IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Louis A. DeNaples, :

Petitioner :

:

v. : No. 2074 C.D. 2015

: Argued: September 14, 2016

Pennsylvania Gaming :

Control Board, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: December 2, 2016

Louis A. DeNaples petitions for review of an adjudication of the 

Pennsylvania Gaming Control Board (Board) that denied DeNaples’ request to 

modify two prior orders of the Board. DeNaples argues that these orders have

prevented him and his companies from doing business with the Mount Airy Casino 

Resort. DeNaples challenges the procedures by which the Board voted to deny his 

requested relief; the Board’s interpretation of its prior orders; and the propriety of 

the Board’s prohibitions on his ability to do business in the gaming industry. We 

affirm. 

Background

In 2007, the Gaming Board issued a Category 2 Slot Machine License 

to Mount Airy #1, LLC, d/b/a Mount Airy Casino Resort (Mount Airy) and a 
2

Principal License to DeNaples, the sole owner of Mount Airy. In 2008, the 

Board’s Bureau of Investigations and Enforcement (Bureau)1accused DeNaples of 

making false statements to the Bureau during its background investigation on the

license applications. When DeNaples was arrested and charged with perjury, the 

Board suspended DeNaples’ Principal License. In addition, the Board forbade

DeNaples from receiving compensation, consideration, or distribution of funds 

related to Mount Airy or from exercising any control over Mount Airy. With 

Board approval, Mount Airy appointed a trustee to oversee the casino’s operations. 

In 2009, the Dauphin County District Attorney withdrew the perjury 

charge against DeNaples. The Board conditionally lifted its suspension of 

DeNaples’ Principal License, but it continued to restrict his involvement in Mount 

Airy’s operations. Mount Airy filed a petition with the Board, seeking, among 

other things, to vacate the Board’s previous orders. On September 23, 2009, the 

Board granted Mt. Airy’s petition, but it imposed certain conditions to limit 

DeNaples’ interest in, and control of, Mount Airy. Condition 13 of the order, for 

example, provided: 

That Louis A. DeNaples may not receive, directly or indirectly, 

any remuneration, cash, or property distributions, from the 

Grantor II Trust of Lisa A. DeNaples, Mount Airy #1, LLC or 

Mount Airy Holdco, LLC, other than principal payments and 

interest payments from the various loans made to the Grantor II 

Trust of Lisa A. DeNaples. 

 

1

The Bureau of Investigations and Enforcement is an independent bureau within the Board, 

responsible, in part, for investigating and reviewing applicants and their applications for licenses, 

permits, or registrations. 4 Pa. C.S. §1517(a).
3

Certified Record (C.R.) Item 1, Exhibit C, at 4; Reproduced Record at 58a (R.R. 

__). 

In 2011, the Court of Common Pleas of Dauphin County expunged 

DeNaples’ arrest record and ordered that “no one, including law enforcement, state 

licensing authorities, or other government officials, is permitted access to 

[DeNaples’ expunged records]....” C.R. Item 1, Exhibit F, at 1; R.R. 67a. 

Following the expungement, Mount Airy filed a petition seeking, inter alia, an 

amendment to the Board’s September 23, 2009, Order to lift all restrictions on 

DeNaples. On June 13, 2012, the Board denied Mount Airy’s request, stating that 

the restrictions in the September 23, 2009, Order remained in place. The Board’s 

order also allowed DeNaples’ Principal License to expire and his renewal 

application to be withdrawn without prejudice. Nevertheless, the Board imposed 

conditions similar to those that had appeared in its September 23, 2009, Order. For 

example, Condition 5 in the June 13, 2012, Order provides as follows: 

The Children’s Trusts, Mount Airy #1, LLC (“Mount Airy”) or 

Mount Airy Holdco, LLC[] (“Holdco”) may not provide Louis 

A. DeNaples, directly or indirectly, any remuneration, cash or 

property distributions from any of the Children’s Trusts, Mount 

Airy or Holdco without prior Board approval. 

C.R. Item 1, Exhibit I, at 2; R.R. 162a. Mount Airy petitioned the Board for a

declaration that its June 13, 2012, Order did not prohibit Mount Airy from 

contracting with a business in which DeNaples had an ownership interest. The 

Board did not act upon that petition. 

Mount Airy then petitioned the Board to modify its September 23, 

2009, and June 13, 2012, Orders to allow Mount Airy to contract with a business in 

which DeNaples had an ownership interest. A public hearing was held. The 
4

petition was tabled for a period of 90 days for the Office of Enforcement Counsel2

and DeNaples to meet and discuss the scope of any background investigation 

required. When no agreement was reached, the Board denied Mount Airy’s 

petition without prejudice. 

On February 2, 2015, DeNaples petitioned the Board to modify its

September 23, 2009, and June 13, 2012, Orders to remove all conditions that 

prevent him and his companies from doing business with Mount Airy. In this 

petition, DeNaples asserted, among other things, that the Board was prohibited 

from investigating his 2008 perjury charge because the Dauphin County Court of 

Common Pleas had expunged those arrest records. DeNaples also asserted that the 

Board’s continuing imposition of restrictions on him and his companies violated 

his state and federal constitutional rights. The Board had no reasonable basis to 

treat him and his companies differently than other gaming service providers. 

Finally, DeNaples alleged that the Board’s position that he was unfit to do business 

with Mount Airy was discriminatory and unsupported by the record. The Office of 

Enforcement Counsel filed an “Answer, Objection and New Matter,” to which

DeNaples filed a response.

A public hearing was held. The Board voted four to three in favor of 

granting DeNaples relief. The Board, nevertheless, denied DeNaples’ petition 

because there was not a qualified majority vote in his favor.

3

 The three dissenting 

 

2

The Office of Enforcement Counsel is established within the Bureau and acts as the prosecutor 

in all noncriminal enforcement actions initiated by the Bureau. 4 Pa. C.S. §1517(a.2).

3 By way of background, Section 1201(b) of the Pennsylvania Race Horse Development and 

Gaming Act (Gaming Act) provides that the Board “shall consist of the following members: (1) 

Three members appointed by the Governor. (2) One member appointed by each of the 

following: (i) The President pro tempore of the Senate. (ii) The Minority Leader of the Senate. 

(iii) The Speaker of the House of Representatives. (iv) The Minority Leader of the House of 

(Footnote continued on the next page . . . )
5

Board members filed an adjudication explaining their votes. They opined that a 

full vetting would be required before the Board could lift the restrictions it had 

imposed on DeNaples because his conduct in the perjury case involved potential 

untruthfulness to the Board. Although the Dauphin County District Attorney 

decided to not pursue criminal charges against DeNaples, and the related record 

was expunged, it did not follow that the alleged misconduct did not occur. The 

dissenting members found that the expungement orders did not prohibit either the 

Bureau or the Office of Enforcement Counsel from inquiring into DeNaples’ 

history. DeNaples had never explained the circumstances underlying his perjury 

charge. The Board further explained that information available online could serve 

as an independent basis for inquiry. The Board concluded that it had a reasonable 

basis to treat DeNaples differently than other gaming service providers by fully

vetting him. 

DeNaples filed two petitions for reconsideration, in which he argued 

that the Board erred in requiring a qualified majority vote to grant his petition. 

Alternatively, he argued that the qualified majority vote rule is unconstitutional. 

The Board did not act on DeNaples’ petitions. DeNaples now petitions for this 

Court’s review.

4

 

(continued . . . )

Representatives.” 4 Pa. C.S. §1201(b). The Gaming Act further provides that a qualified 

majority vote consists of at least one gubernatorial appointee and the four legislative appointees. 

4 Pa. C.S. §1201(f). Section 1201(f) is discussed in greater detail later in this opinion.

4 Our review of the Board decision is to determine whether the Board: “(1) erred as a matter of 

law; or (2) acted arbitrarily and in capricious disregard of the evidence.” Philadelphia 

Entertainment and Development Partners, L.P. v. Pennsylvania Gaming Control Board, 34 A.3d 

261, 267 (Pa. Cmwlth. 2011). 
6

Appeal

In his petition for review, DeNaples raises six issues, which we 

combine into three for clarity. First, he argues that the Board erred in requiring a 

qualified majority of its members to act favorably on his petition. Alternatively, 

DeNaples contends that the qualified majority vote rule is unconstitutional. 

Second, DeNaples argues that the Board erred in finding that the September 23, 

2009, and June 13, 2012, Orders prohibit Mount Airy from contracting with a 

business in which he has an ownership interest. Third, DeNaples asserts that the 

Board erred in holding that it can subject him to a full vetting to become a gaming 

service provider of Mount Airy. We address these issues seriatim. 

I.

In his first issue, DeNaples argues that the Board erred in requiring a 

qualified majority vote to grant his petition to modify the Board’s September 23, 

2009, and June 13, 2012, Orders. DeNaples asserts that a qualified majority vote 

applies only to matters involving “gaming licenses or orders or acts made by one 

or more members of the Board,” which does not include a petition to modify a 

Board order. Petitioner’s Brief at 63. DeNaples notes that when issuing the 

September 23, 2009, and June 13, 2012, Orders, the Board employed a simple 

majority vote. It follows that a modification of those orders should likewise 

require no more than a simple majority vote. Even so, DeNaples argues that the 

qualified majority vote rule is unconstitutional, facially and as applied to his 

petition. 

The Board counters that all of its actions require a qualified majority 

vote, except for imposition of a sanction in an enforcement-type action. A petition 
7

to modify a Board order does not meet this exception. The Board also rejects 

DeNaples’ claim that it used a simple majority vote when it issued the September 

23, 2009, and June 13, 2012, Orders; rather, it used the qualified majority vote. 

Finally, the Board argues that this Court lacks jurisdiction to hear DeNaples’ 

constitutional challenges to the qualified majority vote rule because the 

Pennsylvania Supreme Court has exclusive jurisdiction over those claims.

The Pennsylvania Race Horse Development and Gaming Act 

(Gaming Act), 4 Pa. C.S. §§1101-1904, requires a qualified majority vote for 

certain Board actions. Section 1201(f) of the Gaming Act provides:

(f) Qualified majority vote.--

(1) Except as permitted in paragraphs (2) and (3), 

any action, including, but not limited to, the 

approval, issuance, denial or conditioning of any 

license by the board under this part or the making 

of any order or the ratification of any permissible 

act done or order made by one or more of the 

members, shall require a qualified majority vote 

consisting of at least one gubernatorial appointee 

and the four legislative appointees.

(2) Any action to suspend or revoke, not renew, 

void or require forfeiture of a license or permit 

issued under this part, to impose any 

administrative fine or penalty under this part or to 

issue cease and desist orders or similar 

enforcement actions shall require a majority vote 

of all the members appointed to the board.

(3) Notwithstanding any other provision of this 

part or 65 Pa. C.S. § 1103(j) (relating to restricted 

activities), a member shall disclose the nature of 

his disqualifying interest, disqualify himself and 

abstain from voting in a hearing or proceeding 

under this part in which his objectivity, 

impartiality, integrity or independence of judgment 

may be reasonably questioned, as provided in 
8

subsection (h)(6) or section 1202.1(c)(3) (relating 

to code of conduct). If a legislative appointee has 

disqualified himself, the qualified majority shall 

consist of all of the remaining legislative 

appointees and at least two gubernatorial 

appointees.

4 Pa. C.S. §1201(f) (emphasis added). The Board has promulgated similar 

regulations regarding participation in meetings and voting. See 58 Pa. Code 

§403a.2.

We agree with the Board that it properly applied a qualified majority 

vote to decide DeNaples’ petition. All actions of the Board, except those 

specifically enumerated, require a qualified majority vote. 4 Pa. C.S. §1201(f)(1). 

The enumerated actions subject to a simple majority vote under Section 1201(f)(2), 

such as suspension, revocation, or forfeiture of a license, are all administrative 

sanctions. DeNaples’ petition to modify the Board’s orders is not one of those

enumerated actions. We reject DeNaples’ contrary argument. By including the 

phrase “including, but not limited to” in Section 1201(f)(1), the legislature 

intended that the qualified majority vote rule apply to not just the specific actions 

identified in that subsection. 4 Pa. C.S. §1201(f)(1). Stated otherwise, an action 

that is not specifically listed under Section 1201(f)(1) may nonetheless require a 

qualified majority vote, so long as it is not an enumerated exception in Section 

1201(f)(2). The Board did not err in applying a qualified majority vote to 

DeNaples’ petition. 

We also agree with the Board that this Court does not have 

jurisdiction to hear DeNaples’ constitutional challenge to the qualified majority 

vote rule. Section 1904 of the Gaming Act, 4 Pa. C.S. §1904, provides:

The Pennsylvania Supreme Court shall have exclusive 

jurisdiction to hear any challenge to or to render a declaratory 
9

judgment concerning the constitutionality of this part.

[5] The 

Supreme Court is authorized to take such action as it deems 

appropriate, consistent with the Supreme Court retaining 

jurisdiction over such a matter, to find facts or to expedite a 

final judgment in connection with such a challenge or request 

for declaratory relief.

4 Pa. C.S. §1904 (emphasis added). DeNaples’ challenge to the qualified majority 

vote rule in Section 1201(f) of the Gaming Act, 4 Pa. C.S. §1201(f), falls squarely 

within the Supreme Court’s exclusive jurisdiction. This Court, accordingly, has no 

jurisdiction to consider that claim.

II.

DeNaples argues, next, that the Board erred in finding that its

September 23, 2009, and June 13, 2012, Orders prohibit Mount Airy from 

contracting with a business in which DeNaples has an ownership interest. 

DeNaples construes these orders to prohibit him from receiving compensation 

from Mount Airy, but not to prohibit Mount Airy from contracting with his

businesses. DeNaples also argues that the Board, through its broader interpretation 

of the two orders, effectively adjudicated him and his companies as “Prohibited 

Gaming Service Providers”6 without following the established regulations and 

procedures for making such a designation. As a result, his due process rights were 

violated. Even assuming that the Board can interpret its own orders in this way,

DeNaples argues that the language of the two orders was ambiguous and, thus, 

deprived him of adequate notice. The Board responds that DeNaples waived any

 

5

“[T]his part” refers to the entire Gaming Act, codified in Part II of Title 4 of the Pennsylvania 

Consolidated Statutes, 4 Pa. C.S. §§1101-1904.

6

See Section 1317.2(g) of the Gaming Act, 4 Pa. C.S. §1317.2(g), discussed in greater detail 

infra.
10

claim regarding the language of the September 23, 2009, and June 13, 2012,

Orders by failing to raise it before the Board. In any case, the Board argues that it 

did not treat DeNaples or his businesses as de facto prohibited gaming service 

providers because it never identified any of these businesses as having violated the 

Board’s regulations. 

Initially, we consider whether DeNaples’ claims regarding the 

Board’s September 23, 2009, and June 13, 2012, Orders are ripe for review.7 A 

court of law lacks “the ability to grant any relief that is merely advisory, one that 

does not involve any case or controversy.” Brown v. Pennsylvania Liquor Control 

Board, 673 A.2d 21, 23 (Pa. Cmwlth. 1996). Stated otherwise, an action “may not 

be employed to determine rights in anticipation of events which may never occur 

... or as a medium for the rendition of an advisory opinion which may prove to be 

purely academic.” Id. An issue that “may” arise in the future “is not considered 

‘ripe’ for judicial interpretation.” Id. (citation omitted). As this Court observed in 

Texas Keystone Inc. v. Department of Conservation and Natural Resources, 851 

A.2d 228, 239 (Pa. Cmwlth. 2004) (citations omitted), ripeness “arises out of a 

judicial concern not to become involved in abstract disagreements of 

administrative policies.... It has been defined as the presence of an actual 

controversy.... It insists on a concrete context, where there is a final agency action 

so that the court can properly exercise their function.” 

Whether the Board has interpreted its September 23, 2009, and June 

13, 2012, Orders as prohibiting Mount Airy from contracting with DeNaples’ 

 

7

The Board does not raise the issue of ripeness. However, because ripeness is a jurisdictional 

issue, we may raise it sua sponte. Texas Keystone, Inc. v. Department of Conservation and 

Natural Resources, 851 A.2d 228, 239 n.17 (Pa. Cmwlth. 2004).
11

businesses is unclear. The Board did not make that determination in the final order 

that has been appealed in this case. As DeNaples concedes, the only issue on 

which the Board voted was whether the restrictions imposed on Mount Airy by the 

September 23, 2009, and June 13, 2012, Orders should be lifted. Petitioner’s Brief 

at 40. DeNaples did not question, and the Board did not consider, whether those 

restrictions applied to his businesses. DeNaples essentially asks this Court to 

interpret the language of the two Orders as authorizing Mount Airy to contract with 

his businesses before the Board has had an opportunity to make that determination. 

Until the Board acts, there is no controversy for this Court to review. 

DeNaples also argues that the Board’s interpretation of these orders 

has effectively made him and his businesses prohibited gaming service providers

without following the statutory procedures applicable thereto. Section 

1317.2(g)(2) of the Gaming Act provides: “[t]he board shall ... [d]evelop and 

maintain a list of prohibited gaming service providers. An applicant for a slot 

machine license or a slot machine licensee may not enter into an agreement or 

engage in business with a gaming service provider listed on the prohibited gaming 

service provider list.” 4 Pa. C.S. §1317.2(g)(2). The Board’s regulation provides 

the criteria for placement on the prohibited gaming service provider list: 

(c) The Board may place a person on the prohibited gaming 

service providers list if:

(1) The gaming service provider has failed to 

comply with this chapter.

(2) The gaming service provider has failed to 

cooperate with Board staff in its review and 

investigation of the gaming service provider’s 

application.
12

(3) The gaming service provider’s application for 

certification or registration has been denied or 

withdrawn with prejudice or the gaming service 

provider has had its gaming service provider 

certification or registration suspended or revoked.

(4) The gaming service provider has failed to 

provide information to a slot machine applicant or 

licensee that is necessary for the slot machine 

applicant or licensee to comply with this chapter.

58 Pa. Code §437a.8(c). In short, the Board has authority to name an individual or 

business, that has violated the regulation, as a prohibited gaming service provider

and prohibit that provider from contracting with a slot machine licensee. 

Here, the Board voted to deny DeNaples’ petition to modify its two

prior Orders, thereby leaving in place the restrictions imposed on Mount Airy. 

However, the Board did not prohibit DeNaples or his businesses from contracting 

with other slot machine licensees. Nor did the Board find that either DeNaples or 

his businesses had violated the regulation or place either one on the prohibited 

gaming service provider list. As the dissenting members stated in the adjudication: 

“[n]o one on this Board has concluded that DeNaples has done anything 

improper.... Indeed, Chief Enforcement Counsel ... has repeatedly stated that his 

only desire is to clarify the record in an earlier investigation of DeNaples....” 

Board Adjudication, 9/24/2015, at 12; C.R. Item 15, at 12. Because the Board has 

not placed DeNaples or his businesses on the prohibited gaming service provider 

list, we conclude that DeNaples’ claim is not ripe for review.

III.

Finally, DeNaples argues that the Board erred in finding that he 

should be subject to a full vetting to become a gaming service provider of Mount 

Airy. DeNaples argues that he should not be subject to any background 
13

investigation because he intends to do less than $100,000 of business with Mount 

Airy.8 He asserts that the decision to impose a full vetting on him is 

discriminatory, lacks reasonable basis, and violates his constitutional rights. 

DeNaples further argues that because the Bureau and the Office of Enforcement 

Counsel are bound by the Dauphin County court’s order expunging the records of 

DeNaples’ arrest for perjury in 2008, they cannot consider his arrest record or any

information about his arrest that was independently discovered. DeNaples asks 

this Court to order the Board to “preclude [the Bureau/Office of Enforcement 

Counsel] from accessing and/or using any of these expunged records against [him] 

in any form of vetting or background investigation.” Petitioner’s Brief at 56. The 

Board counters that DeNaples’ challenge to the scope of his background 

investigation is not ripe for this Court’s review. We agree. 

 

8

Section 437a.1 of the Board’s regulation provides, in relevant part:

(a) Except as provided in §437a.10 (relating to emergency gaming service 

provider), a gaming service provider or person seeking to conduct business with a 

slot machine applicant or licensee shall apply to the Board for registration if:

(1) The total dollar amount of the goods or services to be provided 

to a single slot machine applicant or licensee or to multiple slot 

machine applicants or licensees will be or is anticipated to be equal 

to or greater than $100,000 but less than or equal to $500,000 

within a consecutive 12-month period.

* * *

(i) A gaming service provider of a slot machine applicant or licensee whose 

compensation does not exceed the monetary thresholds contained in this section 

... may be required to be registered or certified if the Board determines that 

registration or certification is necessary to protect the integrity of gaming.

58 Pa. Code §437a.1. DeNaples argues that he need not be subject to any background 

investigation because the Board never determined in his case that registration or certification was

required to protect the integrity of gaming. Petitioner’s Brief at 46. 
14

In the adjudication, the dissenting Board members suggested that the 

Bureau do a full vetting on DeNaples before the restrictions on Mount Airy can

ever be lifted. However, the only issue before the Board, as noted earlier, was

whether to grant DeNaples’ petition to lift the restrictions imposed on Mount Airy 

by the September 23, 2009, and June 13, 2012, Orders. When he filed this petition, 

DeNaples had not been subject to vetting by the Bureau; in fact, he has not been

vetted since 2006. There is simply no final agency action on the vetting issue for 

this Court to review. Although DeNaples may disagree with the dissenting Board 

members’ suggestion that he be fully vetted, this Court will not “become involved 

in abstract disagreements of administrative policies.” Texas Keystone, 851 A.2d at 

239. Determining the scope of DeNaples’ background investigation at this 

juncture would be an improper advisory opinion.

Conclusion

For all of these reasons, we affirm the Board’s September 2, 2015,

order.

 _________________________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Louis A. DeNaples, :

Petitioner :

:

v. : No. 2074 C.D. 2015

:

Pennsylvania Gaming :

Control Board, :

Respondent :

O R D E R

AND NOW, this 2nd day of December, 2016, the order of the 

Pennsylvania Gaming Control Board dated September 24, 2015, in the abovecaptioned matter is hereby AFFIRMED. 

_______________________________________

 MARY HANNAH LEAVITT, President Judge