4 slot machine license. Board Order, 1/25/2023. The Board 

subsequently issued an adjudication in support of its order. 

The adjudication, dated February 7, 2023, addressed Stadium’s concerns and 

explained the Board’s rationale for rejecting them. With regard to Stadium’s concern that 

SC Gaming was controlled by persons not authorized to hold a Category 4 slot machine 

license, the Board explained its findings that Lubert formed SC Gaming for the purpose 

of holding the Category 4 slot machine license, that SC Gaming has been wholly owned 

by Lubert since its formation, and that Lubert continued to be the sole owner of SC 

Gaming. The Board acknowledged SC Gaming’s disclosure of an anticipated change in 

control that would be initiated at some point after the award of the license and that the 

change in control would involve multiple investors, including Bally’s Corporation, the 

project’s developer and manager. Board Adjudication, 2/7/2023, at 18. The Board 

explained that any change in control would be contingent upon Board approval and each 

individual or entity independently qualifying for licensure, including successful application 

processes and background checks. Id. The Board also addressed the statutory eligibility 

criteria set forth in the May 2020 Fiscal Code amendments (72 P.S. § 1724.1-E) and 

found that SC Gaming satisfied each. Id. at 20-21. 

5 On January 23, 2023, two days before the licensing hearing, Stadium sought leave to 

supplement the record with an expert report. The Board denied the request because of 

its late hour and the lack of time for the other parties to respond. Board Adjudication, 

2/7/2023, at 15 n.6. 
[J-3-2024] - 7

Subsequent Proceedings

On February 8, 2023, the Commonwealth Court overruled SC Gaming’s and the 

Board’s preliminary objections and ordered them to file answers within thirty days. On 

February 23, 2023, Stadium appealed the Board’s licensing decision by filing a petition 

for review in this Court. See 4 Pa.C.S. § 1204. Shortly thereafter, Stadium sought to stay 

that appeal in favor of the Commonwealth Court proceedings.6 One day later, SC Gaming 

and the Board petitioned the Commonwealth Court to certify its order overruling 

preliminary objections for interlocutory appeal and to stay further proceedings in that 

court. The Commonwealth Court denied this request, which spurred SC Gaming and the 

Board to seek permission from this Court to appeal the Commonwealth Court’s order and, 

separately, an exercise of this Court’s extraordinary jurisdiction over the proceedings in 

the Commonwealth Court. As those applications were pending, the Commonwealth 

Court granted the Board’s request to stay. In September 2023, recognizing the identity 

of the issues pressed by Stadium in its appeal to this Court and the action it instituted in 

the Commonwealth Court, this Court exercised extraordinary jurisdiction over the 

Commonwealth Court proceedings, stayed the matter pending in that court, denied 

Stadium’s request to stay its appeal in this Court, directed the matter to be submitted on 

briefs and established a briefing schedule. Per Curiam Order, 9/6/2023.7 

Stadium’s Claims Before this Court

Stadium presents the following issues for our review:

1. Did the Board exceed its statutory authority and fail to 

comply with mandatory directives in the Gaming Act by (a) 

considering SC Gaming’s application for this Category 4 slot 

machine license, where persons prohibited from applying 

6 SC Gaming and the Board opposed this requested stay. 

7 The Court later denied Stadium’s request for expedited oral argument and 

reconsideration of our September 6, 2023 order. Per Curiam Order, 2/14/2024. 
[J-3-2024] - 8

hold ownership interests in SC Gaming, and (b) accepting 

a bid payment for the right to apply for this license funded 

by those same persons, rather than awarding the right to 

apply to Stadium (the second-highest bidder), or conducting 

another auction for the right to apply, pursuant to Section 

1305.2(c)(8) and (10) of the Gaming Act?

2. Did the Board err and abuse its discretion by relying on an 

arbitrarily narrow conception of “ownership” that is 

inconsistent with the Gaming Act, this Court’s 

jurisprudence, and the record evidence?

3. Did the Board err and abuse its discretion by denying 

Stadium an opportunity to develop a record regarding the 

threshold issues of statutory authority, the bid payment, and 

ownership?

Stadium’s Brief at 6-7. 

Although Stadium presents three separate issues, it argues them as one. In broad

strokes, Stadium argues that in exchange for contributions to the payment of the winning 

bid amount, Lubert gave ownership interests in SC Gaming to persons and entities that 

are not eligible to bid on Category 4 slot licenses, thereby divesting the Board of the 

jurisdiction to entertain its application and requiring the Board to allow Stadium to apply 

for the license or, failing that, to hold another auction for the license. In particular, Stadium 

argues that Lubert “commoditiz[ed] his status as a legally-authorized bidder by issuing 

ownership interests in his bid and casino project to persons prohibited from bidding or 

applying for this license.” Id. at 33 (emphasis omitted). He did this, Stadium alleges, by 

pooling investor funds in the name of an entity owned by one of the investors, LandCo, 

who then assigned his ownership of LandCo to Lubert one day before the auction. 

Stadium asserts that Lubert established a bank account two weeks prior to the auction

into which the individual investors wired funds to pay the bid. This, Stadium argues, 

violated the requirement that the winning bidder pay the bid with his own funds or funds 

obtained in the ordinary course of business. Id. (citing 4 Pa.C.S. § 1305.2(c)(7)). 
[J-3-2024] - 9

It is within this argument that Stadium raises concerns about the ownership of SC 

Gaming, contending that in exchange for their contributions, Lubert gave investors, who 

were otherwise ineligible to apply for a Category 4 slot machine license, ownership 

interests disguised as debt in the various entities created in connection with his proposed 

casino project.

8 As detailed above, Stadium unsuccessfully raised this issue before the 

Board in the licensing proceedings. Faulting the Board’s decision, Stadium argues that 

the Board erroneously focused exclusively on ownership interests akin to common stock. 

Stadium argues that this is too narrow a definition, as it runs afoul of the Gaming Act and 

this Court’s precedent, which define ownership in broad terms, and is simply not how 

ownership “functionally works.” Id. at 35. Accordingly, Stadium premises its claim that 

the Board lacked jurisdiction on establishing unauthorized ownership of the applicant 

entity, SC Gaming. 

Beginning with the Gaming Act, Stadium explains that “ownership interest” and 

“financial interest” are defined in other sections of the Act and given “significantly broader” 

definitions than the one urged by the Board here. Id. at 36 (citing 4 Pa.C.S. §§ 1201(n), 

1512). Stadium also points to a decision from this Court in which we “broadly construed 

ownership and financial interests under the Gaming Act, consistent with the General 

Assembly’s intentions.” Id. (citing Sugarhouse HSP Gaming, L.P. v. Pa. Gaming Control 

8 It is Stadium’s position that the debt bears “every indicia of ownership” because the 

investments accrue no interest and do not require repayment, they are treated as equity 

for tax purposes, and give each investor and Lubert co-equal control over the SC Gaming 

entities. Stadium’s Brief at 34. Stadium points out that each investor is required to invest 

additional funds in the same manner equity holders can be required to invest in the 

companies they own and that the individual investor’s debt automatically becomes 

membership in a particular entity, SC NewCo, upon the award of the license to SC 

Gaming or after five years, whichever occurs first. Id. Stadium represents that Bally’s

Corporation has a springing 50% ownership in HoldCo, which owns SC Gaming, and will

automatically convert to common stock as soon as SC Gaming obtains the license and 

all necessary approvals. Id. 
[J-3-2024] - 10

Bd., 162 A.3d 353, 376-77 (Pa. 2017)). It points to a case involving a Category 3 license, 

in which this Court adopted a broad interpretation of ownership, finding that because 

equitable ownership was certain to convert to legal ownership, the equitable ownership 

sufficed to satisfy the Gaming Act’s ownership requirement. Id. at 37-38 (discussing 

Greenwood Gaming and Ent., Inc. v. Pa. Gaming Control Bd., 15 A.3d 884, 889 (Pa. 

2011)).9 

Stadium contends that Lubert acted as a “Trojan horse for hire” by parceling out 

ownership interests in exchange for funding, and in so doing, gave entities unauthorized 

by the General Assembly a means by which to apply for a Category 4 slot machine 

license. Because this runs afoul of Section 1305.2(c) (providing procedures for Category 

4 slot machine license auctions), Stadium argues, the Board was without jurisdiction to 

consider SC Gaming’s application. Id. at 43. In this vein, Stadium characterizes

satisfaction of the bid payment requirements in Section 1305.2 – specifically, the payment 

of the winning bid in conformance with Section 1305.2 or the Board’s reassignment of the 

right to apply for the license to the second-highest bidder if the winning bidder does not 

comply - as a “threshold jurisdiction issue” that must be satisfied before the Board can 

begin the licensing proceedings. Id. at 45. In support of this theory, Stadium argues that 

the plain language of Section 1305.2 affords no discretion to the Board but rather 

mandates that certain circumstances result in a forfeiture of the right to apply and that the 

Board must award the right to apply to another or conduct another auction. Id. at 46 

(citing 4 Pa.C.S. §§ 1305.2(c)(8), (10)(ii)). Stadium underscores that “[t]his forfeiture is 

9 As additional support for its interpretation, Stadium points to the expert report that it 

sought to add to the record during the Board’s proceedings, in which its expert opines 

that investors frequently use instruments such as convertible debt, exchangeable debt, 

and springing interests to finance ventures and that these instruments are considered to 

be in substance ownership or control interests. Stadium’s Brief at 40-41. It also points 

out that state and federal law define ownership in terms broader than acquisition of 

common stock. Id. at 41. 
[J-3-2024] - 11

not contingent or conditioned upon any ‘eligibility’ investigation; it is instantaneous, after 

the bidder has failed to pay its bid or apply for the license in the time proscribed [sic]. ... 

Immediately thereafter, the next-highest bidder (in this case, Stadium) has a vested 

statutory interest in the Board fulfilling its obligation to award the right to apply to that 

bidder, or to conduct another auction.” Id. Stadium insists that its challenge to the Board’s 

authority to consider SC Gaming’s application and its compliance with the previouslydescribed mandatory statutory directives are “threshold questions” that must precede any 

consideration of whether SC Gaming satisfies the licensing eligibility criteria found in 

Sections 1310, 1313 and 1325 of the Gaming Act. Id. at 47.

In summary, Stadium reiterates that the Board failed to comply with the mandatory 

statutory directives of Section 1305.2 in two ways. First, because Lubert did not pay the 

winning bid himself, he violated Section 1305.2(c)(7), and as a result, the Board was 

statutorily obligated to give Stadium the right to apply for the license. Id. at 56. Second, 

because SC Gaming applied for the license in violation of the restrictions in the May 2020 

Fiscal Code amendments (as it was owned by persons not permitted to bid), Lubert failed 

to comply with Section 1305.2(c)(10)(i), and therefore forfeited his right to apply for the 

license, which obligated the Board to hold another auction or give Stadium the right to 

apply for the license. Id. If this Court is of the mind that there are not sufficient facts of 

record to resolve the issues it presents, Stadium asks that we remand for adversarial 

proceedings at which “the fundamental question of ownership can be decided on a full 

record.” Id. at 57. 

The Board disagrees with Stadium’s characterization of its challenge as a matter 

of jurisdiction to consider SC Gaming’s application. It emphasizes that the Gaming Act 

gives it the power and duty to perform background investigations on applicants, as well 

as the discretion to deny or revoke a license upon finding that an application provided 
[J-3-2024] - 12

false or misleading information or otherwise failed to comply with the Act or the Board’s 

rules and regulations. Board’s Brief at 24 (citing 4 Pa.C.S. § 1207(1)). The Board 

describes the BIE and OEC, which investigate all applicants and applications for slot 

machine licenses. Id. at 25. Pursuant to the Board’s regulations, applicants are required 

to provide the BIE and OEC with all information requested and authorize these offices to 

issue subpoenas and take sworn statements of applicants and other witnesses. Id. at 25-

26. The BIE and OEC, by statute, are independent of the Board. Id. at 25 (quoting 4 

Pa.C.S. § 1517(a.1)(2)). 

Having laid this background, the Board contends that Stadium is conflating the 

concepts of statutory authority and jurisdiction. It distinguishes between statutory 

jurisdiction and statutory authority to act, explaining that it unquestionably has the 

authority to consider the application because it is the administrative body created to make 

licensing decisions, but no authority to approve the application if SC Gaming does not 

meet the statutory criteria for a Category 4 slot machine license. Id. at 29. In a similar 

vein, the Board accuses Stadium of conflating the concepts of eligibility and suitability. 

The Board explains that these are distinct concepts: eligibility concerns “objective 

statutory/regulatory based” criteria, while suitability concerns “more subjective” criteria 

outlined in regulations, including good character, honesty and integrity. Id. at 29-30. 

The Board then responds to Stadium’s arguments based on ownership. 

Preliminarily, it explains that the only reference to ownership in the May 2020 Fiscal Code 

amendments is a requirement that the bidder have an ownership interest in a 

Pennsylvania casino when making a bid and that it is undisputed that Lubert met this 

qualification. Id. at 36. It rejects Stadium’s attempt to equate financial interests with 

ownership, allowing that while that might be an accurate proposition in some situations, 

the facts here do not support such a conclusion. The Board explains, “While [] Lubert’s 
[J-3-2024] - 13

colleagues may have financial interests in the State College casino project, these financial 

interests do not, at present, equate to an ownership interest and are not in any way 

dispositive of an ownership analysis, which is the only question at issue.” Id. It details 

the ownership structure of SC Gaming, as disclosed by Lubert and SC Gaming in its 

application and as determined through its investigation. Id. at 40-45. The Board 

acknowledges Stadium’s argument regarding the potential future interests contemplated 

in the debt financing; however, the Board explains that the Gaming Act allows postlicensure change in ownership and does not prohibit arrangements to obtain equity 

interests in the future. Id. at 46-47 (discussing 4 Pa.C.S. § 1328).10

SC Gaming also takes the position that Stadium’s attempt to construct a 

jurisdictional argument fails. It points to the Gaming Act’s provisions that vest the Board 

with sole regulatory authority over gaming and related activities and grant it the power to 

review and approve applications for slot machine licenses. SC Gaming’s Brief at 24-25. 

SC Gaming points out that although Stadium claims that it is raising a jurisdictional issue 

that must be addressed before the Board can initiate the licensing proceeding, Stadium 

provides no statutory or regulatory authority, or case law, in support of that statement. Id.

at 26. To the contrary, it argues, courts regularly reaffirm agencies’ ability to determine 

the limits of their jurisdiction and statutory authority. Id. SC Gaming argues that the 

substance of Stadium’s arguments rise to no more than a dispute over the Board’s 

findings that Lubert paid the winning bid in conformance with Section 1305.2(c)(7) and 

10 The Board also addresses what it calls Stadium’s “willful avoidance” of the 

administrative licensing process, shedding light on how Stadium’s correspondence with 

its staff and the filing of the Commonwealth Court action triggered a conflict and the 

recusal of its Office of Chief Counsel from the licensing proceedings. Board’s Brief at 49-

50. The Board brings to the forefront that it granted Stadium’s intervention petition, 

accepted its timely submissions into the record, allowed Stadium to participate in 

argument at the final licensing hearing, and addressed its concerns in its adjudication. Id.

at 52. 
[J-3-2024] - 14

that SC Gaming is wholly-owned by Lubert such that it was eligible to apply for the 

Category 4 slot machine license per Section 1305.2(c)(10)(i). Id. at 29. 

Nonetheless, SC Gaming refutes these arguments in turn. As the Board did, SC 

Gaming argues that Lubert satisfied the statutory requirements imposed on the winning 

bidder and that consideration of whether the applicant is a permissible licensee is part of 

the licensure proceedings that follow the submission of the application. Id. at 31-46. It 

points to the “multi-year fact-finding investigation regarding SC Gaming’s and [] Lubert’s 

eligibility and suitability” under the Gaming Act, as well as the fact that the Board permitted 

Stadium to intervene and participate in the licensing proceedings specifically so that it 

could present evidence to prove that SC Gaming was ineligible to be a licensee. Id. at 

45. The Board’s explanation is “more than sufficient” for this Court to affirm the Board’s 

approval of SC Gaming’s application. Id. at 45-46. Considering the robust statutory and 

regulatory procedures that have created an extensive vetting process for slot machine 

license applications, as well as an applicant’s “affirmative, statutory duty” to cooperate 

with the OEC and BIE, SC Gaming balks at Stadium’s suggestion that it should have the 

ability to initiate an adversarial process to test SC Gaming’s compliance with the law and 

fitness to hold a license. Id. at 49. SC Gaming refutes Stadium’s claim that there is no 

record from which to evaluate its claims regarding Lubert’s bid payment and the 

ownership structure of SC Gaming, pointing to their “voluminous submissions, OEC’s and 

BIE’s subsequent investigation, the extensive Suitability Report and supporting 

investigatory materials” as well as the Board’s detailed adjudication. Id. at 49-50.11 The 

very topics for which Stadium sought discovery were the subject of OEC’s and BIE’s 

investigations and addressed extensively in their resulting report. Id. at 51. Because of 

11 SC Gaming reiterates the Board’s point that the procedures for intervention in licensing 

proceedings are provided in the Board’s regulations and that they provide no right to 

discovery for an intervening party. SC Gaming’s Brief at 50-51. 
[J-3-2024] - 15

the extensive record and investigation into the areas that caused Stadium concern, SC 

Gaming contends, the Board was within its discretion to deny Stadium’s request for 

discovery. Id. 

Analysis

As noted above, the General Assembly vested this Court with exclusive jurisdiction 

over appeals from any final order, determination or decision of the Board that involves the 

approval, issuance, denial or conditioning of a slot machine license. 4 Pa.C.S. § 1204. 

Our review is restricted to determining whether the Board has “erred as a matter of law[] 

or [] acted arbitrarily and in capricious disregard of the evidence.” Pocono Manor Invs., 

LP v. Pa. Gaming Control Bd., 927 A.2d 209, 216 (Pa. 2007). Concerning alleged errors 

of law, as always, our standard of review is de novo and the scope of our review is plenary. 

Id. A capricious disregard of the evidence is found “when there is a willful and deliberate 

disregard of competent testimony and relevant evidence which one of ordinary 

intelligence could not possibly have avoided in reaching a result.” Id. (internal citation 

omitted). 

Stadium argues that the Board exceeded its jurisdiction by considering SC 

Gaming’s application before determining the legitimacy of Lubert’s bid. It is Stadium’s 

position that the Board should have determined, prior to reviewing SC Gaming’s

application, whether Lubert complied with the May 2020 Fiscal Code amendments when 

placing his bid (specifically, the eligibility of the persons and entities with interests in SC 

Gaming to take part in the auction). See Stadium’s Brief at 47 (calling its challenge to the 

Board’s compliance with statutory directives of Section 1305.2(c) a “threshold”

jurisdictional question). Although eligibility to participate in the auction is defined in 

Section 1724.1-E(e) of the Fiscal Code, Stadium grounds its challenge in Section 

1305.2(c) of the Gaming Act, arguing that Lubert’s and the Board’s failure to comply with 
[J-3-2024] - 16

its terms divested the Board of jurisdiction to consider SC Gaming’s application. Stadium 

relies on the fact that the process for the award of the other three categories of slot 

machine licenses is by application alone, without a bidding process, and suggests that 

because the General Assembly created a different process for Category 4 licenses, 

compliance with Section 1305.2(c) is a “gating” provision which must be satisfied so as 

to vest the Board with the jurisdiction to act on the winning bidder’s application. See 

Stadium’s Brief at 44. This is an issue of statutory interpretation, and so our consideration 

is guided by the well-established principles of statutory construction. Chief among those 

principles is that our objective is to discern the intent of the General Assembly and to give 

effect thereto. 1 Pa.C.S. § 1921(a). “The polestar indication of the legislature's intent is 

the plain language of the statute[,]” and where that language is clear and unambiguous, 

we may not disregard its plain meaning under the guise of pursuing its spirit. SugarHouse 

HSP Gaming, L.P., 162 A.3d at 375. 

Through Act 42, the General Assembly authorized ten Category 4 slot machine 

licenses and prescribed the manner in which the Board was to award them. Unlike the 

procedure used for the other categories of slot machine licenses, the General Assembly 

provided that the ability to apply for Category 4 slot machine licenses would be 

determined through auctions. 4 Pa.C.S. §§ 1305.1, 1305.2. Section 1305.2, “Conduct of 

Auctions” establishes when and how the Board shall conduct these auctions and direct 

that the fees generated therefrom shall be deposited in the General Fund. Id. §§ 

1305.2(a),(b), (b.1),(d). Subsection (c) sets forth the procedures for these auctions: 

(c) Auction procedures.--The following shall apply to the auctions conducted by the 

[B]oard:

(1) Auctions shall be conducted using a competitive bidding 

process.

(2) The [B]oard shall adopt procedures to prevent bid rigging 

and collusion among bidders and establish auction conditions, 
[J-3-2024] - 17

processes or procedures. The procedures shall not be subject 

to review under section 205 of the act of July 31, 1968 (P.L. 

769, No. 240), referred to as the Commonwealth Documents 

Law, sections 204(b) and 301(10) of the act of October 15, 

1980 (P.L. 950, No. 164), known as the Commonwealth 

Attorneys Act, or the act of June 25, 1982 (P.L. 633, No. 181), 

known as the Regulatory Review Act.

(3) The board shall require each prospective bidder to submit 

a bond or letter of credit in the amount of the minimum bid 

under paragraph (5).

(4) Each auction shall be conducted separately.

(5) The minimum bid shall be $7,500,000. In no case may the 

board accept a bid that is less than $7,500,000.

(6) If the auction does not result in a winning bid, the highest 

bidders shall have one hour to submit a final and best bid to 

the board at the same public meeting. If the submission of the 

final bids does not result in a winning bid, the highest bidders 

shall continue to submit final bids, in an amount not less than 

or equal to a prior bid submission, until a winning bid is 

received.

(7) The winning bidder shall pay to the board the bid amount 

within two business days following the auction. Payment shall 

be by cashier's check, certified check or any other method 

acceptable to the board.

(8) If the winning bidder does not pay the bid amount within 

the time period required under paragraph (7), the second 

highest bidder shall be awarded the right to select a Category 

4 location and apply for the Category 4 slot machine license, 

so long as the second highest bidder's bid amount meets the 

requirements of paragraph (5). If the second highest bidder 

declines the award or is ineligible to win, the board shall 

conduct another auction.

(9) Upon winning an auction, the winning bidder at the public 

meeting shall select the Category 4 location at which it intends 

to operate the Category 4 licensed facility. The board shall 

post the Category 4 location selection on its publicly 

accessible Internet website. The selected Category 4 location 

may not be selected by a subsequent winning bidder.
[J-3-2024] - 18

(10)(i) The winning bidder shall submit an application for the 

Category 4 slot machine license within six months of the 

payment of the winning bid amount. The board may, in its 

discretion, extend this deadline for a period not to exceed two 

additional months.

(ii) Failure of the winning bidder to submit an 

application within the time under subparagraph (i) shall result 

in forfeiture of the bidder's right to apply for the license and 

forfeiture of the winning bid amount. The board shall conduct 

another auction at a time determined by the board.

(11) Issuance of a Category 4 slot machine license by the 

board to a winning bidder shall be contingent upon the 

bidder's ability to meet the requirements of this part.

(12) In the event the board denies the application for the 

Category 4 slot machine license filed by the winning bidder, 

the winning bidder shall be entitled to a return of 75% of the 

winning bid amount the winning bidder submitted under 

paragraph (7). A refund under this paragraph shall be paid 

from the General Fund. The board shall conduct another 

auction at a time determined by the board.

(13) If the board approves the application for the Category 4 

slot machine license filed by the winning bidder and the 

applicant fails to open and operate the Category 4 licensed 

facility, the bid amount submitted under paragraph (7) is 

forfeited. The board shall conduct another auction at a time 

determined by the board.

4 Pa.C.S. § 1305.2(c). 

By its plain language, Section 1305.2(c) imposes obligations on both the winning 

bidder and the Board. As we have explained, Stadium argues that compliance with 

subsection (c)’s terms is “a gating jurisdictional issue” that the Board must resolve before 

it can initiate licensing proceedings. Stadium’s Brief at 43. In this respect, it advances 

the argument that because the General Assembly created an auction procedure for these 

licenses in Section 1305.2(c), the Board is without discretion to deviate from those 

procedures such that it lacks jurisdiction to engage in licensing proceedings until

subsection (c)’s requirements have been fulfilled. See id. at 43-47. 
[J-3-2024] - 19

We agree with Stadium that the Board is bound to comply with Section 1305.2 in 

its entirety, including subsection (c). We also agree that applicants are required to comply 

with the provisions of subsection (c) that apply to them. See 4 Pa.C.S. § 

1305.2(c)(7),(9),(10). We do not agree, however, that Section 1305.2(c) is a jurisdictional 

provision that limits the Board’s ability to act in the manner that Stadium contends.

Jurisdiction relates only to the competency of a court or administrative body to determine 

controversies of the general class to which the case then presented for its consideration 

belongs, whereas authority relates to the ability of the decision-making body to order or 

effect a certain result. Domus, Inc. v. Signature Bldg. Sys. of PA, LLC, 252 A.3d 628, 

636 (Pa. 2021); Del. River Port Auth. v. Pa. Pub. Util. Comm'n, 182 A.2d 682, 686 (Pa. 

1962). The Board is the administrative body singularly competent to conduct the 

Category 4 slot machine license auctions and to control the slot machine licensing 

application process and proceedings. 4 Pa.C.S. § 1202(a) (“The [B]oard shall have ...

sole regulatory authority over every aspect of the authorization, operation and play of slot 

machines, table games and interactive gaming devices and associated equipment”); id. 

§ 1305.2; see also 72 P.S. § 1724.1-E(c),(e) (amendment to the Fiscal Code authorizing 

the Board to conduct Category 4 slot machine license auctions). Far from questioning 

the Board’s competency to conduct Category 4 slot machine license auctions, Stadium’s 

argument challenges only the Board’s ability to proceed with the application process and 

licensing proceedings before satisfying Section 1305.2(c)’s requirements. 

Stadium’s argument in this regard seems to focus on subsections (c)(7), (8) and 

(10)(ii). Subsection (c)(7) requires the auction winner to pay the bid amount within two 

business days by cashier’s check, certified check or any other method the Board deems 

to be acceptable. 4 Pa.C.S. § 1305.2(c)(7). Subsection (c)(8) requires the Board to 

award the application right to the second-highest bidder or hold another auction if the 
[J-3-2024] - 20

winning bidder does not timely make payment. There are no further requirements in this 

provision. Subsection (c)(10)(ii) provides that the winning bidder’s failure to timely submit 

its application results in the forfeiture of the right to apply for the license and the bid 

amount, and requires the Board to hold another auction. Id. § 1305.2(c)(10)(ii). All of 

these subsections involve circumstances under which a winning bidder could be stripped 

of the right to apply for the license. But there is no requirement or mechanism in them, 

or elsewhere in Section 1305.2(c), authorizing the Board to verify that the winner was 

eligible to bid and therefore to proceed with the auction, application and licensing 

proceedings. For Stadium’s argument to succeed, we would have to read such a 

provision into the statute. This, we surely cannot do. See Ursinus Coll. v. Prevailing 

Wage Appeals Bd., 310 A.3d 154, 171 (Pa. 2024) (recognizing that courts should not 

insert terms into a statute that are not there). 

Stadium’s argument also fails from a practical standpoint. As the winning bidder, 

Lubert was required to submit payment within two business days by a statutorily-permitted 

method and to submit an application within six months of the date he paid the winning bid 

amount. 4 Pa.C.S. §§ 1305.2(c)(7), (10)(i). No one disputes that he satisfied these 

criteria. Stadium’s quarrel is with the Board’s failure to consider the eligibility of Lubert’s 

bid based on its allegations concerning the ownership of SC Gaming before progressing 

with the application process and licensing proceedings. Stadium insists that to comply 

with subsection (c), the Board was required, at that preliminary juncture, to discern

whether Lubert complied or whether Stadium, as the second-highest bidder, had a right 

to apply for the license by virtue of subsection (c)(8), and that the Board could not proceed 

until it made that determination. To do so, Stadium argues, the Board needed to develop 

a record to settle this “gating” issue. Again, we resort to the language of the statute, which 
[J-3-2024] - 21

provides no means for the development of a record or other measures to assert potential 

rights as a second-highest bidder at an auction. 

The absence of a mechanism by which to challenge a bidder’s eligibility at the 

auction stage is not surprising, considering the in-depth investigation performed by 

various divisions of the Board to vet slot machine license applicants. The Gaming Act 

imposes significant requirements concerning both the content and scope of slot machine 

license applications. See 4 Pa.C.S. §§ 1306, 1308-1309. These include detailed financial 

fitness requirements, compelling the disclosure of information to prove, by clear and 

convincing evidence, the financial stability, integrity and responsibility of all applicants and 

financial backers. Id. § 1313. Through this proceeding, the ownership structure of any 

entity proposed to hold a slot machine license is scrutinized. Moreover, third parties have 

the ability to intervene in licensing proceedings, as Stadium did here. See 58 Pa. Code 

§ 441a.7(z). The Board agreed with Stadium that its interests were not adequately 

represented by the Board (by virtue of BIE and OEC), and so it permitted Stadium to 

participate. Board Adjudication, 2/7/2023, at 15-16. In consideration of these existing 

methods of review, we are hardly surprised that another layer of review was not 

sandwiched between the auction stage and the commencement of the application and 

licensing process.12 

12 As discussed, Stadium devotes significant effort to challenging the Board’s factual 

determination that SC Gaming is wholly owned by Lubert. Stadium’s Brief at 32-43, 46-

47. Stadium challenges the ownership of SC Gaming to support its claim that Lubert and 

his investors did not comply with Section 1305.2(c). See id. at 43, 46-47. To be clear, 

Stadium challenges SC Gaming’s ability to participate in the auction, not the subsequent 

award of the license. Cf. Sugarhouse HSP Gaming, LP v. Pennsylvania Gaming control 

Bd., 136 A.3d 457 (Pa. 2016) (addressing challenge to award of Category 2 slot machine 

license based on finding related to applicant’s ownership and financial interests). 
[J-3-2024] - 22

Conclusion

Stadium argues that Section 1305.2(c) is a jurisdictional provision, satisfaction of 

which must be met before the Board can consider an application submitted by the winner 

of an auction for a Category 4 slot machine license. We disagree, finding that Section 

1305.2(c) only defines the Board’s conduct in connection with Category 4 slot machine 

license auctions, not its competency to preside over slot machine auctions, application 

and licensing proceedings. We therefore affirm the Board’s determination and dismiss 

the action pending in the Commonwealth Court, 249 MD 2021, as moot. 

Chief Justice Todd and Justices Dougherty, Wecht, Mundy, Brobson and 

McCaffery join the opinion.