[J-59-2015 and J-60-2015] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT , JJ.

SUGARHOUSE HSP GAMING, LP,

Petitioner

v.

PENNSYLVANIA GAMING CONTROL BOARD, Respondent

STADIUM CASINO, LLC,

Intervenor : : : : : : : : : : : : : : : : No. 175 EM 2014 Appeal from the Pennsylvania Gaming Control Board's November 18, 2014 Order granting Stadium Casino, LLC's Application for Licensure as a Category 2 Slot Machine Licensee in the City of Philadelphia

SUBMITTED: August 27, 2015

MARKET EAST ASSOCIATES. LP,

Petitioner

v.

PENNSYLVANIA GAMING CONTROL BOARD, Respondent

STADIUM CASINO, LLC,

Intervenor : : : : : : : : : : : : : : : : No. 176 EM 2014 Appeal from the Pennsylvania Gaming Control Board's November 18, 2014 Order granting Stadium Casino, LLC's Application for Licensure as a Category 2 Slot Machine Licensee in the City of Philadelphia SUBMITTED: August 27, 2015[J-59-2015 and J-60-2015] - 2 OPINION

JUSTICE TODD DECIDED: March 29, 2016 In these appeals which we have consolidated for purpose s of our disposition, we review challenges raised by Petitioner SugarHouse HSP Gaming, LP (“SugarHouse”) 1 — the present holder of a Category 2 slot machine license and operator of the Sugar House Casino in the City of Philadelphia — to the awa rd by the Pennsylvania Gaming Control Board (“Board”) of the last remaining Categ ory 2 slot machine license for the City of Philadelphia to Stadium Casino, LLC (“Stadiu m”). 2 We also consider challenges raised by Petitioner Market East Associates (“Market East”) 3 — an unsuccessful applicant for that license — to the Board’s award of th e license to Stadium. After review, we affirm in part, vacate in part, and reman d to the Board for further proceedings regarding the question of whether Stadium’ s ownership structure comports with the requirements of 4 Pa.C.S. §§ 1304(a) and 13 30. I. Background In July 2004, our General Assembly enacted the Pennsylva nia Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. §§ 1101-1904. In this legislation, the General Assembly established three sepa rate classifications of slot machine licenses for which a “licensed racing entity or per son” was eligible to apply. 4 Pa.C.S. § 1301. A Category 1 license allows the hol der to place and operate slot machines at a licensed racetrack facility at which pari-mutu el wagering on live

1 SugarHouse’s petition for review to this Court was do cketed at 175 EM 2014, J-59- 2014. 2 Stadium was granted limited intervenor status in the licensing proceedings below and allowed to intervene for purposes of this appeal. 3 Market East’s petition for review to this Court was do cketed at 176 EM 2014, J-60- 2015.[J-59-2015 and J-60-2015] - 3

thoroughbred or harness racing takes place. A Category 2 license permits the licensee to place and operate slot machines at any facility, wi thout requiring that the facility also be licensed to conduct thoroughbred or harness racing. Id. § 1304. A Category 3 license empowers the owner or subsidiary of the owner of a “well-established resort hotel” with 275 or more rooms to place and operate sl ot machines in a separate area of the hotel facility which is reserved exclusively for gami ng. Id. § 1305. With respect to Category 2 licenses, Section 1304 of the Gaming Act further provides that the Board is authorized to award not mo re than two Category 2 licenses within a city of the first class, i.e., Philadelphia, an d not more than one Category 2 license within a city of the second class, i.e., Pittsburgh. 4 Relevant to the present matter, in 2006, the Board awarded one of the two C ategory 2 licenses allocated for the City of Philadelphia to SugarHouse to build and oper ate a casino in the City of Philadelphia. The Board awarded the second Category 2 license at that time to the organization “Foxwood’s Casino Philadelphia” (“Foxwood” ), but that license was subsequently revoked on December 23, 2010 because Foxwood could not secure the necessary financing to build and operate its planned ca sino. Subsequently, SugarHouse encountered permitting and a pproval difficulties with the City of Philadelphia which delayed the commencemen t of construction. Gaming Board Adjudication (“Adjudication”), 11/18/14, at 118 . These delays, coupled with the economic downturn in 2008 which hampered the availabil ity of credit all over the country, prompted SugarHouse to request permission from the Board to build a smaller facility that it pledged to expand once business conditi ons improved. The Board granted this request in 2009, and, subsequently, in Sep tember 2010, SugarHouse

4 The Category 2 license authorized for Pittsburgh wa s awarded by the Gaming Board to Holdings Acquisition Co., L.P., which now operates t he Rivers Casino in that city.[J-59-2015 and J-60-2015] - 4

constructed and opened an “interim” facility, which is lo cated on the eastern side of Philadelphia near the Delaware River at 1080 North Delaware Avenue. In 2014, SugarHouse began construction on an expansion of that ca sino to increase both its overall size and the number of gaming offerings avail able for patrons. When these improvements are done, the number of slot machines at the SugarHouse casino is projected to rise to 2,200 from its current number of 1 ,900; the current number of presently available banked table games 5 is projected to increase from 80 to 90; and 25- 30 poker tables will be added to SugarHouse’s available gaming offerings. 6 Because of the revocation of Foxwood’s Category 2 licen se in 2010, the Board restarted the application process for that license, and it set a deadline of November 15, 2012, for receipt of applications. The Board ultimat ely received six applications, of which two were withdrawn. The four remaining applica nts considered by the Board were submitted by Stadium, Market East, PHL Local Gamin g and Tower

Entertainment. 7 In its application, Stadium proposed to convert an exi sting ten-story Holiday Inn, located on Packer Avenue in South Philadelphia betwee n 10 th and Darian Streets and immediately adjacent to Philadelphia’s “Stadium Distri ct,” where its professional sports’

5 As described by the Gaming Board: “Banked table game s are those games which players wager against the house/casino[,whereas,] [n]on- banked games are the Poker style games which players wager against each other.” Adj udication, 11/18/14, at 34 n.22. 6 While the Board’s decision in this matter involved on ly the award of the remaining Category 2 slot machine license, and did not authorize the offering of table games, presently, the Board, in reviewing the plans submitted by the respective applicants, nevertheless considered the suitability of their propo sed facilities for accommodating table games in the future in selecting the applicant wh ich submitted the best proposal. Adjudication, 11/18/14, at 40 n.24. 7 PHL Local Gaming and Tower Entertainment, while un successful in their applications, are not participants in the current appeal, and, thus, the Board’s findings of fact and legal conclusions regarding these applicants will not be discussed herein.[J-59-2015 and J-60-2015] - 5

venues 8 are all situated, into an integrated hotel, gaming and entertainment facility. The proposed integrated facility would feature, on multi ple floors, a total of 71,500 square feet of space devoted to gaming, as well as a 2,600-spa ce self-parking garage, a 200- room hotel, a spa, pool and fitness center, six restaur ants, a concert hall seating 1,000 people, and a rooftop deck. Stadium projected that 2, 013 slot machines, 92 banked table games, and 33 non-banked poker games would occupy the gaming space within the facility. Market East’s application detailed its plans to build a 17-story combination hotel and casino located in the heart of Philadelphia, in the “Center City” area, at the corner of

8 th and Market Streets. This building would offer, on tw o floors, a total of 116,820 square feet of space for gaming containing 2,400 slot m achines, 82 banked table games and 30 poker tables. Additional amenities would include six restaurants, a sports bar, various retail shops, outdoor terraces, and a 1,200-seat showroom. Market East proposed to construct underneath the hotel a parking garage holding 752 selfparking, and 1,000 valet-parking spaces. Thereafter, the Board’s Bureau of Licensing, Bureau o f Investigation and Enforcement, and its Financial Investigations Unit enga ged in a comprehensive investigation of each of the applicants to ensure that t he principals in these entities comported with the Gaming Act’s requirements that they be of good character, and that the entities themselves had adequate financial resources t o build and operate the proposed facilities in the manner described in their ap plications. In 2013, after these investigations were complete, the Board conducted a serie s of open hearings at which

8 These include Citizen Bank Park, home of the Philadelp hia Phillies baseball club, Lincoln Financial Field, home of the Philadelphia Eag les football team, and the Wells Fargo Center — home of the Philadelphia Flyers hockey t eam, and the Seventy-Sixers, Philadelphia’s basketball team.[J-59-2015 and J-60-2015] - 6

members of the public were permitted to testify. Addi tionally, at one of the public hearings, the City of Philadelphia was afforded the r ight to present testimony on its behalf from city officials, as well as testimony from a co nsulting firm the city had retained regarding its evaluation of the economic impa ct each of the proposed casinos would have, as well as its comparison of the potential r evenues which would be generated by their operation. The Board subsequently scheduled formal public suitabili ty hearings to consider each license application individually, at which an appli cant was allowed to present formal testimony in support of its own application, and also to compare the merits of its plans for construction and operation of a casino to those put forth by the other applicants. Prior to the commencement of those hearings, SugarHouse and two other groups filed petitions to intervene. 9 The Board’s rules governing intervention in these ind ividual licensing hearings permit a party to petition the Gaming Board for int ervention “if the person has an interest in the proceeding which is substantial, direct and immedi ate and if the interest is not adequately represented in a licensing hearing.” 58 Pa . Code § 441a.7(z)(2). In its petition, SugarHouse sought intervention based, first, on the assertion that if another applicant was permitted to operate in Philadelphia it would be “a direct competitor” which would “dilute” the gaming market, thereby causin g it to “suffer direct competitive and economic harm.” SugarHouse Petition to Intervene , 12/16/13, at 4. SugarHouse also sought intervention on the basis of its claim that an award of a Category 2 license

9 The other groups were Eastern Pennsylvania Citizens A gainst Gambling and a group jointly comprised of the Congregation Rodeph Shalom, the Mathematics, Civics and Science Charter School, and Friends Select School, none of which are participating in the current appeal.[J-59-2015 and J-60-2015] - 7

to Stadium and other applicants would violate Section 1304 of the Gaming Act 10 because they allegedly were “owners or operators” of ot her Pennsylvania Category 1 facilities. Id. at 9-10. Finally, SugarHouse requeste d intervention on the grounds that “affiliates, owners, or financial backers” of Stadium, Ma rket East, and other applicants owned or had a financial interest in other existing li censed gaming entities which exceeded the 33.3% statutory limit allowed by Section 1330 of the Gaming Act. 11 Id. at 10-11. SugarHouse contended that neither the Board nor any of the other applicants had the same economic and social interests, nor could the B oard or the other applicants represent its interests in the licensing proceeding. The Board granted SugarHouse’s petition, in part, “li mited . . . to the issues surrounding the Philadelphia gaming market and the i mpact a second Philadelphia casino may have on it.” Board Order, 1/8/14, at 1. However, the Board denied SugarHouse intervention on the remaining issues raised i n its petition regarding “issues of compliance by applicants with Sections 1304 and 1330,” noting that SugarHouse’s “interests in those areas are adequately represented by the [Board’s] Office of Enforcement Counsel [(“OEC”)].” Id. SugarHouse did not attempt to appeal that portion of the Board’s order at that time, but, instead, raise s challenges to the Board’s limitation of its intervention in the instant appeal. At each of the individual licensing hearings conducted by the Board from January 28-30, 2014, Sugar House presented evidence only on the issue of the potential market saturation a nd cannibalization of revenues

10 Section 1304 allows a person to apply for a Category 2 slot machine license “if the applicant, its affiliate, intermediary, subsidiary or h olding company is not otherwise eligible to apply for a Category 1 license.” 4 Pa.C. S. § 1304. 11 Section 1330 prohibits a “slot machine licensee, its aff iliate, intermediary, subsidiary or holding company” from “possess[ing] an ownership or f inancial interest that is greater than 33.3% of another slot machine licensee or person eligible to apply for a Category 1 license, its affiliate, intermediary, subsidiary or hold ing company.” 4 Pa.C.S. § 1330.[J-59-2015 and J-60-2015] - 8

which it contended would take place as the result of th e opening of a second casino in Philadelphia. After the individual licensing hearings concluded, all p arties were given the chance to file written objections to matters that tran spired during the hearings. No posthearing objections were filed by any party, although each of the applicants and intervenors filed post-hearing briefs. On February 5, 2014, Stadium filed a “Petition to Reopen the Record” to allow it to amend its applicati on to include a revised ownership structure in order to address questions raised by the Boar d at Stadium’s suitability hearing regarding whether the ownership structure of S tadium comported with Section 1330. This petition was not opposed by the OEC, or by any of the parties or intervenors, and it was granted by the Board. As relevant to the issues involving Section 1330 of the Gaming Act, which are contested by the parties in this appeal, the Petition to Reopen the Record concerned the ownership interests of Watche Manoukian in a corpora tion and a limited partnership, both of which entities were part owners of Stadium. At the time of Stadium’s initial application in 2012, Manoukian was the president, treas urer and director of Sterling Fiduciary Services, Inc. (“Sterling Fiduciary”), a corpor ation which acted as trustee for the Sterling Investors Trust. Sterling Investors Trust w as the sole owner of Stadium Casino Investors, L.L.C., that, in turn, owned 50% of Stadium. 12 The other 50% of Stadium was then, and was at the time of the Board pr oceedings below, held by an ownership group from Maryland — Stadium Casino Baltimo re Investors, LLC (“Cordish

12 Diagrams of Stadium’s pre- and post-licensure ownership structures have been included as an exhibit to the confidential brief of Su garHouse. See SugarHouse Confidential Brief, Appendix 4.[J-59-2015 and J-60-2015] - 9

Group”). 13 In its amended application, Stadium presented a rev ised governance structure of Sterling Fiduciary in which Manoukian relin quished his roles as president, treasurer and director of that corporation and, instea d, took a 28% stock interest in it, assigning the remaining 72% of the corporation’s stock to other of his family members. Stadium’s original application contemplated that, if i t were ultimately awarded the Category 2 license, Sterling Investors Trust would reduce its ownership interest in Stadium to 34%, and a company known as Greenwood Racing Inc. (“Greenwood”) would acquire a 66% interest in Stadium Casino Investor s. Manoukian owns 85% of Greenwood, which is also the holding company that owns P arx Casino — a Category 1 slot machine licensee — located in Bensalem, Bucks County. Because of the prohibition in Section 1330 of the Gam ing Act against a slot machine licensee possessing “an ownership or financial int erest . . . greater than 33.3% of another slot machine licensee,” the Board considered t he question of whether Manoukian’s ownership interests in both Greenwood and St adium would violate that prohibition if Stadium was awarded the Category 2 li cense. The Board found that they would not, as it determined that, post-license, Manoukia n would own only 28.3% of Stadium through his ownership of Greenwood. 14 Because of the alteration in the ownership structure of Sterling Fiduciary, which left Ma noukian a minority shareholder in that company, the Board attributed none of Sterling Fiduciary’s net ownership interest in Stadium to Manoukian; however, it noted that, even i f it were to consider Manoukian’s 28% ownership of Sterling Fiduciary’s stock to constitute an indirect ownership interest

13 The principal ownership interest in this group is held by Jonathan Cordish, with the remainder of the ownership interest held by other Cor dish family members. 14 The Board arrived at this figure using the followin g computation: Manoukian owns 85.84% of Greenwood (.8584), which in turn owns 66% ( .66) of Stadium Casino Investors L.L.C. which itself owns 50% (.50) of Stadium. Thus, (.8584) x (.66) x (.50) yields a net ownership interest for Manoukian of .283, or 28.3%.[J-59-2015 and J-60-2015] - 10

by Manoukian in Stadium, then that interest would on ly amount to an additional 4.8%, 15 which, when added to his other 28.3% ownership in Stad ium through Greenwood, still left Manoukian’s total ownership interest in Stadium be low the 33.3% limit imposed by Section 1330. Adjudication at 80-81. On February 26, 2014, the Board entertained closing a rguments by Market East and other applicants, as well as SugarHouse; however, St adium presented no argument. After considering all of the evidence of re cord, on November 18, 2014, the Board voted 7-0 at an open public hearing to award t he Category 2 license to Stadium. The Board explained that its selection of Stadium was based on the following factors: (1) the Board considered Stadium’s hotel/casino to be “ right-sized” for the Philadelphia gaming market since it would not be “overbuilt”; (2) t he location of the hotel/casino, in Philadelphia’s Stadium District bordering the parking l ots of the stadiums, and, hence, apart from large residential populations, was advantag eous in that it was accessible by the nearly 8 million annual visitors to the sports’ stad iums, and its design, as a modern streetscape, would fit well within the overall architect ural scheme of the area; (3) the geographic location of the hotel/casino relative to oth er existing casinos would be of sufficient distance so as to create a buffer between them; (4) the hotel/casino would be accessible by automobile from two major interstate highw ays — I-76 and I-95 — as well as by a nearby subway stop for those desirous of taking ma ss transportation from the Center City region of Philadelphia; (5) there was mi nimal public opposition to the proposed location, and the concerns of residents who l ived in a neighborhood near the

15 This 4.8% figure represents the product of the percent of stock Manoukian owned in Sterling Fiduciary (.28), multiplied by that trustee ’s legal ownership of Sterling Investors Trust (1.00), multiplied by the percentage ownership i nterest of Sterling Investors Trust in Stadium Casino Investors (.34), multiplied by the o wnership interest of Stadium Casino Investors in Stadium (.50), i.e., (.28)(1.00)(. 34)(.50)=(.048), or 4.8%.[J-59-2015 and J-60-2015] - 11

corner of Packer Avenue and Broad Streets regarding in creased traffic on game days would be alleviated by Stadium’s commitment to entire ly finance the construction of an additional on-ramp to I-76 which would divert some of the traffic flow, as well as its building of the aforementioned parking garage which w ould absorb the increased demands for parking on days in which sporting events were held; (6) Greenwood had a proven track record in the casino industry by making Parx a top producing casino, while the Cordish Group had a similar successful background in th e broader entertainment industry through the operation of its Live! facilities, one of which — X-Finity Live! — was already a popular entertainment destination located i n the Stadium District; and (7) the ownership group of Stadium had the capacity to self-f inance the construction of the casino and was not dependent on private financing throu gh the credit market; thus, its ownership would not incur excessive debt which would hind er either its ability to be developed as proposed, or its ability to compete with other casinos in the Philadelphiaarea gaming market. Adjudication at 112-16. II. Analysis Both SugarHouse and Market East filed petitions for rev iew with this Court raising the following issues, which, with respect to Sugar House’s petition, we have

reordered for ease of discussion. 16 Appeal of SugarHouse at 175 EM 2014, J-59-2015:

16 Our Court has exclusive jurisdiction over these appeals pu rsuant to Section 1204 of the Gaming Act, which provides:

The Supreme Court of Pennsylvania shall be vested with exclusive appellate jurisdiction to consider appeals of an y final order, determination or decision of the board i nvolving the approval, issuance, denial or conditioning of a slo t machine license or the award, denial or conditioning of a table game operation certificate. 4 Pa.C.S. § 1204.[J-59-2015 and J-60-2015] - 12 1. Did the Board err as a matter of law, or at the v ery least, act arbitrarily and with a capricious disregard of the evidence, when it failed to grant in full SugarHouse’ s Petition to Intervene on the grounds that SugarHouse’s interests in ensuring the applicants’ compliance with the Gaming Act would be adequately represented by the Board’s enforcement counsel?

2. Did the Board err as a matter of law, or at the v ery least, act arbitrarily and with a capricious disregard of the evidence, when it awarded a license to Stadium without considering, as required by Section 1102(5) of the Gami ng Act and its own regulation (58 Pa. Code § 421a.5), wh ether the award would result in the undue concentration of economic opportunities and control of licensed facilities?

3. Did the Board err as a matter of law, or at the v ery least, act arbitrarily and with a capricious disregard of the evidence, when its award to Stadium violates the eligi bility requirements of Section 1304 of the Gaming Act prohibi ting dual ownership and control of both a Category 1 licen see and a Category 2 licensee?

4. Did the Board err as a matter of law, or at the v ery least, act arbitrarily and with a capricious disregard of the evidence, when its award to Stadium allowed Manoukian and his affiliates to own or control more than 33.3% o f a second casino in Pennsylvania?

SugarHouse Brief (J-59-2015) at 5-6. Appeal of Market East at 176 EM 2014, J-60-2015:

1. Did the Board commit an error of law in granting the application of Stadium for a Category 2 Slot Machine License in the City of Philadelphia, Pennsylvania when it did not consider the likelihood of possible monopolization and/or undue concentration of economic opportunities an d control of licensed gaming facilities as required by sectio n 1102(5) of the Gaming Act, 4 Pa.C.S. § 1102(5), and the Board's own regulations found at 58 Pa. Code § 421a.5 .?[J-59-2015 and J-60-2015] - 13 2. Did the Board commit an error of law in granting the application of Stadium for a Category 2 Slot Machine License in the City of Philadelphia, Pennsylvania becau se granting the license to Stadium violates section 1304(a )(1) of the Gaming Act, 4 Pa.C.S. § 1304, which makes Stadium ineligible for a Category 2 license because an entity i s only eligible to apply for a Category 2 license if the app licant, its affiliate, intermediary, subsidiary or holding company is not otherwise eligible to apply for a Category 1 license? 3. Did the Board commit an error of law in granting the application of Stadium for a Category 2 Slot Machine License in the City of Philadelphia, Pennsylvania becau se granting the license to Stadium violates section 1330 of the Gaming Act, 4 Pa.C.S. § 1330, which prohibits a slot machine licensee, its affiliate, intermediary, subsidiary , or holding company from possessing an ownership or financial interest greater than 33.3% of another slot machine li censee or person eligible to apply for a Category 1 license, its affiliate, intermediary, subsidiary, or holding compan y? 4. Was the Board's decision in granting the application of Stadium for a Category 2 Slot Machine License in the C ity of Philadelphia, Pennsylvania arbitrary and the result o f a capricious disregard of the evidence when it ignored the considerable strengths of Market East's application? Market East Brief (J-60-2015) at 9-11. In these appeals, the Board is the Respondent. Howeve r, Stadium intervened in this appeal, as a matter of right, pursuant to Pa.R.A. P. 1531. 17

A. Appeal of SugarHouse at 175 EM 2014, J-59-2015

17 This rule provides in relevant part:

( a) Appellate jurisdiction petition for review proce edings. A party to a proceeding before a government unit tha t resulted in a quasijudicial order may intervene as of r ight in a proceeding under this chapter relating to such order by filing a notice of intervention (with proof of service on a ll parties to the matter) with the prothonotary of the appellate court within 30 days after notice of the filing of the petition fo r review. Pa.R.A.P. 1531.[J-59-2015 and J-60-2015] - 14

In its first issue, SugarHouse claims that the Board’s deci sion to deny it leave to intervene in this proceeding on issues other than marke t saturation constituted an error

of law and an abuse of discretion. 18 SugarHouse argues that it had the requisite direct,

18 Stadium argues that this issue is waived since SugarHouse did not appeal the Board’s order as a collateral order at the time of it s entry. Specifically, Stadium contends that the order of the Board denying the int ervention of SugarHouse as to “issues of compliance with Sections 1304 and 1330” was a col lateral order since it meets all three criteria established by Rule of Appella te Procedure 313(b) which define such an order: (1) it is “separable from and collatera l to the main cause of action”; (2) it involves a right “too important to be denied review; ” and (3) the question presented is such that if review is “postponed until final judgment ” in the case, the claim will be “irreparably lost.” Stadium Brief (J-59-2015) at 8 ( quoting Pa.R.A.P. 313(b)). Stadium reasons that, because the order limiting SugarHouse’s int ervention was collateral, under our Court’s decision of In re Barnes Foundation, 871 A.2d 792 (Pa. 2005) (holding that individuals denied intervention in Orphan’s Court pro ceeding regarding restructuring of a charitable trust could not appeal from final order approving the restructuring, but, rather, were required to appeal from order denying intervention, as their lack of party status deprived them of standing to appeal), it was imm ediately appealable within 30 days of the date of its entry, and SugarHouse’s failur e to take an appeal within that time period deprived our Court of jurisdiction to presently consider its appeal. SugarHouse responds that there is no provision of the Gaming Act which allows for a collateral appeal arising out of licensing proceed ings. SugarHouse argues that Section 1204 of the Gaming Act governing appeals from license application proceedings before the Gaming Board permits only an ap peal from a “final order,” in what SugarHouse contends was a deliberate restriction on appellate review in order to further the legislative objective of providing a strea mlined appeals process for review of licensing decisions. SugarHouse Reply Brief at 23 (quoti ng 4 Pa.C.S. § 1204). Additionally, SugarHouse maintains that, because the Ga ming Board’s order granted it limited intervention, it was not subject to immediate review, citing as support the decision of the United States Supreme Court in String fellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987) (order granting limited intervention, and placing conditions on scope of intervention, was reviewable in an appeal from the final judgment; hence, interlocutory review was not permitted under the colla teral order doctrine). SugarHouse contends that Barnes does not compel a different result, as that case involved an appeal from a court of common pleas decision, and the a ppellant in that case was denied intervention completely. Given that this matter is not a civil proceeding, as in Barnes, where intervention is governed by our rules of civil procedure, but, instea d, intervention in this matter was sought under the Board’s unique procedural rules, and si nce the Board has taken no (continuedR)[J-59-2015 and J-60-2015] - 15

substantial, and immediate interest justifying its inte rvention, based on its averment that it would be harmed by the alleged unfair economic adv antage in the competitive Philadelphia gaming market that Stadium would have g ained by being awarded a license without complying with the licensure requirement s of the Gaming Act. SugarHouse contends that the Board erred in determin ing that its interests could be adequately represented by the OEC since that entity ha d already submitted a suitability report prior to SugarHouse’s filing of its petition to intervene indicating that Stadium met the statutory requirements for licensure, and it refuse d to take a position before the Board regarding whether Stadium’s ownership structure w as in compliance with Section 1330 of the Gaming Act. SugarHouse maintains that had it been given the opportunity to intervene it would have vigorously pressed argument s regarding this issue and would have reminded “the Board of its responsibility to exam ine carefully the issues raised by the joint ownership of Parx and Stadium.” SugarHouse Brief (J-59-2015) at 57. The Board responds that intervention is not a matter of right, but an exercise of discretion on its part, and intervention is limited un der its regulations to only those circumstances in which a party has a direct, substantial, and immediate interest in the licensing proceeding. The Board argues that SugarHouse did not have an interest with respect to issues concerning Stadium’s compliance with Sectio ns 1304 and 1330 of the Gaming Act which was any different than any other citiz en who seeks to ensure compliance with the law; thus, in the Board’s view, Sug arHouse did not have standing to assert these issues before the Board. In any event, accor ding to the Board, SugarHouse’s claim essentially boils down to an allegatio n that the OEC did not present

(Rcontinued) position on this issue, we will assume, arguendo , that this question is reviewable in this appeal from the Board’s final judgment.[J-59-2015 and J-60-2015] - 16

the issues in the way that SugarHouse would have done, had it been granted intervenor status, and this averment was not a basis for it to be gr anted intervention. The Board emphasizes that it granted SugarHouse inter vention on the issue of market saturation because that issue affected its direct pe cuniary interest due to the fact that the entity which was awarded the license would be a competitor of SugarHouse, and no other party had such a similar interest. However , the issues of each applicant’s comportment with the statutory eligibility criteria we re “exactly the interest[s] that OEC, as well as every other competing applicant/party, had i n this matter.” Board Brief (J-59- 2015) at 25. The Board stresses that OEC did fulfill i ts responsibility to enforce the licensing requirements of the Gaming Act in that it inv estigated and reviewed the background of each applicant and made specific recommenda tions regarding each. The Board rejects SugarHouse’s argument that because the chief counsel for the OEC took no formal position before the Board challenging t he licensing structure of Stadium, the Board did not consider that issue carefully. The B oard points out that, in arriving at its decision, it examined the evidentiary record fully , as was its responsibility under the Gaming Act, and, moreover, the competing license applica nts — which had substantial, direct and immediate interests in ensuring that the Boa rd considered the licensing criteria of the Gaming Act — did present arguments on th is question and reminded the Board of its duty to consider all of the relevant stat utory factors. Our review of Board decisions is circumscribed by Section 12 04 of the Gaming

Act which mandates that our Court:

shall affirm all final orders, determinations or decisio ns of the board involving the approval, issuance, denial or conditioning of a slot machine license or the award, de nial or conditioning of a table game operation certificate unl ess it shall find that the board committed an error of law o r that the order, determination or decision of the board was arbi trary and there was a capricious disregard of the evidence.[J-59-2015 and J-60-2015] - 17

4 Pa.C.S. § 1204. Thus, “this Court’s review of Board decisions is limited to determining whether the Board: (1) erred as a matte r of law; or (2) acted arbitrarily and in capricious disregard of the evidence.” Greenwood Gam ing & Entertainment, Inc. v. Pennsylvania Gaming Control Bd. , 15 A.3d 884, 886-87 (Pa. 2011). A capricious disregard will be found whenever an administrative ag ency engages in a “willful and deliberate disregard of competent testimony and releva nt evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.” Id. However, “under the capricious disregard standard, the agency's de termination is given great deference, and relief will be rarely warranted.” Ri verwalk Casino, LP v. Pennsylvania Gaming Control Bd., 926 A.2d 926, 929 (Pa. 2007). I n applying this standard “an appellate tribunal is not to substitute its judgment for that of the lower tribunal and the standard is not to be applied in such a manner as would intrude upon the agency's factfinding role and discretionary decision-making authority .” Id. at 930 (internal quotation marks omitted). As the Board has noted, an entity seeking intervention in slot machine licensing hearings does not have an automatic right under the Ga ming Act to do so; rather, the decision to grant or deny intervention “is within the sole discretion of the Board.” 58 Pa. Code § 441a.7(z). Intervention is restricted to only t hose persons who have “an interest in the proceeding which is substantial, direct and immed iate,” and, then, only when “the interest is not adequately represented in a licensing he aring.” Id. § 441a.7(z)(2). Our Court has described the essential requirements for a party’s interest to be considered substantial, direct, and immediate as follows:

A party has a substantial interest in the outcome of li tigation if his interest surpasses that of all citizens in procuring obedience to the law. The interest is direct if there i s a causal connection between the asserted violation and th e harm complained of; it is immediate if that causal conn ection is not remote or speculative.[J-59-2015 and J-60-2015] - 18

Johnson v. American Standard, 8 A.3d 318, 329 (Pa. 20 10) (quoting Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009)). Inasm uch as SugarHouse was a casino operator in Philadelphia at the time of these licensi ng proceedings and, as such, it would suffer financial detriment by the improper gran ting of a license to a competing casino within the City of Philadelphia, we agree with its contention that it had a substantial, direct, and immediate interest in the outco me of the licensing proceedings which was greater than the general interest possessed by a ll persons in ensuring compliance with the law. However, we discern no error of law, or arbitrary or capricious disregard of competent evidence in the Board’s determination that SugarHouse’s interests in ensuring that the successful applicant would meet all of the statutory requirements set forth in the Gaming Act for the award of the license w ere adequately represented during the licensing hearings. The extensive evidentiary record in this matter, and the Board’s comprehensive Adjudication, indicates that the Board car efully considered the question of whether Stadium’s ownership structure violated Secti on 1304(a) and 1330 of the Gaming Act based on the evidence presented to it by OE C and other parties on this question. Indeed, the matter of Stadium’s ownership str ucture, as presented in its original application, was specifically discussed at its licensi ng hearing, which prompted Stadium to present a revised ownership structure to the Board after the hearing. Adjudication at 11. SugarHouse does not identify any evidence on these questions which it was precluded from presenting to the Board du ring the hearings which was not otherwise considered by the Board in arriving at its de cision. 19 Moreover, as evident from the record and its Adjudication, the extensive fact ual and legal arguments with

19 In its Petition to Intervene, SugarHouse sought to conduct discovery on this issue, but this request was denied, Adjudication at 28 n.19, and it does not challenge this denial in the present appeal.[J-59-2015 and J-60-2015] - 19

respect to these questions were vigorously pursued before the Board by the other applicants, and continue to be pursued by Market East in this appeal; thus, we find no merit in SugarHouse’s assertion that allowing it to pr esent arguments to the Board was somehow necessary in order to remind the Board of the need for it to consider these questions. Consequently, we see no basis to disturb the B oard’s decision to limit SugarHouse’s participation in the licensing proceedings be fore it to the issue of market

saturation. 20 See, e.g., West Chester Area School District v. Collegium Charter School, 812 A.2d 1172, 1187 (Pa. 2002) (finding no abuse of discretion whenever the putative intervenor would not have presented additional evide nce or arguments before the administrative tribunal, and its interests were represen ted by a party to the proceedings before the tribunal). Given this conclusion that SugarHouse’s intervention in the licensing proceedings was properly limited to the question of mar ket saturation under the Board’s rules, we do not address SugarHouse’s remaining issues prese nted in its appeal. That is, with respect to these issues, it was not granted leave to intervene in the proceedings below, did not participate as a party in the licensing hearings with respect to those issues, and so will not be heard now. 21 See 58 Pa. Code § 494a.11(a) (specifying that “[a] party

may appeal final orders of the Board” (emphasis adde d)); Society Hill Civic

20 Notably, SugarHouse has abandoned the issue of market s aturation in the present appeal. SugarHouse Brief (J-59-2015) at 2-3. As a re sult, we do not consider this question. Pa.R.A.P. 2119; Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014). In addition, as no other party to this appeal raises this i ssue, we will not consider the arguments related to it raised in the amicus briefs of Delaware County and Chester Downs’ Casino.

21 We leave for another day consideration of the breadt h of an intervenor’s right to be heard before this Court on issues for which it was erroneously denied intervention before the Board.[J-59-2015 and J-60-2015] - 20

Association v. Pennsylvania Gaming Control Board, 928 A .2d 175, 183 (Pa. 2007) (no standing to appeal from a decision of the Gaming Board by persons who were not parties below, or granted leave to intervene); cf. Ap peal of Municipality of Penn Hills, 546 A.2d 50 (Pa. 1988) (recognizing the right of an administrative tribunal to limit intervention through its rules of procedure, and that scope of party’s intervention before

the administrative tribunal is determinative of its rights to pursue issues on appeal). Nevertheless, we note that we have carefully reviewed S ugarHouse’s arguments concerning these issues and have determined that they ar e duplicative of the arguments raised by Market East, which we address below in our discussion of its appeal. B. Appeal of Market East at 176 EM 2014, J-60-2015

1. Whether, in awarding the license to Stadium, th e Board failed to consider the alleged monopolization of the gaming market and/or u ndue concentration of economic opportunities and licensed gaming faciliti es, which purportedly would result? In its first issue, Market East contends that, in awardin g the license to Stadium, the Board failed to consider the alleged monopolizati on of the gaming market or the undue concentration of economic opportunities and licen sed gaming facilities which purportedly would result. Before considering this quest ion, however, we must address the Board’s argument that this issue was waived under Pa .R.A.P. 1551 due to Market

East’s failure to raise it before the Board. Market Ea st denies that this issue was

waived under this rule based on its contention that th e Board had the independent duty under Section 1102(5), and its own regulations, 58 Pa. Code § 421a.5, to consider

whether undue economic concentration would result from i ts issuance of a slot machine

license. Market East further asserts that it could not hav e raised this issue until the Board issued its Adjudication, in which Market East conten ds that the Board failed to analyze this question.[J-59-2015 and J-60-2015] - 21

Pa.R.A.P. 1551, which governs petitions for review fro m administrative tribunals, provides, in relevant part, that “[n]o question shall be heard or considered by the court which was not raised before the government unit except: . . . (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit.” Pa.R.A.P. 1551(a ). As we noted in our decision in Station Square Gaming L.P. v. Pennsylvania Gaming Co ntrol Bd., 927 A.2d 232, 240-41 (Pa. 2007), proceedings before the Gaming Board are “ sui generis” and unlike either a conventional trial in the court of common pleas, or pr oceedings conducted before other administrative tribunals such as unemployment or workers’ compensation hearings. Thus, we stressed that, given the Board’s unique procedur es, in circumstances where a party did not have the opportunity to identify or r aise issues to the Board, such issues will not be waived if they are raised for the first t ime in a petition for review. Id. at 241. Here, the nature of Market East’s claim, i.e., that the Board “did not consider the likelihood of possible monopolization and/or undue conce ntration of economic opportunities and control of licensed gaming facilities ,” as required by statute and regulation, Market East Brief (J-60-2015) at 9-10, is a challenge to the Board’s Adjudication in which it explicated its rationale for m aking its ultimate licensing decision. The Board’s regulations do not permit a party to file either exceptions, or a motion for reconsideration or rehearing, after the Board’s final order in licensing proceedings. See 58 Pa. Code § 494a.8(f) (expressly exempting a final order of the Board in licensing proceedings from being subject to an application for re hearing or reconsideration, and providing that challenges to a Board denial of a licen se are governed by 4 Pa.C.S. § 1204). As a result, the earliest possible opportunity f or Market East to raise this challenge was through its petition for review; thus, we find the issue is not waived.[J-59-2015 and J-60-2015] - 22

On the merits, Market East asserts that 58 Pa. Code § 421a.5(c) specifies that the Board, in determining whether undue concentration of economic opportunities exists, “will consider” the 11 factors enumerated therei n. 22 Market East Brief (J-60-

22 Section 421a.5(c) provides:

In determining whether the issuance or holding of a l icense by a person will result in undue concentration of econo mic opportunities and control of the licensed gaming facili ties in this Commonwealth, the Board will consider the followi ng criteria: (1) The percentage share of the market presently contr olled by the person in each of the following categories: (i) Total number of slot machine licenses available und er section 1307 of the act (relating to number of slot machine licenses). (ii) Total gaming floor square footage. (iii) Number of slot machines and table games. (iv) Gross terminal and table game revenue. (v) Net terminal and table game revenue. (vi) Number of persons employed by the licensee. (2) The estimated increase in the market share in the categories in paragraph (1) if the person is issued or permitted to hold the license. (3) The relative position of other persons who hold li censes, as evidenced by the market share of each person in the categories in paragraph (1). (4) The current and projected financial condition of th e industry. (5) Current market conditions, including level of com petition, consumer demand, market concentration, any consolidation trends in the industry and other relevant characteristi cs of the market. (6) Whether the gaming facilities held or to be held by the person have separate organizational structures or other independent obligations. (7) The potential impact of licensure on the projected future growth and development of the gaming industry in thi s Commonwealth and the growth and development of the host communities. (continuedR)[J-59-2015 and J-60-2015] - 23

2015) at 21. It reasons that, because the Board faile d to either refer to these factors, or discuss them in its Adjudication, its decision should be reve rsed; according to Market East, this failure evidences the Board’s disregard for th e legislative intent to avoid monopolization and undue economic concentration in the award of a slot machine

license. Market East claims that the Board’s failure to conduct such an explicit analysis is “troubling” based on what it contends are “anti[-]com petitive effects” of the award of the license. Market East Brief (J-60-2015) at 22. Marke t East cites, as support for this contention: first, the proximity of Stadium’s propose d casino to the site of the Parx Casino, which it contends are both owned by Manoukian a nd, thus, would have no incentive to compete against one another in the same ma rket; and, second, the alleged competitive advantage Stadium would have over other casinos, by virtue of the access

(Rcontinued) (8) The barriers to entry into the gaming industry, i ncluding

the licensure requirements of the act, and whether the issuance or holding of a license by the person will opera te as a barrier to new companies and individuals desiring to enter the market. (9) Whether the issuance or holding of the license by th e person will adversely impact consumer interests, or wheth er the issuance or holding is likely to result in enhancing the quality and customer appeal of products and services offered by slot machine licensees to maintain or increas e their respective market shares. (10) Whether a restriction on the issuance or holding o f an additional license by the person is necessary to encourag e and preserve competition and to prevent undue concentration of economic opportunities and control of t he licensed gaming facilities. (11) Other evidence related to concentration of econ omic opportunities and control of the licensed gaming facili ties in this Commonwealth. 58 Pa. Code § 421a.5(c).[J-59-2015 and J-60-2015] - 24

it would have to a combined list of customers from bo th casinos, which it would use for marketing purposes. The Board responds 23 by focusing on the fact that 58 Pa. Code § 421a.5(c) did not require it to engage in a protracted discussion in its Adjudication of each of the factors set forth therein; rather, in the Board’s view, it is required by the text of the regulation only to consider them in its licensing decisio n. It contends that the evidentiary record and its Adjudication both demonstra te that it was presented with, and did, in fact, consider evidence relating to the issue o f concentration of economic opportunities during the process of deciding to award the license to Stadium. The Board rejects Market East’s assertion that Stadium is “anot her Manoukian casino,” because that conclusion disregards the fact that the Cordish Group, which owns 50% of Stadium, is a new entrant into the Pennsylvania gamin g market, and that it will have the greatest share of control over the Stadium casino. Board Brief (J-60-2015) at 26. Consequently, according to the Board, it is the Cordish Group, not Manoukian, that will realize the majority of the benefits of this control o ver the facility, its slot machines, table games, and the attendant revenue and employment oppo rtunities which will be generated. The Board points out that, prior to its award of a li cense to Stadium, SugarHouse had a slot machine monopoly in Philadelphia, even tho ugh the Gaming Act expressly contemplated that there be two such licensees, and that the mere use of the same mailing list for marketing purposes by both casinos does not, by itself, rise to the level of a violation of the regulations, particularly where ot her casino management companies

23 While we have considered Stadium’s arguments as an int ervenor with respect to this and the remaining issues in these appeals, since it is the Board’s adjudication of these issues that is being challenged by Market East, we focus on the Board’s appellate arguments as they elucidate its rationale for its decisio n.[J-59-2015 and J-60-2015] - 25

routinely employ such practices, such as the Mohegan Sun, which would manage Market East’s casino, and which currently manages a Pennsyl vania casino at Pocono Downs, as well as a casino in Connecticut that purportedly is the highest grossing casino in the Western Hemisphere with the largest databa se of customers. Finally, the Board points out that the Gaming Act contemplates some degree of economic concentration, and 58 Pa. Code § 421a.5(c) prohibits on ly “ undue concentration of economic opportunities” which stifles competition, somethi ng it maintains Stadium’s casino will not do. Board Brief (J-60-2015) at 28 (em phasis added). Applying our circumscribed standard of review to this que stion, we discern no error of law, or arbitrary or capricious disregard of com petent evidence, which would justify overturning the Board’s decision on this basis. Th e Gaming Act, by its legislative design, does not, as a matter of law, regard multiple ownership interests in and of themselves as creating either a monopoly or undue econom ic concentration on the part of the possessor of such interests. Indeed, the Gaming Act specifically allows parties to possess multiple ownership interests, provided they do no t exceed the statutory limits set by the legislature on such interests. See 4 Pa.C.S. §§ 1304, 1330. Moreover, and importantly, neither 58 Pa. Code § 42 1a.5(c), nor the statute which this regulation was promulgated to effectuate, Se ction 1102(5) of the Gaming Act, 24 requires that the Board engage in an extended or in -depth discussion in a licensing adjudication of each separate factor that it considered in determining that an

24 This statutory subsection provides:

The authorization of limited gaming is intended to p rovide broad economic opportunities to the citizens of this Commonwealth and shall be implemented in such a manne r as to prevent possible monopolization by establishing reasonable restrictions on the control of multiple lice nsed gaming facilities in this Commonwealth. 4 Pa.C.S. § 1102(5).[J-59-2015 and J-60-2015] - 26

award of a slot machine license would not result in “und ue concentration of economic opportunities” or “possible monopolization.” Thus, th e mere fact that the Board in this case did not engage in a formulaic, checklist style consider ation of the criteria listed in 58 Pa. Code § 421a.5(c) in its Adjudication does not in dicate that it failed to consider these criteria as part of its decision-making process. Indee d, it is evident from its Adjudication that the Board evaluated and judiciously weighed evidence regarding these factors in arriving at its decision, even though it did not formally announce that it was doing so. See Adjudication at 76-85; 118-120 (discussin g physical capacity for gaming offerings currently offered by SugarHouse, the projecte d physical gaming capacity of Stadium, current revenues generated by SugarHouse, and the projected revenues for Stadium); 79-82 (detailing respective ownership structu res of Parx Casino and Stadium); 113 (discussing geographical proximity of Stad ium’s proposed facility to existing casinos, and observing that it was far enough aw ay from those facilities to create a “buffer” between them); 114-16 (discussing how the ownership structure of Stadium affected its ability to compete in the Philade lphia gaming market); 120, 122-23 (recognizing the effect of existing competition among casi nos in the Philadelphia area for customers as undergirding Board’s decision to select th e “right sized” casino for the market, not the largest casino); 124 (analyzing the degr ee of “cannibalization” of revenues from all existing casinos by the opening of eac h of the proposed casinos); 126-28 (discussing how SugarHouse has “substantially benef ited” from being the only Philadelphia area slot machine licensee to date, the l egislature’s considered judgment that Philadelphia was able to sustain two such facilities, the general market conditions extant in the Philadelphia gaming market at the time of the licensing proceedings, the effect of casino closures in nearby Atlantic City on custo mer demand, and how competition in the Philadelphia area gaming market wo uld be enhanced by the opening[J-59-2015 and J-60-2015] - 27

of a second casino); 155 (discussing the number of permane nt casino jobs which each project would create). We, therefore, find no merit to this claim.

2. Whether Stadium was ineligible to apply for a C ategory 2 license under Section 1304(a) of the Gaming Act because one of it s owners could be considered an affiliate “eligible to apply” for a Cat egory 1 license at the time of Stadium’s application? In its next issue, Market East contends that Stadium wa s ineligible to apply for a Category 2 license under Section 1304(a) of the Gaming Act because one of its owners could be considered an affiliate “eligible to apply” for a Category 1 license at the time of Stadium’s application. Market East argues that, under the plain language of Section 1304(a), if a person or entity, or any affiliate of the person or entity, is eligible to apply for a Category 1 license, then the person, entity or affiliate is, “ per se ,” ineligible to apply for a Category 2 license. Market East assails what it con siders the Board’s disregard of this statutory restriction when it issued the Category 2 license to Stadium based on the Board’s alleged failure to consider Manoukian’s role in the ownership structures of both Stadium and Parx Casino. Market East claims that, at th e time of Stadium’s initial application, Stadium was ineligible to apply because Man oukian, as one of Stadium’s “affiliates,” was “eligible to apply” for a Category 1 license by virtue of his ownership interest in Parx Casino, through Greenwood — a Categor y 1 license holder. Market East contends that, even under Stadium’s revised post-lice nsing structure, it was still ineligible to apply for the Category 2 license, since, in its view, Manoukian retained a controlling interest in Stadium, through what it rega rds as Manoukian’s continuing control of Sterling Fiduciary.

Market East claims that Greenwood can be considered eli gible to apply for a Category 1 license since it is a current Category 1 license holder and, thus, it had to have been eligible to apply for such a license in orde r to get it. Further, Market East[J-59-2015 and J-60-2015] - 28

asserts that Greenwood continues to be eligible to apply since it is required under the Gaming Act to submit a renewal application for its Cat egory 1 license every three years. Market East additionally assails what it considers to be the Board’s overall failure to address the issue of the licensing requirements of Sectio n 1304(a)(1) in its Adjudication,

which omission it contends is reversible error. Market East Brief (J-60-2015) at 30. The Board first responds that Market East’s interpretati on contravenes the purpose of Section 1304(a), as it has consistently inter preted that section since the Gaming Act was enacted. The Board notes that, under Se ction 1304(a), a holder of a Category 1 license is required to be a racetrack facilit y which conducts racing on a specified number of days during the year, and which oth erwise maintains an active role in the racing business. The Board regards Section 1304( a)’s prohibitions against a Category 1 license holder also holding a Category 2 li cense as designed to ensure that the holder of a Category 1 license would not also be e ligible to acquire a Category 2 license for the same racetrack facility, as this would enabl e the Category 1 license holder to operate a casino without having to continue to conduct live racing, thereby subverting one of the primary legislative goals of th e Gaming Act — the enhancement of the sport of live horse racing in the Commonwealth. The Board also observes that Section 1301 of the Gaming Act requires that all Category 1, 2, and 3 slot machine licenses be awarded “ collectively and together in a comprehensive Statewide manner” within 12 months of th e date set by the Board for the receipt of completed applications by the Board. Board Brief (J-60-2015) at 31 (citing 4 Pa.C.S. § 1301). The Board suggests that this legislat ive focus on expediting the approval process to get slot machine facilities operationa l as quickly as possible supports the conclusion that Section 1304(a)’s terms relat ing to the application process[J-59-2015 and J-60-2015] - 29

refer to first-time applications for licenses after the Gaming Act took effect, not their subsequent renewal. Further, the Board stresses that the plain language of the Gaming Act itself supports its interpretation. The Board notes that, whe n it conducted the initial licensing process contemplated by Section 1304(a) in 2006, Greenwo od applied for, and was awarded, one of the six Category 1 licenses which were in itially made available. The Board asserts that, once it acquired this license, Greenwoo d’s status changed from that of an applicant to a license holder. As such, according to the Board, once Greenwood was awarded the Category 1 license for Parx Casino it w as no longer eligible to apply

for that license. The Board rejects Market East’s claim that, because a li cense holder must apply for renewal of a license every three years, the license holder can always be considered eligible to apply during the three year period cover ed by the license. The Board

contends that this would create an absurd result where a Category 1 license holder would be considered eligible to apply during the thr ee-year period that his or her license is active, and would only be out of “eligible to appl y” status for the period of time his or her renewal application is pending before the Board. Consequently, the Board considers Greenwood, at the time of Stadium’s applicatio n, to have been a Category 1 license holder, which was no longer eligible to apply f or a Category 1 license. The Board considers Market East’s arguments regarding the ow nership structure of Stadium to be irrelevant to our interpretation of the requi rements of Section 1304(a) and, instead, more salient to the question of whether the requirem ents of Section 1330 were met. Since our review of the Board’s interpretation of Sect ion 1304(a) involves a question of law, our review is de novo . Mason-Dixon Resorts, LP v. Pennsylvania[J-59-2015 and J-60-2015] - 30

Gaming Control Board, 52 A.3d 1087, 1093 (Pa. 2012) . Section 1304(a) of the Gaming Act provides: (a) Eligibility.—

(1) A person may be eligible to apply for a Category 2 license if the applicant, its affiliate, intermediary, subsidiary or holding company is not otherwise elig ible to apply for a Category 1 license and the person is seeking to locate a licensed facility in a city of the f irst class, a city of the second class or a revenue- or tourism-enhanc ed location. It shall not be a condition of eligibility t o apply for a Category 2 license to obtain a license from either the State Horse Racing Commission or the State Harness Racing Commission to conduct thoroughbred or harness race meetings respectively with pari-mutuel wagering. 4 Pa.C.S. § 1304 (emphasis added). In interpreting a provision of the Gaming Act we are guided by the principles embodied in our Statutor y Construction Act. Pennsylvania Gaming Control Bd. v. City Council of Philadelphia, 928 A.2d 1255, 1263 (Pa. 2007). The principally relevant provisions of the Statutory C onstruction Act applicable to this matter are: Section 1921(a), which specifies that “[t]he object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the General Assembly”, and that “[e]very statute shall be construed, if possible, to give effect to all its provisions,” 1 Pa.C.S. § 1921(a); and Section 1921( b), which instructs: “When the words of a statute are clear and free from all ambigui ty, the letter of it is not to be disregarded under the pretext of pursuing its spirit,” id. § 1921(b). The Statutory Construction Act also sets forth certain pr esumptions regarding the General Assembly's enactment of statutes which guide our i nterpretation in this instance, particularly that: “[w]ords and phrases shall b e construed according to rules of grammar and according to their common and approved usa ge,” 1 Pa.C.S. § 1903(a); the legislature “does not intend a result that is absurd , impossible of execution or unreasonable,” 1 Pa.C.S. § 1922(1); and the legislat ure intends the entirety of the[J-59-2015 and J-60-2015] - 31

statute to be certain, 1 Pa.C.S. § 1922(2). Addition ally, if the General Assembly defines words that are used in a statute, those definitions are binding. Young’s Sales and Service v. Underground Storage Tank Indemnification Bo ard, 70 A.3d 795, 801 (Pa. 2013). We note also that, when interpreting a statute, which has already been interpreted by an administrative agency tasked by the General Assembly with enforcing it, we accord deference to the agency’s interpretation i f the statute is ambiguous. Seeton v. Pennsylvania Game Commission, 937 A.2d 1028, 1037 (Pa. 2007). However, by contrast, if the statutory language is una mbiguous, or the agency’s interpretation has been developed in anticipation of litigation, then deference is not required, and our Court treats the question of interp retation as purely a matter of law. Malt Beverages Distributors Association v. Pa. Liquor Con trol Board, 974 A.2d 1144, 1154 (Pa. 2009). Applying these principles to Section 1304(a) of the Ga ming Act, and giving the terms of Section 1304(a) their ordinary and accepted m eaning, a “person” is eligible to apply for a Category 2 license if it, as “the applicant ” (or “its affiliate, intermediary, subsidiary, or holding company”), is “not otherwise elig ible to apply for a Category 1 license.” 4 Pa.C.S. § 1304(a). Utilizing the defini tions for these terms set forth in the Gaming Act, we first conclude that Stadium, as a limited liability corporation, is a “person” as that term is used in this section. See 4 Pa.C .S. § 1103 (defining “person” as “[a]ny natural person, corporation, foundation, o rganization, business trust, estate, limited liability company, licensed corporation, trust, partnership, limited liability partnership, association or any other form of legal bu siness entity”). Thus, in order for Stadium to have been eligible “to apply for” the Ca tegory 2 license with the Board — i.e., to commence the application process with the Boa rd — at the time of its[J-59-2015 and J-60-2015] - 32

application, neither it, nor “its affiliate, intermed iary, subsidiary or holding company,” could be “otherwise eligible to apply for a Category 1 license.” As the parties seemingly agree, Manoukian qualifies as an “affiliate” of Stad ium since Stadium is under the “common control” of Manoukian and other persons through intermediate business

entities. 25 See 4 Pa.C.S. § 1103 (defining “affiliate” as “[a] person that directly or indirectly, through one or more intermediaries, contro ls, is controlled by or is under common control with a specified person.”). The dispositi ve question, then, as to whether Stadium was eligible to apply for a Category 2 license under Section 1304(a) is, as contested by the parties, whether Manoukian was “ot herwise eligible to apply for a Category 1 license” at the time Stadium was applying f or its Category 2 license. 26 We agree with the Board that, generally, the Gamin g Act differentiates between the legal requirements a person must meet when first ap plying for a slot machine license for a particular facility, and for the renewal of said license. See 4 Pa.C.S. § 1325(a) (governing issuance of slot machine licenses); I d. § 1326(a) (governing renewal of such licenses). This lends support to the Bo ard’s contention that, once an initial applicant for a Category 1 license for a particu lar facility is successful, the application process has come to an end, and the applicant is, thereafter, a license holder for that facility subject to the Act’s license ren ewal requirements. See 4 Pa.C.S. § 1103 (defining “applicant” as “[a]ny person who, on his own behalf or on behalf of another, is applying for permission to engage in any a ct or activity which is regulated under the provisions of this part.”). Thus, we reject M arket East’s assertion that a person seeking renewal of an already-issued Category 1 gaming license must be regarded as “applying for” that license. However, Se ctions 1325 and 1326 are not

25 In this regard, we do not interpret the term “commo n control” to mean sole or majority control, as Section 1103 separately utilizes the terms “co ntrols” and “common control.” 26 In this context, we construe “otherwise” to mean “addi tionally.”[J-59-2015 and J-60-2015] - 33

dispositive of this question, as they do not establish the criteria which make a person

“ eligible to apply for

a Category 1 license.” These criteria are, instead, established by Section 1302 (a) of the Act which provides “[a] person may be eligible to apply for a Category 1 license to place and operate slot machines at a licensed racetrack facility” if the person meets any of four criteria set forth therein regarding that facility’s li censure for the conduct of live racing and wagering thereon. 4 Pa.C.S. § 1302. While Sect ion 1302 prohibits the issuance of more than one slot machine license for a particular licen sed racetrack facility, it does not, on its face, prohibit a Category 1 license holder such as Manoukian from being eligible to apply for another Category 1 license for a separate racetrack facility. We conclude that, so long as a person holding a Category 1 license for one facility meets the criteria set forth in Section 1302 with respect to a nother facility, the person continues to be “eligible to apply for a Category 1 l icense” for the other facility. 27 We cannot determine from this record, however, whether Ma noukian was “eligible to apply for a Category 1 license” for another facility at the time Stadium filed its application for the Category 2 license, since, as Market East points out, the Board failed to address the issue of the licensing requirements of Section 1304(a)(1) in its Adjudication. As resolution of this question requires additional findin gs of fact by the Board, and as our Court does not engage in fact-finding in the first in stance, we must remand to the Board for further proceedings on this issue. See Greenwood Ga ming, supra (remanding to the

Board for it to consider factual issue not addressed in li censing proceeding).

3. Whether Stadium was precluded from holding a Ca tegory 2 license under Section 1330 of the Gaming Act because an individua l holding an ownership

27 To be issued the license, such an applicant must, of course, also meet the requirements of Section 1303 and not be otherwise bar red by the provisions of Section 1330.[J-59-2015 and J-60-2015] - 34

interest in Stadium allegedly possessed a greater t han 33.3 percent ownership interest in a racetrack/casino that is a Category 1 licensed facility?

Market East next argues that the Board, in granting t he license to Stadium, violated Section 1330 of the Gaming Act because an ind ividual holding an ownership interest in Stadium possessed a greater than 33.3% owne rship interest in a racetrack/casino that is a Category 1 licensed facility. 28 Market East argues that the Board engaged in only a “cursory” analysis of the issue o f Stadium’s compliance with Section 1330, and did no “in-depth analysis on this poi nt” in its Adjudication, despite the putative existence of myriad “red flags” in the eviden tiary record pertaining to this question. Market East Brief (J-60-2015) at 31-32. Marke t East reminds that, during the licensing process, the Bureau of Investigation and Enforce ment and the Board itself had

serious concerns about whether Manoukian’s interests in both Greenwood and Stadium violated Section 1330, and that Stadium specifically d eveloped and entered into the record its proposed post-licensing structure as a deliberat e “work around,” to ensure that the equity interests of Manoukian would be within the statutorily mandated proportions after the license was granted. Id. at 36. With respect to Stadium’s proposed post-licensing structure, as it pertains to ownership of the corporate trustee, Sterling Fiduciary , Market East argues that Manoukian did not relinquish any actual ownership or con trol of this corporation, but rather, ceded only what it terms “paper power” over t his entity, due to the fact that, when Manoukian resigned his position as president and treasurerof Sterling Fiduciary, a longtime business associate of his was installed in those position s, and other family

28 The Board argues this issue is waived due to Market East’ s failure to raise the issue before the Board. Board Brief (J-60-2015) at 39 n.1 7. However, we reject this claim for the same reasons we rejected the Board’s similar claim th at Market East’s first issue was waived. See supra Part II.B.1.[J-59-2015 and J-60-2015] - 35

members continue to be shareholders in Sterling Fiduciar y. Market East Brief at 35. Market East contends that these factors, as well as certai n financial transactions and arrangements made by Manoukian, the full details of wh ich are outlined in the sealed record in this matter, collectively establish that these transfers were a “sham,” as Manoukian yielded no actual ownership or control of Ste rling Fiduciary. Market East claims that the nature of these transactions raises a legi timate presumption that Manoukian continues to hold the controlling interest in Sterling Fiduciary and that this arrangement contravenes Section 1330. Market East decrie s the Board’s failure to address these matters in its Adjudication, as well as i ts lack of discussion as to whether its consideration of Stadium’s post-licensing structure was appropriate under the Act. It

contends that the Board committed an error of law thro ugh its failure to engage in any reasoned legal analysis of these questions. 29 The Board responds that, under the plain language of Section 1330, the relevant ownership structure that must be considered is that which e xisted at the time the license was issued; hence, the Board contends that it properly considered the revised ownership structure, which Stadium submitted after the r ecord was re-opened. The Board points out there is nothing in either the text of the Gaming Act or its own regulations which prohibits its consideration of that stru cture. The Board further asserts that, because the corporate d ocuments pertaining to the formation of the corporate trustee — Sterling Fi duciary — show that it is controlled by a board of directors that Manoukian does not sit on, he has no control over its decisions. Thus, the Board considers the assets, which Sterl ing Fiduciary possesses in the capacity of trustee, to be held for the benefit o f others, and, thus, that Sterling

29 Amicus

Chester Downs aligns with Market East’s contention that S tadium’s ownership structure violates Section 1330.[J-59-2015 and J-60-2015] - 36

Fiduciary cannot be regarded as either owning or havin g a financial interest in those assets. Hence, the Board reiterates its contention, advan ced in its Adjudication, that none of the assets Sterling Fiduciary holds in the Ster ling Investors Trust can be considered to be owned by Manoukian and, thus, that the only share of Stadium properly attributed to Manoukian is derived from his o wnership interest in Greenwood multiplied by Greenwood’s ownership interest in Stadi um — yielding a total ownership interest of 28%. The Board maintains that, even if M anoukian somehow controlled Sterling Fiduciary, that control would be irrelevant for purposes of a Section 1330 analysis, since that section only establishes restrictions on a slot machine licensee’s possession of an “ownership” or “financial interest” in an other slot machine licensee, but does not contain any prohibitions on the licensee’s abili ty to control another licensee. The relevant portion of Section 1330 provides:

No slot machine licensee, its affiliate, intermediary, subsidiary or holding company may possess an ownership or financial interest that is greater than 33.3% of an other slot machine licensee or person eligible to apply for a Cate gory 1 license, its affiliate, intermediary, subsidiary or hold ing company. The board shall approve the terms and condit ions of any divestiture under this section.

* * * No such slot machine license applicant shall be issued a slot machine license until the applicant has completely diveste d its ownership or financial interest that is in excess of 3 3.3% in another slot machine licensee or person eligible to apply for a Category 1 license, its affiliate, intermediary, subsidiary or holding company. 4 Pa.C.S. § 1330. Considering the plain meaning of the language of th is provision, we agree with the Board that these restrictions on ownership and fina ncial interest are applicable only after a slot machine applicant has been issued a license b y the Board and becomes a “licensee.” Indeed, the language of Section 1330 speci fically allows an applicant to[J-59-2015 and J-60-2015] - 37

divest itself of any ownership or financial interest in another licensee during the licensing process in order to be under the 33.3% limit. Hence, we discern no error in the Board’s consideration, during the process of making it s licensure decision, of the ownership structure which Stadium proposed to have if i ssued a license. However, that does not end the matter. Section 1330 , by its terms, prohibits a slot machine licensee, or its affiliate, intermediary, subsidiary, or holding company from possessing “an ownership or financial interest that is grea ter than 33.3%” in another slot machine licensee, or its affiliate, intermediary, subsid iary, or holding company. 4 Pa.C.S. § 1330. Consequently, the Board is require d by Section 1330 to examine the percentage of both the ownership and the financial interest 30 that an existing license holder will possess in a licensee after the license is issued. Notably, the Board considered only the percentage ownership interest which M anoukian would have in Stadium, post licensure, through his ownership interest in Sterling Fiduciary; however, it did not discuss at all in its Adjudication the financial interest, if any, which Manoukian may have after the restructuring in Sterling Fiduciar y, the Sterling Investors Trust, and, ultimately by extension, in Stadium due to certain fi nancial transactions and commitments of financial support he made during the a pplication process referenced — the details of which are part of the sealed confidenti al record in this matter — or through any other financial transaction. As this factual determi nation of Manoukian’s financial interest in Stadium post-licensure is necessary to ascertai n whether Stadium’s postlicensing structure ran afoul of Section 1330, and since it is not our role to make such a

30 The Gaming Act itself does not define the term “fina ncial interest” as it is used in Section 1330, but this term has been defined by the Bo ard in the regulations it promulgated pursuant to the Act. See, e.g., 58 Pa. Code § 403a.1 (defining “financial interest” as “[a]n ownership, property, leasehold or ot her beneficial interest in an entity”). Thus, on remand, we leave to the Board to determine in the first instance the applicable definition of “financial interest” as that term is used in Section 1330.[J-59-2015 and J-60-2015] - 38

determination in the first instance, we must remand to the Board for further proceedings with respect to this question.

4. Whether the Board arbitrarily and capriciously disregarded the evidence of record in awarding the Category 2 license to Stadiu m? In its final issue, Market East contends that the Board a rbitrarily and capriciously disregarded the record evidence in awarding the Catego ry 2 license to Stadium. In its brief, Market East marshals the evidence it presented to the Board in support of its application, and proffers that, because the Board alleg edly arbitrarily and capriciously disregarded this evidence when it decided to award the Category 2 license to Stadium, we should overturn its decision. However, as we have sta ted previously, “the Act does not grant us authority to act as a super-Board, employi ng our own discretion in determining which applicant we believe was the best app licant. We are not empowered to sift through the voluminous evidence, reweighing i t.” Mason-Dixon Resorts, 52 A.3d at 1107 (internal quotation marks omitted). Applying this highly deferential standard of review, we conclude that the Board did not abuse its d iscretion in awarding the license to Stadium based on the myriad factors it outlined in its Adjudication and which we have discussed, supra, at pages 10-11.

III. Conclusion

. For the foregoing reasons, the order of the Board mu st be affirmed in part, vacated in part, and the matter remanded for further proceedings, per the attached Order. Because the Order of necessity discusses matters conta ined in the sealed record, the public version of the Order is partially re dacted. 31

31 SugarHouse has filed an “Application for Leave to F ile Post-Submission Communication,” renewing its request for oral argument which our Court previously denied. While we grant the application to file the post-submission communication, we deny the request for oral argument.[J-59-2015 and J-60-2015] - 39

Chief Justice Saylor and Justices Baer, Donohue, Doughert y and Wecht join the opinion. Justice Wecht files a concurring opinion.