### [J-133-2016and J-134-2016] IN THESUPREME COURT OF 

### PENNSYLVANIA EASTERN DISTRICT 

### SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY,WECHT, MUNDY,

### JJ.

SUGARHOUSE HSP

### GAMING, L.P., : No. 124 EM2016 Petitioner

v.


### PENNSYLVANIA GAMINGCONTROL BOARD, : 

### Appeal fromthe 

### Supplemental

: 

### Adjudication ofthe 

### Pennsylvania

: 

### Gaming Control Board inthe matter of

: the

### Applicationsforthe

### Category 2 Slot

: 

### Machine License intheCity of the First

: Class, Philadelphia, datedJune 23,

: 2016 

### SUBMITTED: November 7, 2016 

### Respondent STADIUM CASINO, LLC, 

### Intervenor MARKET EASTASSOCIATES, LP, : No. 125 EM2016 Petitioner : 

### Appeal fromthe 

### Supplemental

: 

### Adjudication ofthe 

### Pennsylvania

: 

### Gaming Control Board inthe matter of v. : the

### Applicationsforthe

### Category 2 Slot

: 

### Machine License in the Cityof the First

: Class, Philadelphia, datedJune 23, 

### PENNSYLVANIA GAMINGCONTROL : 2016 BOARD, Respondent STADIUM CASINO, LLC, 

### Intervenor SUBMITTED: November 7, 2016



### OPINION JUSTICE TODD DECIDED: 

### June20,2017

### These matters return to us 

### following our prior decision on March 29, 2016, in which we affirmed in part, and 

### vacated in part, the 

### November 18, 2014 order of the 

### Pennsylvania GamingControl Board ("Board")

# - awarding the last 

### remaining Category 2 slot 

### machine license providedfor bythe 

### Pennsylvania Race Horse 

### Development and Gaming 

### Act ("Gaming Act")1 to 

### applicant Stadium Casino, 

### L.L.0 ("Stadium")

# - and 

### remanded this matter tothe Boardfor the limited purpose of 

### addressing two issues: (1) 

### whetherWatche Manoukian, an 

### individualwho is an 

### affiliate of 

### Stadium,was eligible to 

### apply for a 

### Category 1 slot machine license at the time of 

### Stadium's application forthe 

### Category 2 license, in 

### violation of 

### Section 1304(a)(1) of the Gaming Act;2 and (2) 

### whether, after the issuance of the 

### Category 2 

### license to 

### Stadium, Manoukian will 

### possess a

### financial interest in thatentity

### greaterthan 33.3%, in

### violation ofSection 1330 of the Gaming Act.3 

### See SugarHouse HSP Gaming, LP v. 

### Pennsylvania Gaming Control Board, 136 A.3d 457 (Pa. 2016) 

### ("SugarHouse r).4 The Board issued a 

### "Supplemental Adjudication" onJune23, 2016, inwhich both issueswere addressed. SugarHouse HSP Gaming ("SugarHouse"), the present holder of a 

### Category 2 slot machine license for a 

### casino it 

### operates in 

### Philadelphia, and Market East 

### Associates, L.P. ("Market East"), an 

### unsuccessful applicant for the 

### Category 2 license awarded to 

### Stadium, have both filed 

### petitions for review from 

### that Supplemental Adjudication.5 Aftercareful consideration, we 

### dismiss SugarHouse's petitionfor review, 

### docketed at 124 EM 2016,

### finding it was not entitled to 

### intervene in the 

### proceedings on

1 4 Pa.C.S. §§ 1101-1904. 2 4 Pa.C.S. § 1304. 3 4 Pa.C.S. § 1330. 4 As we 

### explained in 

### that opinion, the Gaming Act 

### establishes three separate categories of slot machine licenses, 

### Category 1, 

### Category 2, and 

### Category 3, and it 

### specifically providedthattwo

### Category 2 slot machine licenses 

### wereto be issued forthe City of 

### Philadelphia. SugarHouse I, 136A.3d at461;4 Pa.C.S. § 1301-1305. 5 

### We have 

### consolidatedthesepetitionsforpurposes of

### conductingour review.



### [J-133-2016and

### J-134-2016] - 2remand. In 

### Market East's petition

### for review, 

### docketed at 125 EM 2016, we affirm the 

### Board's determination that Manoukian was not 

### eligible to 

### apply for a 

### Category 1 slot 

### machine license at the 

### time of 

### Stadium's application for its 

### Category 2 license, and, thus, that Section 1304(a)(1) 

### would not be 

### violated by the 

### issuance of a 

### Category 2 

### licenseto 

### Stadium. However, we reversethe Board's determination ofwhat constitutes

a 

### "financial interest" as 

### that term is used in 

### Section 1330, and we 

### define that term herein. Because the Board has 

### admitted that it has not 

### determined the nature of the 

### specific "equity infusion" Manoukian will 

### supply post-licensure to the

### trustwhich has an 

### ownership interest in 

### Stadium, we 

### presently cannot affirm the 

### Board's conclusion that Manoukian will not be in 

### violation of Section 1330's 33.3% limit on the possession of a 

### financial interest in a 

### Category 2 slot machine licensee by 

### another slot machine licensee. Thus,we again remand for

### further proceedingsconsistentwith 

### thisopinion.
I. 

### Background To briefly recap the 

### factual history of 

### this matter, a more 

### detailed recitation of which may be found in 

### SugarHouse I, in 2006, the Board awarded one of the two 

### Category 2 

### licenses allotted under the Gaming Act for Philadelphia to 

### SugarHouse, which, in 2010, opened an "interim" casino located on the eastern side of 

### Philadelphia
near the 

### Delaware River. In 2014, 

### SugarHouse commenced construction of an 

### expansion of this 

### facility at 

### that location, which has since been 

### completed and is 

### currently in

### operation. Initially, the Board 

### awarded the second Category 2 license for Philadelphia to Foxwood Casino; however, in 2010, the Board revoked this license due to 

### Foxwood's inabilityto raise the 

### necessary moneyto build the facility, and the Board reopened the application process. 

### Thereafter, four entities, including Stadium and Market East, filed 

### applications with the Board 

### seeking licensure, and the Board 

### conducted background

[J-133-2016 and

### J-134-2016] - 3

### investigations ofeach ofthe

### applicantsto 

### determinewhether theymetthe Gaming

### Act's eligibility and 

### financial requirements forthe issuance of a

### Category 2 

### license. After this 

### process was complete, in 2013, the Board 

### conducted a series of 

### public suitability hearings to

### consider the merits ofeach 

### application. Beforethese hearings commenced, SugarHouse filed a petitionwiththe Boardto intervene, advancing three 

### contentions relevanttothis appeal as towhy, in itsview, the license should not be 

### granted: (1) the granting of a

### second slot machine licensewould result in the alleged saturation of the 

### Philadelphia area gaming market and cause 

### SugarHouse economic harm through the dilution of its 

### gaming revenues; (2) 

### Stadium
was precluded from being 

### awarded a

### Category2 

### license by

### Section 1304oftheGaming Act because one of its 

### affiliates already was the owner or 

### operator of a 

### facility which had a 

### Category 1 

### slot machine license; and (3) 

### that "affiliates, owners, or 

### financial backers" of 

### Stadium, Market East, and 

### other applicants owned or had a 

### financial interest in 

### other existing licensed gaming facilities potentially greater than the 

### 33.3% share permitted by Section 1330 of the Gaming Act, which would preclude those applicants from receiving a 

### Category 2 license. 

### SugarHouse Petition to Intervene, 12/16/13, at 11. The Board granted 

### SugarHouse limited intervention, restricted to the issue of marketsaturation, but

### denied its 

### intervention asto the remaining issues. After reviewing all of the 

### evidencewhich had been 

### submitted to it, on 

### November 18, 2014, the Board, at an open public hearing, voted 7-0 to award the 

### Category 2 

### license to 

### Stadium, and it issued an 

### orderto 

### thateffect on thesame day. SeeGaming Board Order, 11/18/14. This order incorporated, by 

### reference, the reasons for the Board's approvalwhich itset

### forth in a

### separateAdjudication, also issued on 

### November 18, 2014. Id. In the 

### Adjudication, the Board 

### explained that it 

### selected Stadium based

on a 

### variety of 

### factors such as its 

### proposed 

### facility's accessibility, proximity to 

### other

[J-133-2016and

### J-134-2016] - 4

### casinos, impact on the 

### surrounding community, traffic flow, past positive history of its 

### management group in the gaming and 

### entertainment industry, and the 

### ability of 

### Stadium'sownershipgroup to 

### self-financethe

### construction of thefacility. Both 

### SugarHouse and Market East filed petitions for review with our Court from the Board's November 18, 2014 order, which we 

### consolidated for disposition.6 In its petition, 

### SugarHouse raised 

### four claims: (1) the Board erred as a matter of law oracted 

### arbitrarily and 

### capriciously in limiting 

### SugarHouse's intervention in Board 

### proceedingsto the

### question of market saturation; (2)the awardof the 

### licenseto Stadium would result in undue 

### economic concentration in 

### violation of Section 1102(5)7 of the Gaming Act and the 

### Board's regulations; (3) the award of the license to Stadium would 

### violate the 

### provisions of Section 1304 of the 

### Gaming Act barring dual 

### ownership and control of a 

### Category 1 and a 

### Category 2 

### licensed facility; and (4) renewing its 

### argument that the award of the license to Stadium would violate Section 1330 of the 

### GamingAct, because it

### would result in its 

### affiliates,who already possessed a slot machine license, owning or 

### controlling morethan 

### 33.3%of a

### second casino. We rejected SugarHouse's challenge tothe Board's limitation of its intervention.8 We ruledthat, because 

### SugarHouse had a 

### "substantial, direct, and immediate" interest

6 Our Court has 

### exclusive appellate jurisdiction over appeals from "any final order, 

### determination or 

### decision of the board involving the approval, issuance, denial or 

### conditioning of a slot machine license or the award, denial or 

### conditioning of a 

### table game operation certificate." 4 Pa.C.S. § 1204. 4 Pa.C.S. § 1102(5). 8 Ourstandard of review in 

### these mattersrequiresourCourtto affirm all final orders, 

### determinations or 

### decisions of the board involving the approval, issuance, denial or 

### conditioning of aslot machine license ortheaward, denial or 

### conditioning of a table game operation certificate unless it shall find

### thatthe board 

### committedan 

### error of law or

### thatthe order, 

### determination or 

### decision of the board was 

### arbitrary and 

### therewas a

### capriciousdisregard oftheevidence. 4 Pa.C.S. § 1204.



### [J-133-2016and

### J-134-2016] - 5inthe 

### outcome ofthe licensing 

### proceedings greaterthan 

### that held bythe 

### general public at large

# - namely, suffering possible 

### financialdetriment fromthe 

### impropergranting of a 

### license to a 

### competitor if the Board did not

### adequately weigh the 

### statutory requirement that it 

### considerthe

### prospect of market saturation in its award ofthe second license, and 

### because none of the 

### other parties were pursuing this issue before the Board

# - SugarHouse was properly granted intervention in the licensing 

### proceedings by the Board under its 

### regulations governing intervention. SeeSugarHouse I, 136A.3d at470;


### see also 58 Pa. Code § 

### 441a.7(z)(2) 

### ("A person may file a petition to 

### intervene [in a licensing hearing for a slot machine license] if the person has an 

### interest in the proceeding which is 

### substantial, direct and 

### immediate and if the interest is not 

### adequately represented in a licensing hearing."). However, 

### SugarHouse did not 

### present anyargument in its brief toour Courton 

### that issue. 

### SugarHouse I, 136 A.3d at470. By 

### contrast, regarding SugarHouse's other issues, 

### becausethey were raisedand pursued by the 

### other parties before the Board, and since the Board also received 

### evidence on these 

### questions from its own Bureau of 

### Investigations and Office of 

### Enforcement Counsel, wefound no legal error, nor any 

### arbitraryor

### capricious disregard of 

### competentevidence bythe Board, in denying 

### SugarHouse's intervention as to 

### these matters. We further noted that, in any event, 

### Appellant Market East had raised the
same 

### challenges in its petition for review and 

### continued to argue them in its 

### appellate brief, 

### rendering SugarHouse's arguments duplicative; hence, for all of 

### these reasons, ourCourt did not

### addresstheother issues raised by

### SugarHouse. Addressing the issues Market East raised on 

### appeal, we 

### first rejected its claim 

### thatthe Boardfailed to 

### consider and 

### explicitlyanalyzecertain 

### evidentiary factors,which it averred established that the award of the license to 

### Stadium would result in undue



### [J-133-2016and

### J-134-2016] - 6

### concentration of 

### economicopportunities in 

### violation ofSection 1102(5). We, therefore, affirmed the Board's ruling onthis issue. Id.at

### 474-75. Our Court next 

### considered the question of

### whether Stadiumwas eligible to

### apply for a 

### Category 2 

### license under Section 1304 of the Gaming Act which provides, in 

### relevant part: "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 eligible to apply 

### for a 

### Category 1 license." 4 Pa.C.S. § 1304(a)(1). Market East 

### contended that Stadium was disqualified under this section because its affiliate, Manoukian, was, atthetime of 

### Stadium's application, "eligibleto 

### applyfor a

### Category 1 license," due to the fact he had an 85% 

### ownership interest in an entity known as 

### Greenwood Racing 

### ("Greenwood"), which is the parent 

### company of 

### Category 1 

### license holder ParxCasino. The crux of Market East's 

### argument inthis regard was that, 

### because a 

### Category

1 

### license holder had to 

### reapplyfortherenewal of 

### that license priorto its

### expiration, both it, and any of its 

### affiliates, must be 

### deemed eligible to apply forthe license as if 

### they
were applying for it the very first time. 

### We rejected this claim based on the Gaming 

### Act's differing requirements for the issuance of a slot license and the renewal of said license, as well as the 

### Act's definition of 

### applicant. 

### SugarHouse I, 136 A.3d at 478 (citing 4 Pa.C.S. §§ 1103, 1325(a), 1326(a)). However, we noted 

### thatthese statutory provisionsdid not 

### establish theeligibility requirements to applyfor a

### Category 1 license; rather,those 

### requirementsare setforth in Section 1302oftheGaming Act.9 Noting 

### that Section 1302, by its 

### terms, does not 

### disqualify a

### Category 1 

### licensee
or any of its 

### affiliates from applying for another Category 1 license for a 

### separate racetrackfacility, we 

### recognizedthat Manoukian, even though an 

### affiliateof a 

### Category

9 4 Pa.C.S. § 1302, setforth infull infra.



### [J-133-2016and

### J-134-2016] - 71 

### license holder ParxCasino, was, nevertheless, potentially eligible to applyfor another 

### Category 1 

### license foranother racetrack facility in the 

### Commonwealth. Due to the fact 

### that such 

### eligibilitywouldarguablytriggerdisqualificationforthe issuance ofa 

### Category 2 license underthe prohibitory language of Section 1304(a)(1), and 

### because weagreed with 

### Market East's contention thatthe Board did not

### sufficiently explain its

### consideration of this 

### statutory provision in its 

### Adjudication, we 

### remanded the matter to the Board to 

### address, in the first instance, 

### whether Manoukian was, in fact, 

### eligible to 

### apply for a 

### Category 1 license atthetime of 

### Stadium'sapplication. SugarHouse I, 136A.3d at478. Our 

### Court next 

### examined Market East'scontention thatStadium's proposed post

### licensure ownership 

### structurel°violated Section 1330 ofthe Gaming Act,which states: No slot 

### machine licensee, its 

### affiliate, intermediary, subsidiary or holding 

### company may 

### possess an 

### ownership or

### financial interestthat is 

### greaterthan 

### 33.3%of 

### another slot 

### machine licensee or person eligible to

### applyfor a

### Category 1 license, its 

### affiliate, intermediary, subsidiary or holding company. * * * Nosuch slot machine license

### applicant shall be issueda slot machine license until the 

### applicant has 

### completely divested its 

### ownership or

### financial interest that is in 

### excess of 

### 33.3% in 

### another slot machine licensee or person eligible to 

### apply for a 

### Category 1 license, its 

### affiliate, intermediary, subsidiary or holdingcompany.

1° Under this structure, described in 

### Sugarhouse I, 

### Stadium will be owned in equal shares by two limited 

### liability corporations: Stadium Casino Investors and Stadium Casino Baltimore Investors. 66% of

### Stadium Casino Investorswill, inturn, be owned by 

### Greenwood and 34% by an 

### entity known asthe Sterling Investors Trust, an 

### irrevocable trust created by 

### Manoukian. Sterling Fiduciary Services, Inc. ("Sterling Fiduciary"), a limited liability corporation, is the 

### trustee of Sterling Investors Trust. Post-licensure, Manoukian will own 28% of the shares of Sterling Fiduciary, with the other 72% of the 

### shares held by

### other members of his family. 

### Sugarhouse I, 136 A.3d at

### 464-65. Three of 

### Manoukian's family members, their spouses, and 

### their children are the 

### designated beneficiaries of the Trust; however, Manoukian is not. 

### Supplemental Adjudication, 6/23/16, at 10-11.


### [J-133-2016and

### J-134-2016] - 84 Pa.C.S. § 1330. Market East argued that the Board 

### engaged in no 

### meaningful analysis in its 

### Adjudication of 

### whether Manoukian's interests in 

### Stadium, through his 

### interests in Sterling Fiduciary, violated the 

### requirements of Section 1330. Market East 

### took the position that, 

### because Manoukian'sfamily members held all of the

### ownership shares in Sterling Fiduciary not owned by 

### Manoukian, Manoukian's business ally occupied all of the 

### corporate officerpositions ofSterling Fiduciary,and 

### because Manoukian pledged an 

### "equity infusion" of $34 

### millionl 1 to Sterling Investors Trust, which would be used as capital by 

### Stadium, this raised the question of 

### whether the trust was being used by Manoukian to evadethe 

### requirements ofSection 1330 by making it

### appearthat his total 

### interest in Stadium through Sterling Fiduciary and 

### Greenwood was below the 33.3% limit imposed by 

### that Section. Because Section 1330 

### expressly permits a 

### license applicant to 

### divest any ownership or

### financial interest priorto the 

### issuance of a license in 

### order to 

### comply with this 

### statute, we agreed with the Board 

### that the 

### relevant ownership structure of a 

### Category 2 

### license applicant was that which the applicant would have 

### post-licensure. Although our Court found no 

### fault with the Board's calculation of 

### Manoukian's ultimate ownership interests in 

### Stadium through Sterling Financial under Section 1330,
we noted 

### that the language of this section 

### additionally required the Board to 

### examine the 

### percentage of "the financial

### interestthat an existing license holderwill 

### possess in a licensee after the license is issued." 

### SugarHouse I, 136 A.3d at 481 

### (emphasis original and 

### footnote omitted). Market East 

### argued to our 

### Court thatthe Board's 

### Adjudication

11 The Board 

### describes this 

### equity infusion as being 

### "provided from 

### Watche Manoukian's personal funds," but, as 

### discussed infra, the Board does not 

### specify how this money 

### would be 

### transferred from Manoukian to the trust, e.g., by loan or gift. 

### Supplemental Adjudication, 6/23/16, at 10.


### [J-133-2016and

### J-134-2016] - 9did not 

### sufficiently support its 

### apparentconclusion that Manoukian's financial interest in Stadium was also within the 33.3% limit of 

### Section 1330,12 and Market East 

### further highlighted in its 

### confidential brief to our Court its 

### concerns over the equity infusion pledged by Manoukian to Sterling Investors Trust, which will, in turn, be used by the trust to 

### purchase an 

### interest in 

### Stadium. Because the 

### Board's 

### Adjudication did not 

### address these matters, we remanded to the Board to 

### explicate whether Manoukian, post-licensure, would possess a 

### financial interest in Stadium which exceeds that 

### section's 33.3% limit on

### financial interests. SugarHouse I, 136 A.3d at 481. Duetothe fact that the definition of 

### financial interest as used in Section 1330 was integral to the Board's 

### consideration of this issue, we 

### additionally directed the Board, as the 

### administrative agency charged with 

### interpreting the Gaming Act, to 

### articulate how it 

### defined thatterm. Id. at481 n.30. We, thus, 

### affirmed in part, and 

### vacated in part, the 

### Board's order of November 18, 2014, and issued both a 

### public remand order and a 

### separate sealedversion of that order to 

### protect certain confidential personal information provided to the Boardwhich is not a matter of public record. Both 

### versions of the remand orderdirected the Boardto 

### conduct "furtherproceedings"to 

### addressthetwo matters 

### discussed above.13

12 See Market East Brief (Public Version) in 

### SugarHouse I at 17 ("[T]he Board offered no 

### substantive support for its 

### apparent conclusion that Manoukian's ownership 

### or financial interest in Stadium passes muster under section 1330, instead mostly relegatingthe issueto

### footnotestothe

### Adjudication." (emphasisadded)). 13 The public orderstated infull: 

### AND NOW, this 29th 

### day of March, 2016, for the 

### reasons expressed in the

### accompanying Opinion,the

### Order ofthe 

### Gaming Control Board 

### Court is hereby 

### AFFIRMED in part, 

### VACATED in part, andthe matter is 

### REMANDEDfor

### further proceedings on the following issues. First, 

### regarding the 

### question of the 

### eligibilityof Stadium Casino, LLC 

### ("Stadium") to apply for a 

### Category 2 slot machine license under 4 Pa.C.S. § 1304(a), the Board is

### directed to 

### considerwhether Watche Manoukian,as an 

### affiliate of

### Stadium,waseligible 

### (continued...) [J-133-2016and

### J-134-2016] - 10On 

### June 8, 2016, the 

### certified record in this case was remanded to the Board. 

### Thereafter, on June 23, 2016, the Board issued a 

### Supplemental Adjudication in which it 

### determined "that 

### adequate factual basis exists within the record of the 

### proceedings before it, as well as within official records of the Board, to 

### address [the 

### remanded] issues. As such, an 

### additional hearing forthe 

### purpose oftaking 

### further evidence is not necessary." 

### Supplemental Adjudication, 6/23/16, at 4-5. Based on the 

### extensive evidentiary record, which had been 

### previously developed during the licensing 

### proceedings, its prior 2014 

### Adjudication, and its taking of 

### judicial notice of matters published in the 

### Pennsylvania Bulletin,14 the Board first found that neither Manoukian,
nor any other affiliate, intermediary, or holding 

### company of 

### Stadium was otherwise eligible to 

### applyfor a 

### Category 1 slot machine license, and, 

### consequently, that Section 1304 

### would not be 

### violated by the issuance of a 

### Category 2 license to 

### Stadium. Second, the Board elucidated its

### definition of

### what it

### consideredto be a

### financial interest under Section 1330, and 

### found that, 

### under that definition, Manoukian will not have a

(...

### continued)to 

### apply for a 

### Category 1 slot machine license at the time Stadium applied 

### for the 

### Category 2 slot machine license which is the 

### subject of this appeal. Second, the Board is 

### directed to 

### consider whether the 

### financial interest, if any, Manoukian may have in 

### Stadium due to certain 

### financial transactions and 

### commitments of 

### financial support he made during the 

### application process violates the 

### prohibitions in 4 Pa.C.S. § 1330. 

### Specifically, the Board 

### should consider 

### whether Manoukian, by

### virtue of his pledged 

### commitmentto 

### {redacted} or through any other financial transaction, would possess, post-licensure, a 

### financial interest in Stadium in 

### excess ofthe

### 33.3% threshold established by Section 1330. 

### SugarHouse I, 136A.3d 457 (Pa.2016) (publicorder). 14 See 

### Riverwalk Casino, 

### LP v. 

### Pennsylvania Gaming Control Board, 926 A.2d 926, 935 (Pa. 2007) (observing 

### that "the Gaming Board 

### serves as a

### quasi-judicial body with fact-finding and 

### deliberative responsibilities.").

[J-133-2016and

### J-134-2016] - 11

### financial interest in 

### Stadium, post-licensure, greater than 33.3%.15 The Board, thus 

### concluded, based on its prior 

### Adjudication, that its 

### November 18, 2014 order awarding the 

### Category 2 

### license to 

### Stadium was "supported bythe 

### extensive evidentiary record and 

### consistentwith the 

### relevant provisions ofthe GamingAct." Id. at23. The same daythe Board issued its 

### SupplementalAdjudication, SugarHousefiled

a petition to 

### intervenewith the Board, 

### requesting that it be 

### granted "full party status as
an 

### Intervener in the 

### proceedings on remand." SugarHouse Petition to Intervene, 

### 6/23/16, at 1. 

### SugarHouse sought to "raise and 

### present

. . . matters" pertaining to the 

### questionsthatwe 

### directedthe Boardto

### answer on remand. Id. at4. As perthe 

### Board's rules of

### procedure, Sugarhouse's petition to 

### intervenewas referredto the Board's Office of Hearings and 

### Appeals ("OHA"), to 

### which, as 

### explained more 

### fully herein, the Board has 

### assigned responsibility forthe 

### disposition of "all matters, except for hearings under § 

### 441a.7 (relating to licensing hearings for slot machine licenses)." 58 Pa. Code § 

### 491a.8. On 

### June 29, 2016, a Board hearing 

### officer returned the petition by mail to 

### counsel of record for

### SugarHouse,along with the

### accompanying explanatory letter: We are returning the 

### Petition and marking the 

### proceeding where itwas docketed (OHA Docket No. 

### 4745-2016) closed. Upon review of the Petition, itwas

### determined that the relief sought ("the right to 

### intervene and 

### participate in the 

### Proceedings on Remand") could not be 

### granted because, in fact, the Board held no

### additional proceedings on remand as it relied uponthe existing 

### evidence ofrecord. Letter from Board Hearing 

### Officer Kenneth 

### Zielonis, 6/29/16 (emphasis original). Thereafter, on 

### July 22, 2016, 

### SugarHouse filed a petition for review in our Court,

15 

### The specific rationale of the Board in arriving at 

### these conclusions will be 

### further elaborated, infra, in our

### discussion of the issues we are

### addressing inthisappeal.



### [J-133-2016and

### J-134-2016] - 12

### docketed at 124 EM 2016, and Market East 

### subsequently filed a petition 

### for review, 

### docketed at 125 EM2016, on

### July 27, 2016.
In 

### responseto 

### SugarHouse's petition, the Boardfiled an 

### application for reliefwith
our Court, 

### asserting that 

### SugarHouse's petition should be 

### "quashed and 

### dismissed, inasmuch as our Court, in 

### SugarHouse I, 

### previously upheld the 

### Board's limitation of 

### SugarHouse's intervention in the licensing process to the 

### subject of market saturation. Board Application for Relief, 

### 8/12/16, at 1. 

### After SugarHouse filed an 

### answer to the 

### application, our 

### Court entered an 

### order deferring action on the application and 

### directing the parties to 

### address this question in 

### their respective briefs. See SugarHouse HSP Gaming v. Pa. 

### Gaming Control Board, 124 EM 2016 (Pa. filedSept, 13, 2016) (order). II. 

### Analysis SugarHouse and Market East raisethe

### following issues in 

### theirbriefs: 

### Appeal

### ofSugarHouse

### at 124

### EM2016,J-133-2016:16 1. Did the Board err as a 

### matter of law, or at the very least act 

### arbitrarily and with a 

### capricious disregard of the evidence, when it failed to even consider, much less grant, 

### SugarHouse's pending Petition to 

### Intervene on Remand before issuingthe 

### Supplemental Adjudication?
2. Did the Board err as a 

### matter of law, or at the very least act 

### arbitrarily and with a 

### capricious disregard of the evidence, when it

### denied SugarHouse due process byfailing to give it notice and an 

### opportunity to be heard before issuing the

### Supplemental Adjudication?
3 Did the Board err as a matter of law, or at the

### very least act 

### arbitrarily and with a 

### capricious disregard of the evidence, in issuing its 

### Supplemental Adjudication when it failed to 

### comply with this 

### Court's March 29, 

### 2016 Remand Order?

16

### These issues have been reordered for ease of

### consideration.

[J-133-2016and

### J-134-2016] - 134. Did the Board err as a 

### matter of law, or at the very least act 

### arbitrarily and with a 

### capricious disregard of the evidence, when it issued its 

### Supplemental Adjudication in 

### violation ofthe 

### Pennsylvania SunshineAct? 

### SugarHouse Brief 

### (J-133-2016) (PublicVersion) at 5-6. 

### Appeal

### ofMarketEast 125 

### EM2016,

### J-134-2016:

1. Did the Board 

### commit an 

### error of law in 

### confirming its award of the License to 

### Stadium without actually conducting further proceedings as 

### specifically directed by this Court's March 29, 2016 Order vacating in part the Board's original 

### order grantingthe Licenseto

### Stadium?
2. Did the Board 

### commit an 

### error of law in 

### confirming its award of the License to 

### Stadium because granting the license to 

### Stadiumviolates 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 licensee or person eligible to 

### apply for a 

### Category 1 license, its 

### affiliate, intermediary, subsidiary, or holding company, and by 

### adopting an 

### impermissibly narrow definition of 

### what constitutes a 

### "financial interest" under this section of the Gaming Actwith respect to 

### Watche Manoukian?
3. Did the Board 

### commit an 

### error of law in 

### confirming its award of the 

### License to Stadium even though granting the License to 

### Stadium violates Section 1304(a)(1) of the Gaming Act, 4 Pa.C.S. § 1304(a)(1), which makes Stadium ineligible for a 

### Category 2 

### license because an entity is only eligible to applyfor a 

### Category 2 

### license if the applicant, its affiliate, intermediary, 

### subsidiary or holding 

### company is not 

### otherwise eligible toapplyfora

### Category 1 license? Market East Brief 

### (J-134-2016) (PublicVersion) at9-10.17

17 

### Stadium, as a partyto the licensing 

### proceedings below, has 

### intervened inthis appeal as a 

### matter of right and has filed a brief in 

### support of the Board's 

### Supplemental Adjudication. See Pa.R.A.P. 1531 ("A party to a 

### proceeding before a 

### government unit 

### that resulted in a

### quasijudicial order may 

### interveneas ofright in a

### proceeding underthis chapter relating to such 

### order by filing a notice of 

### intervention (with proof of service on 

### (continued...) [J-133-2016and

### J-134-2016] - 14A. 

### Appeal

### ofSugarHouse

### at 124

### EM2016,

### J-133-2016 We first 

### considerthe 

### contentions of the Board 

### that SugarHouse's appeal should be

### quashedor

### dismissed,whichwedirectedtheparties to brief.

1. 

### Waiver. The Board first argues 

### that SugarHouse has

### waived any right to 

### appeal due to the

### fact that itfailed to

### exhaust its 

### administrative remedies beforethe Board prior tothe filing its petition for review. The Board contends that, under the 

### Administrative Code, which 

### supplements the 

### Board's regulations, 

### whenever a 

### subordinate to the 

### agency head takes an action 

### pursuant to his or her 

### delegated authority, the 

### affected party has 10 

### days to file a petition seeking review from the 

### agency head. 

### Because the OHA hearing officer returned thepetition to 

### interveneto 

### SugarHouse, and as 

### SugarHousedid not 

### seek further review of this action with the Board, it has 

### waived all of its 

### appellate arguments inthe

### current appeal. 

### SugarHouse responds by

### averring thatthe Board's argument "misses the mark." 

### SugarHouse Reply Brief (J-133-2016) (Public Version) at 24. In 

### SugarHouse's view, 

### becausethe HearingOfficer did not

### address its 

### intervention petition, but

### simply rejected and returned the petition, it was performing a mere 

### "ministerial action" at the Board's direction in the 

### capacity of a 

### surrogate; hence, it posits that the act of the Hearing 

### Officer is 

### attributable to the Board and, thus, is required to be 

### appealed directly to this Court. However, 

### according to 

### SugarHouse, ifthe Hearing 

### Officerwasacting of hisown 

### initiative and 

### without authorization from the Board, then his 

### purported rejection of the appeal is a nullity, andthe 

### Board'sdecision is 

### immediately appealable.

(...

### continued) all parties to the matter) with the 

### prothonotaryof the

### appellate courtwithin 30 days after notice ofthefiling ofthe petitionfor review.").



### [J-133-2016and

### J-134-2016] - 15A claim that 

### appellate issues are 

### waived for failing to raise them in the first instance with the Board involves a 

### question of law, and, thus, ourstandard of review is de novo. 

### Pocono 

### Manor Investors, 

### LP v. 

### Pennsylvania Gaming Control Board, 927 A.2d 209, 216 (Pa. 2007). 

### The Board's argument implicates the 

### concept of 

### "Dilliplaine waiver," a

### doctrine arising from our seminal case of 

### Dilliplaine Valley v. 

### Lehigh County Trust, 322 A.2d 114 (Pa. 1974), 

### wherein our 

### Court abrogated the prior and longstanding 

### jurisprudential rule 

### that an 

### appellate court could 

### consider claims of trial 

### court
errorwhich are 

### "basicand 

### fundamental," even though no

### timelyobjection to thealleged
error was made to thetrial court. Id. at 216-17. Informing ourdecision to 

### abrogate this rule,we identified two principal benefits of requiring 

### objections to be 

### preservedthrough initial 

### presentation to a

### lowertribunal: (1) a

### timelyobjection made tothetrial court gives 

### thatcourtthe

### opportunity to

### take immediate corrective action, which promotes efficiency in the

### judicial process by 

### allowing litigants to avoid incurring 

### unnecessary expense and 

### delay by being 

### forced to resort to the 

### appellate process; and (2) it 

### offers a 

### predictable and neutral 

### standardforappellate reviewof

### claims oftrial 

### courterrorwhich is 

### applicable to all cases, unlike the 

### former standard which was 

### inconsistently applied by 

### appellate courts on acase by case basis. Id. at 117. 

### Thereafter, our Court applied the 

### rationale of 

### Dilliplaine to 

### administrative proceedingsand ruled 

### that aclaim could be

### waived for purposes of 

### appellate review for failure to 

### present it to the 

### administrative tribunal which rendered a final decision in the matter: [T]he 

### administrative law 

### tribunal must be given the 

### opportunity to 

### correct its 

### errors as 

### early as 

### possible; diligent preparation and 

### effective advocacy before the 

### tribunal must be 

### encouraged by requiring the parties to 

### develop complete recordsand 

### advance all legal 

### theories; andthe 

### finality ofthe lower 

### tribunals' determinations must not be 

### eroded by 

### treating each 

### determination as part of a 

### sequence of 

### piecemealadjudications.

[J-133-2016 and

### J-134-2016] - 16Wing v. 

### Commonwealth Unemployment Compensation Board

### of Review, 436 A.2d 179, 181 (Pa. 1981). 

### These precepts have been 

### codified in Rule 1551 of the 

### Pennsylvania Rules of 

### Appellate Procedure governing petitions for review from 

### administrative tribunals,which provides, in 

### relevant part: (a) 

### Appellate

### jurisdiction petitionsfor review. Review of 

### quasijudicial orders shall be 

### conducted by the 

### court on the record made before the 

### government unit. No 

### question shall be heard or 

### considered by the court which was not raised beforethe 

### government unitexcept: (1) 

### Questions involvingthe

### validity ofastatute. (2) 

### Questions involving the 

### jurisdiction of the 

### government unit

### overthe subject matterofthe

### adjudication. (3) 

### Questions which the court is 

### satisfied that the petitioner could not bythe 

### exercise ofdue 

### diligence have raised before the

### government unit

. . . . Pa.R.A.P. 1551(a). 

### Subsequently, however, our Court specified thatwaiver of a 

### particular issue for failure to raise it before an 

### administrative tribunal is not 

### required by 

### Dilliplaine itself; rather, 

### Dilliplaine merely 

### permits an 

### administrative agency to 

### adopt an issue preservation 

### requirement through its own rules of 

### procedure. Goods v. 

### Pennsylvania 

### Board

### ofProbation and Parole, 912A.2d 226, 

### 235-36 (Pa. 2006). As a result, only if a 

### statute or an 

### administrative tribunal's rules of 

### procedure afford the 

### opportunity for an issue to be 

### presented to the tribunal so that it may 

### render a 

### decision on it, and also provide notice

### that an issuewill be 

### waived forfailureto 

### properly raise and 

### preserve it in

a 

### manner specified by 

### those rules, will 

### waiver under Dilliplaine be 

### appropriate. Id. at 236; 

### Pocono Manor, 927A.2d at240. 

### Consistent with 

### these principles, our Court has 

### previously declined to find 

### appellate waiver of issues for failure to raise them 

### first with the Board, 

### whenever the 

### Board's rules of procedure did not 

### provide a mechanism 

### for those issues to be



### [J-133-2016and

### J-134-2016] - 17

### presented to it so 

### that the Board could rule on the issues in the first instance, or 

### assurances thatthe Boardwould 

### considerthe issue if a party 

### undertookcertain steps to 

### present claims of 

### error to the Board. See 

### Station Square Gaming v. 

### Pennsylvania Gaming ControlBoard, 927 A.2d 232 (Pa. 2007); Pocono Manor.
In the case sub 

### judice, the Board's 

### validly promulgated and 

### adopted rules of procedure provided a mechanism by which 

### SugarHouse could have raised with the Board all issues relating to the alleged 

### impropriety of the Hearing 

### Officer's denial of its petition to intervene.18 

### Specifically, the Board has 

### adopted a regulation specifying that "[u]nless the Board hears the matter directly, all matters, except for hearings under § 

### 441a.7 (relating to licensing hearings for slot machine licenses), will be 

### assigned to the OHA." 58 Pa. Code § 

### 491a.8; 58 Pa. Code § 

### 491a.2. (definingOHA as "[a] 

### division of the Board charged with 

### administrating and 

### conducting hearings 

### orothermatters as the 

### Board may direct." 

### (emphasis added)). In this case, the Board 

### conducted no new licensing hearing in this matter on remand; rather, as 

### indicated above, the Board 

### prepared a 

### Supplemental Adjudication, which was an 

### explanatory opinion setting forth the Board's

### findings of

### factand its 

### rationale for portions of its 

### November 18, 2014order. Consequently, under 58 Pa. Code § 491a.8, 

### SugarHouse's petition to 

### intervene in the remand proceedings was properly referredto OHAfor initial consideration.19

18 Inthis respect, we 

### construethe hearing 

### officer's letterto 

### SugarHouse to 

### constitute a denial of its petition to 

### intervene. See Hearing Officer Letter, 

### 6/29/16 (Appendix B to 

### SugarHouse Brief 

### (J-133-2016) (Public Version)) ("Upon review of the Petition, it 

### was determined that the relief sought (`the right to 

### intervene and 

### participate in the 

### Proceedings on 

### Remand') could not be 

### granted because, in fact, the Board held no 

### additional proceedings on remand as it relied upon the existing evidence of record

. ."). 19 

### SugarHouse contends that its petition to 

### intervene was a petition "to 

### intervene in a licensing proceeding" governed by 58 Pa. Code § 

### 441a.7(z)(2). SugarHouse Reply Brief 

### (J-133-2016) (PublicVersion) at 24 n.12. However, that regulation is 

### inapplicable since, by its plain terms, it

### governs onlypetitions to 

### intervene in 

### licensing hearings, and, as 

### indicated, the Board did not 

### conduct a licensing hearing in this matter on remand. 

### (continued...) [J-133-2016and

### J-134-2016] - 18Section 35.20 of the 

### Administrative Code, which has not been 

### superseded by any Board regulation, and is, thus, 

### applicable to 

### proceedings before the Board, 

### delineates a 

### specific course of action which may betaken after the adverse action of a hearing officer. See 1 Pa. Code § 35.20 (any action "taken by a 

### subordinate officer under 

### authoritydelegated bythe 

### agency head 

### maybe 

### appealed to the 

### agency head by filing a petition within 10 days after service of notice of the

### action." (emphasis added)). The 

### Administrative Code 

### further defines "agency head" as "[t]he secretary of a 

### department, a 

### quorum of an 

### authority or 

### departmental administrative board or 

### commission or 

### independentboardor 

### commission, or 

### anotherofficer or

### group of 

### officers whose action with 

### respect to a 

### matter pending before theagency exhausts 

### opportunity for 

### administrative review within the 

### agency and 

### constitutes the action of the 

### administrative agency for the purposes of Pa. 

### Constitution. art. V, § 9." 1 Pa. Code § 31.3 

### (emphasis added). Thus, these 

### regulatory provisions afforded a means for 

### SugarHouseto 

### requestthatthe Board review thedecision of its hearingofficer. However, critically, 

### there is nothing in the Board's 

### regulations or in the 

### Administrative Code which provides notice to a litigant pursuing matters before the Boardthat it 

### mustfollowthese procedural steps and 

### present all alleged claims of 

### error by a hearing 

### officer to the Board in 

### order to 

### preserve such 

### claims for appeal. As 

### discussed above, our 

### Court indicated in 

### Goodsthat notice of such 

### waiver of 

### appellate issues for failing to 

### follow specified agency procedures governing presentation of the issue to the 

### agency for consideration is a 

### fundamental requirement which must be included in an 

### agency's regulatory framework in 

### order for 

### waiver to be 

### appropriate
(...

### continued) See58 Pa. Code § 

### 441a.7(z) ("This subsection pertains 

### exclusively to 

### intervention in a licensing hearing for a slot machine license under this section and is not 

### applicable to 

### other hearings beforethe Board.").



### [J-133-2016and

### J-134-2016] - 19under Dilliplaine. Thus, as the Board's 

### regulations did not 

### clearly inform a litigant in 

### SugarHouse's position that

### failure to appeal an 

### adversedecision of a hearing officer to the Boardwould result in 

### waiver of its 

### appellate challenges to that decision, we will not find its

### claimswaived underthese circumstances.2° 2. 

### WhetherSugarHouse may

### intervene in

### thisappeal. The Board next argues 

### that SugarHouse was properly denied the right to 

### intervene in the

### proceedings on remand, and

### should not be 

### permitted to 

### intervene in this appeal, due to the 

### fact that our Court previously upheld the 

### Board's decision to limit 

### SugarHouse's interventionto the 

### question of 

### marketsaturation, and 

### becausethat issue
was 

### finallydisposed of in 

### SugarHouse I. 

### The Board 

### contendsthatthe remand of acase does not startthecase anew and give litigants the 

### opportunityto 

### relitigate issueswhich have been 

### previously decided by the 

### appellate court. 

### Consequently, in the Board's view, 

### because our Court affirmed the decision of the Board denying 

### SugarHouse intervention on the issues which we 

### remanded to the Board, 

### SugarHouse had no right to 

### intervene in the 

### proceedings on remand or to 

### appeal any portion of the 

### Board's decision. SugarHouse again claims that it

### was permitted to 

### seek intervention under58 Pa. Code § 

### 441a.7(z)(2). SugarHouse does not 

### contest that this Court in 

### SugarHouse I upheld the Board's 

### determinationthat it

### was not entitled to 

### interveneon any issueother than market saturation; however, it 

### contends thatdecision was not

### determinative of its right to 

### intervene in the 

### proceedings on remand. 

### SugarHouse argues that the prior denial of its 

### intervention was based on thefact

### thatother parties and 

### the Board's Office of 

### Enforcement Counsel were representing its 

### interests in 

### proceedings before the

20 

### We do not mean to 

### suggest thatthe Board could not

### validlyadopt such a 

### regulation, merelythat it has notdone so at 

### present.

[J-133-2016 and

### J-134-2016] - 20Board. Presently, it 

### maintains that no 

### other party was representing its 

### interests on remand since Market East did not 

### participate in 

### those proceedings, and 

### there is no indication that the Office of 

### Enforcement Counsel participated in 

### those proceedings. According to 

### SugarHouse, because it 

### continues to have an 

### interest in the 

### outcome of the 

### proceedings greater than 

### that of the general public, due to its 

### status as the 

### other Category 2 

### license holder in the City of 

### Philadelphia, and 

### because therewas no 

### other party 

### adequately representing its 

### interests, or which would have 

### presented the same 

### arguments it 

### would have made, the Board should have permitted it to 

### intervene on remand, and, for the 

### same reasons, it 

### presentlyshould be 

### permitted to 

### intervene in this appeal. The 

### question of 

### whether a person or 

### entity which is not a party to 

### proceedings below may 

### intervene in an 

### appeal toour Court is a

### question of law,whichwe review de
novo. 

### Society Hill Civic

### Association v. 

### Pennsylvania Gaming ControlBoard, 928 A.2d 175, 178 (Pa. 2007). First, we 

### reject SugarHouse's argument that 58 Pa. Code § 

### 441a.7(z)(2) governs the question of 

### whether the Board should have permitted it to 

### intervene on remand. Aswe have 

### already discussed, the 

### proceedings on remand were 

### not a licensing hearing. See supra note 19. 

### The licensing hearing in this matter was held 

### November 18, 2014, atwhich the Board voted 7-0 to award the

### Category 2 

### license to 

### Stadium. The Board 

### conducted no new licensing hearing on 

### remand. Moreover, and 

### importantly, when SugarHouse filed its 

### initialpetition to 

### intervene prior to the Board's holding of 

### suitability hearings for the various applicants, it 

### specifically claimed that Stadium's affiliates such as 

### Manoukian were ineligible to receive the 

### Category 2 

### license under Sections 1304 and Section 1330 of the 

### Gaming Act. 

### The Board 

### denied it 

### intervention as to 

### those claims. Because 

### SugarHouse was not a party to the 

### proceedings below, and 

### because of our 

### affirmance of the Board's



### [J-133-2016and

### J-134-2016] - 21denial of its 

### intervention, we did not 

### consider SugarHouse's arguments to our Court concerning 

### whetherthe Board's grant of a license to 

### Stadium violated Sections 1304 and 1330. 

### SugarHouse I, 136A.3d at470. Our ruling,

### therefore, finally adjudicated the 

### question of 

### SugarHouse's right to 

### intervene in this case on issues involving 

### whether Manoukian was in 

### compliancewith 

### these statutoryprovisions,and, thus, 

### established the "law of the case" with 

### respect thereto: SugarHouse has no right of 

### intervention with 

### respectto 

### these matters. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (prior legal

### conclusion ofour Court on issue 

### becomes lawofthe case).21 Inasmuch as the remand 

### proceedings before the Board were restricted to requiring the Board to 

### further explain its 

### rationale for its prior 

### determination that the award of the license to 

### Stadium comported with 

### Sections 1304 and 1330, the Board
was bound by our ruling, under the law of the case 

### doctrine, to 

### deny SugarHouse intervention on 

### these matters. Riccio v. 

### American Republic Insurance Company, 705 A.2d 422, 425 (Pa. 1997) 

### (pursuant to the law of the case doctrine, "a 

### court involved in the later phases of a litigated matter should not reopen 

### questions decided by 

### another judge ofthe same court or by a highercourt in the 

### earlier phases of the matter").22 For

21 

### We have notapplied this

### doctrine inflexibly, and sowewill notapply it "in 

### exceptional circumstances such as

### where there has been an 

### intervening change in the controlling law, a

### substantial change inthefacts or

### evidencegiving riseto the

### dispute inthe matter, or

### wherethe prior holdingwas 

### clearlyerroneous and

### wouldcreate a 

### manifest injustice if 

### followed." Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995). None of 

### these circumstances are 

### present inthe 

### instant matter. 22 

### Although our Court has 

### articulated the law of the case 

### doctrine in the context of a parallel relationship between trial courts, or the hierarchal 

### relationship between appellate and trial courts, given 

### that an 

### administrative tribunal performs similar adjudicativefunctions astrial courts, and is 

### similarly bound to 

### followthe

### directives of an 

### appellate court on remand, we 

### consider this 

### doctrine to be 

### equally applicable in 

### administrative proceedings, as is 

### alreadythe 

### practice inthe federal 

### courtsystem. See, e.g., 

### Wilder v. Apfel, 153 F.3d 799 (7th Cir. 1998) ("The law of the case doctrine, which requires 'the trial 

### court to 

### conform anyfurther proceeding on remand to the 

### principles set forth in the 

### appellate opinion unless there is a 

### compelling reason to depart,' is 

### (continued...) [J-133-2016and

### J-134-2016] - 22

### that reason, we

### dismiss SugarHouse's petitionfor reviewwith 

### respectto its

### challenge to the Board's 

### Supplemental Adjudication concerning Manoukian's compliance with 

### Sections 1304 and 1330oftheGaming Act.23 24 (...

### continued) applicable to 

### judicial review of 

### administrative decisions. It 

### requires the 

### administrative agency, on remand from a court, to 

### conform its 

### further proceedings in the case to the 

### principles set forth in the 

### judicial decision, unless there is a 

### compelling reason to 

### depart."(internal citations omitted)); 

### Grigsby v. Barnhart, 294 F.3d 1215 (10th Cir. 2002) (same). 23 

### We reject 

### SugarHouse's argument that the denial of its renewed request 

### for intervention somehow constitutes a 

### denial of its due process rights. As our 

### Court has 

### previously emphasized, "[t]he applicability of the 

### constitutional guarantee of 

### procedural due process 

### depends in the 

### first instance on the 

### presence of a 

### legitimate 'property' or `liberty' 

### interestwithin the meaningofthe Fifthor 

### FourteenthAmendment." 

### Sweeney v. Tucker, 375 A.2d 698, 712 (Pa. 1977). 

### There is 

### unquestionably no liberty interest at stake here in 

### these proceedings, and, as the Board argues, 

### SugarHouse has no 

### legitimate property interest atstake herewhich would 

### triggerthe 

### procedural protections of thedue process clause. 

### SugarHouse has been 

### awarded a

### Category 2 slot machine, and 

### these proceedings do not call into 

### question the

### viability of 

### that license. Moreover, the Gaming Act did notvest in 

### SugarHouse an 

### exclusive rightto bethe only

### Category 2 

### license holder in 

### Philadelphia. To the contrary, the Gaming Act 

### specifically contemplates the award of an 

### additional Category 2 

### license; thus, 

### SugarHouse has no 

### protected interest in being the sole 

### license holder inthe City of Philadelphia. To the extent that SugarHouse claims a right to 

### intervene at 

### present based on 

### our Court's recognition that it metthe

### firstcriteriato 

### establish its rightto 

### intervene in the 

### previous licensing proceedings under 58 Pa. Code § 

### 441a.7(z)(2), that claim is baseless. This regulation does not 

### confer on 

### SugarHouse the 

### unqualified right to intervene, but 

### ratherclearlyspecifiesthat intervention is "withinthesole 

### discretionof the Board." Id. 

### (emphasis added). The regulation also requires that SugarHouse demonstrate that its 

### interests would not be 

### "adequately represented in [the] licensing hearing." Id. The Board 

### found that SugarHouse's interests were adequately represented by the Board and other licensing 

### applicants who were parties to the proceeding, and our Court affirmed the Board's decision as a valid 

### exercise of its 

### discretion. Merely because SugarHouse received an 

### adverse decision by the Board and ourCourt on this pointdoes not mean itwasdenied due process. Likewise,there is nodenial of due process in ourruling that 

### SugarHousewas not entitled to 

### intervention inthe remand 

### proceedings underthe application ofthe lawofthe case doctrine. 

### SugarHouse had a full and 

### fair opportunity in the prior 

### proceedings to 

### present its legal 

### arguments, and any supporting factual evidence, to the Board to 

### demonstrate that it was entitled to 

### intervention on 

### questions relating to 

### Stadium's compliance with 

### Sections 1304 and 1330. 

### SugarHouse also had the full and 

### fair opportunity to appeal the Board's decision to 

### deny it intervention, and to argue to our 

### (continued...) [J-133-2016and

### J-134-2016] - 23B. 

### Appeal

### ofMarketEastat 125 

### EM2016, 

### J-134-2016 1. 

### Board

### compliancewith remandorder. We turn nowto the issues raised by Market East. Market East

### firstcontends that the Board 

### misinterpreted, or 

### otherwise failed to 

### comply with, the terms of our remand order, by issuing a 

### Supplemental Adjudication ratherthan 

### conducting a 

### formal hearing after the matterwas returned to it 

### forfurtherproceedings. Market East 

### asserts that the 

### Board's review of the existing evidentiary record and 

### issuance of the 

### Supplemental Adjudication did not 

### constitute "further proceedings" within the meaning ofthose terms
as used in our remand order. It 

### proffers thatthe term 

### "proceedings" should be 

### strictly interpreted in 

### accordance with one of its 

### enumerated definitions in 

### Black's Law Dictionary, 

### namely as "[t]he business 

### conducted by a 

### court or 

### other official body; a hearing." Market East Brief 

### (J-134-2016) (PublicVersion) at 20. Thus, in its view, the Board 

### was required by 

### our Court's order to 

### conduct a 

### formal hearing and 

### allow it to 

### presentnew

### evidenceand 

### argumentwith respectto

### these matters. Additionally, Market East 

### claims that the Board also failed to 

### comply with our Court's remand 

### order by 

### failing to 

### address in its 

### Supplemental Adjudication whether Manoukian acquired a 

### financial interest in Stadium through specific 

### transactions
(...

### continued) Court thatthe 

### decision was in error. 

### Application of the law of the case doctrine under these 

### circumstances does not 

### deny SugarHouse due process. See, e.g., 16D C.J.S. 

### Constitutional Law § 2004 ("The application of the law-of-the-case 

### doctrine on remand does not

### violatedue process if a 

### party had an 

### ample opportunity to raise

### factual issues earlier in the litigation."); 

### Federated Mutual Insurance Company v. 

### Anderson, 991 P.2d 915, 927 (Mont. 1999) (same), 

### abrogated on 

### other grounds by Citizens 

### Awareness Network v. 

### Montana 

### Board

### ofEnvironmental Review,227 P.3d 583 (Mont. 2010). 24 Given 

### thatwe are

### dismissing SugarHouse's petition for review,wedo not

### address its 

### arguments regarding the Board's alleged 

### non-compliance with our remand order. With 

### respect to 

### SugarHouse's claim 

### that the Board 

### violated the Sunshine Act, we find that this claim is not yet ripe for adjudication, since, as 

### explained infra, we are again 

### remanding this case to the Board for

### further proceedings. Any alleged violation of the SunshineAct bythe Board's 

### conduct ofthose proceedings may beraised at

### thattime.



### [J-133-2016and

### J-134-2016] - 24

### enumerated in that remand order, i.e., his 

### proposed equity infusionto Sterling Investors Trust and the 

### financial arrangements by which his 

### family members acquired their ownership interests in Sterling Fiduciary. The Board 

### responds by 

### asserting that, 

### while our remand order was limited in scope, in that it 

### directed the Board to 

### consider two narrow issues on remand because the Board's disposition ofthem 

### was not

### adequatelyexplained in its original Adjudication, theorder nevertheless granted the Board broad discretion asto

### whattype of

### proceeding it

### wasto 

### conduct afterremand. The Board 

### acknowledges that itwas obligated to

### follow the 

### specific directives in the remand order, but it points out there was no 

### language in 

### thatorderwhich directed itto usea 

### particular means of

### compliance such as

### conducting

an 

### evidentiary hearing, or 

### reopening the record to

### take additional evidence. The Board rejects the assertion that there should be a 

### standard definition of 

### these terms when used in a remand order from an 

### appellate court, since 

### every case in which a matter is 

### remanded to the 

### administrative agency presents unique 

### circumstances, and it iswithin the discretion of the 

### agency to 

### choose what particular action on its part is needed to 

### address the issues in 

### accordance with the terms ofthe 

### appellate court's order. Here, the Board 

### contendsthat "[t]here simplywas no need to take

### furtherevidenceto resolve the two limited issues, as neither the law nor

### facts related to 

### either issue had 

### changed since theevidentiary recordclosed," Board 

### Brief (J-133-2016) at21, and thatthe Board did 

### what the 

### order required it to do by reviewing the extant 

### evidentiary record, and issuing its

### Supplemental Adjudication to

### furtherexplain its

### decision. We begin by

### observingthat, 

### although Pa.R.A.P.2591 

### requires the courtor 

### other government unit on remand to 

### "proceed in 

### accordancewith the

### judgment or

### otherorder of the 

### appellate court," it does not 

### require the court or 

### government unit to utilize any 

### specific mode of 

### compliancewith a

### general remand order, such as atrial or 

### evidentiary

[J-133-2016and

### J-134-2016] - 25hearing. 

### Consequently, when an 

### appellate court remands for "further proceedings" there is no "one size fits all" 

### talismanic definition

### for thoseterms which is 

### applicable to all 

### cases and 

### situations. It is 

### axiomatic that the 

### facts and 

### procedural history of each
case as it

### developed in the lower court or 

### administrative agencywill be 

### different when 

### considered by an 

### appellatetribunal, and, thus, if thattribunal 

### determinesthat a remand for 

### further proceedings is 

### warranted, the nature of 

### those proceedings will 

### necessarily vary depending on the 

### specific circumstances presented by each 

### individual case. See 

### Newman Development Group

### ofPottstown, LLC v. 

### Genuardi's Family Markets, Inc., 52 A.3d 1233, 1247 (Pa. 2012) 

### (explaining that "remands may 

### encompass a 

### variety of 

### proceedings" including remand

### foran 

### opinion or

### explanation). Thus, every remand order

### directing that further proceedings be 

### conducted must 

### necessarily be

### examined in 

### conjunctionwith the opinion ofthe

### appellatetribunal andthe 

### particularfacts, circumstances, and 

### procedural history ofthe case in 

### order to

### determine whatthe lower

### court or

### tribunal is required todo upon return ofthe caseto it. It must be 

### emphasized that, when acase is 

### returned toa 

### lowercourt or

### administrative agencywith such a 

### directive, those tribunals have 

### usually already conducted some fact-finding or legal 

### analysis in the case and, 

### accordingly, this acquired 

### familiarity with the 

### already developed record allows the court or 

### administrative agency considerable discretion to 

### choose the specifictype of 

### proceedings it will

### conduct in

### order to fulfill the 

### purposes for whichthe

### appellate court has

### ordered remand. As recited above, when this matter was last before our Court, we 

### considered a 

### variety of legal 

### challenges to the Board's 

### November 18, 2014 order awarding the Category 2 slot 

### machine licenseto Stadium. The Board's 

### explanation of its 

### reasons

### for entering that order, setforth in its 

### Adjudication issued 

### thatsame day, was

### sufficient for

us to 

### conduct appellate review of all but two of the 

### appellate issues we were asked to



### [J-133-2016and

### J-134-2016] - 26

### decide: 

### whether the award of the license 

### violated Sections 1304(a)(1) or 1330 of the Gaming Act. Becausewe agreedwith Market East's contention inthat appealthat the Board's Adjudication did not 

### sufficiently articulate its 

### rationale for determining that Stadium's post-licensure structure complied with 

### these statutory sections, we remanded to the Board for it to 

### conduct "further proceedings" with regard to 

### thesetwo 

### questions sothat
we could engage in 

### proper appellate review of its prior legal 

### conclusion thatthe award of the license did not 

### violate these statutory provisions. We left it to the 

### Board's discretion as the

### finder and 

### trierof

### fact to

### determinewhether it could 

### sufficiently explain its 

### rationale 

### for finding Stadium's post-licensure ownership structure compliant with 

### Sections 1304(a)(1)and 1330 based ontheextant record before it, 

### or

### whether it needed to take 

### additional evidence to 

### complete its task. 

### While the Board was 

### certainly free under our remand order to 

### conduct additional hearings and receive 

### supplementary evidentiary submissions if it 

### consideredthatcourse of action 

### necessary to 

### comply with
our 

### directive, therewas nothing in ourorderwhich compelled itto do so. 

### Therefore, we deem the 

### particular proceedingswhichthe Board 

### undertook in 

### response toour 

### order

# - the preparation of a 

### Supplemental Adjudication in which it 

### explains, based on the 

### evidentiary record 

### already before itand matters of public record,the reasons supporting its prior 

### determination that Stadium complied with 

### these statutory provisions, and, 

### correspondingly, why its 

### order awarding Stadium the Category 2 

### license wassupported 

# -tobe a

### suitable mode of

### compliance. We also reject 

### Market East's contention that the Board 

### was required under our remand order to receive additional factual evidence or 

### argument at a 

### formal hearing in 

### order to 

### articulate its 

### definition of theterm 

### "financial interest," as used in Section 1330. We directed the Board to explain how it 

### interpreted the Gaming Act and its own



### [J-133-2016and

### J-134-2016] - 27

### regulations to 

### define this term, which is a 

### purely legal 

### exercise reviewable de 

### novo by this Court.25 

### Accordingly, we 

### reject Market East's contention that the Board 

### failed to 

### followour remandorder. 2. 

### The 

### Board's 

### definitionof"financial interest" underSection 1330. Next, Market East 

### contends that the Board erred by 

### adopting an 

### excessively restrictivedefinition ofthe term "financial interest" which is at odds with the 

### commonly understood definition of that term. We 

### first recount the Board's 

### explanation in its 

### Supplemental Adjudication of how it

### definesthisterm. The Board notesthat thisterm is not

### defined in Section 1330; however, it

### acknowledgesthattherearetwo

### other places in the Gaming Act 

### where the term is 

### defined: (1) Section 1201, which 

### establishes the 

### membership, composition, and 

### terms of the Board 

### members, and places restrictions on the Board and its staff, 

### defines "financial interest" as "[a]n 

### ownership, property, leasehold or 

### other beneficial interest in an entity," 4 Pa.C.S. § 1201; and (2) Section 1512, which restricts the 

### financial interests of "an 

### executive-level public employee, publicofficial or party officer, or an 

### immediate family memberthereof," describes these terms as "[o]wning or holding, or being 

### deemed to hold, 

### debt or 

### equity securities or 

### other ownership interest or profits interest," Id. § 1512. 

### The Board 

### considered these definitions to be 

### restricted to the 

### statutory sections in which they appear and not to 

### applyto the

### definition of

### financial interest used in Section 1330.
In 

### formulating its 

### definition of 

### financial interest applicable to Section 1330, the Board 

### recounted that it 

### first examined the 

### language of the 

### sentence in which it was used, i.e., "may possess an 

### ownership or 

### financial interest that is 

### greater than 33.3%."

25 

### Although we conclude that the Board 

### complied with the 

### directives in our remand order, that does not mean, as 

### discussed below, 

### that we agree with its 

### ultimate legal 

### conclusion regardingthedefinition of

### financial interestunderSection 1330 and its useof 

### thatdefinition in its

### analysis ofthe

### questionsweasked itto resolve.



### [J-133-2016and

### J-134-2016] - 28Id. § 1330. The Board found that, because this 

### sentence uses the 

### disjunctive "or" to 

### distinguish financial interest from 

### ownership interest, this signifies the intent of the 

### legislature to have 

### financial interest be 

### distinguishable in meaning from direct ownership. The Board next 

### viewed the use of the 

### "greater than 33.3%" language to 

### convey the 

### legislature's intentthat a

### financial interestbe 

### restricted in 

### meaning "to 

### things that are 

### quantifiable, on a 

### percentage basis, up to 100% `of a slot 

### machine 

### licensee." Supplemental Adjudication, 6/23/16, at 18. The Board noted

### that it has 

### previously and 

### consistently interpreted "financial interest" to include both 

### "indirect ownership" of a casino through other entities and a "profits interest," as both are 

### quantifiable up to 100%. 

### Supplemental Adjudication,6/23/16,at 19. 

### Consistent with 

### what it 

### perceives to be the General 

### Assembly's intent to have
some 

### diversification of 

### ownership and control of 

### casinos, but not to 

### preclude large 

### lenderswhofinance the 

### construction of such 

### casinos, and 

### owners of the real estate on which casinos are 

### situated, from 

### financing multiple casino construction projects, the Board rejected the more traditional and

### expansive definition of

### theseterms to mean "an 

### interest equated with money or its 

### equivalent," which includes things such as "loan 

### agreements, leases and 

### security instruments." Id. at 19, n.18 

### (quoting Black's Law Dictionary, [631] [(6th Ed.)]). The Board 

### considers such 

### interests not to be easily quantifiable, and, 

### thus does not 

### consider them to be 

### financial interests, 

### "absent some uniquefactual circumstances." Id. 

### Although the Board 

### explained what it did not

### consider to be a 

### financial interest, the Board never 

### articulated a 

### definition 

### forthis term in the 

### Supplemental Adjudication. Even so, the Board 

### proceeded to a 

### putative analysis of Manoukian's financial interests in 

### Stadium. The Board 

### first reminded that it had 

### already determined that Manoukian had no 

### indirectownership interest in 

### Stadium in 

### excess ofthe

### statutory limit 

### imposed by



### [J-133-2016and

### J-134-2016] - 29Section 1330. See 

### SugarHouse I, 136 A.3d at 481. The Board then 

### proceeded to 

### analyze howthe profitsfrom Stadium's operations would be divided underthe terms of the 

### various operating agreements between the 

### entities which comprised its 

### ownership structure. The Board 

### determined that, 

### "[i]dentical to 

### ownership interests, all profits generated from the operation of 

### Stadium will be split equally between the entities [Stadium Casino Investors] SCI and 

### [Stadium Casino Baltimore Investors] SCBI." Supplemental Adjudication, 6/23/16, at 9. The Board found 

### thatthe profit division between the Sterling Investors Trust and SCI also paralleled the Sterling Investors 

### Trust's ownership interest in SCI. Thus, as the Sterling Investors 

### Trust owns 34% of SCI, 

### under the 

### Board's calculation, it 

### would receive 34% of its profits. Because SCI, in turn, owns 50% of 

### Stadium, the Sterling Investors Trust, by the Board's calculation, 

### ultimately receives 17% of 

### Stadium's profits.26 The remaining 

### percentage of 

### Stadium's profits

### flowto 

### Greenwoodthrough its 

### ownership interest in SCI. Because Greenwood owns 66% of SCI, which in turn owns 50% ofStadium, 

### Greenwood receives 33%of 

### Stadium's profits.27 The Board 

### determined, without explanation, that not all of the profits which 

### Greenwood receivesfrom Stadium will be 

### retained by Manoukian.28 

### Nevertheless, the Board 

### reasoned that, even if it 

### attributed all of 

### Greenwood's 33% profit interest in Stadium to 

### Manoukian, there is no 

### violation of Section 1330 

### because, by its

### estimation,

26 

### This computation is 

### derived by 

### multiplying these fractional profit interests together, (.34)(.50), to give Sterling Investors 

### Trust an 

### aggregate 17% (.17) profit 

### interest in 

### Stadium. 27 This 

### computation was arrived at bythe Board in the 

### following fashion: (.66)(.50) = (.33). 28 

### The Board 

### determined in its 

### first Adjudication that Manoukian owned 85.84% of 

### Greenwood. Adjudication, 11/18/14, at 80. 

### Assuming, as the Board does, 

### that Manoukian's profit interest 

### follows his 

### ownership interest, 

### Manoukian's actual profit interest in Stadium through Greenwood would 

### seemingly beonly 28%: (.8584)(.66)(.50)

= .28)



### [J-133-2016and

### J-134-2016] - 30Manoukian will receive none of the profits realized by the Sterling Investors Trust. The Boardfound that, once Manoukian 

### established the 

### irrevocable trust, he 

### relinquished all control over itsassets, inasmuch asthe 

### complete controlof

### those assets restedwith the 

### corporate trustee, Sterling Fiduciary, and Manoukian retained only a 28% minority interest in that corporation such that he did not control its 

### appointment of officers, directors, and 

### employees, nor could he control 

### decisions regarding trust management. Additionally, the 

### beneficiaries ofthe

### trustwere Manoukian's children, and

### their spouses, Supplemental Adjudication, 6/23/16, at 10, and, as set forth above, 

### Manoukian is not entitled underthe terms of the trust 

### document to receive any proceeds or

### distributions from thetrust. Market East argues 

### thatthe Board erred in not utilizing the 

### definition of 

### financial interest contained in 

### Sections 1201 and 1512, orthe 

### Board's regulation governing the financial interests of its 

### members which describes financial interest as "[a]n 

### ownership, property, leasehold or 

### other beneficial interest in an entity." 58 Pa. Code § 

### 403a.1. Market East 

### proffers that, even though these 

### definitions are broad, 

### they are in accord with the 

### common usage of 

### these terms as 

### reflected by the Black's Law 

### Dictionary definition the Board recited in the 

### SupplementalAdjudication. Further, in Market East's view, the more 

### expansive definitions chosen by the General 

### Assembly for financial interest in 

### Sections 1201 and 1512 are 

### evidence of its intent that the term 

### financial interest be 

### construed throughout the Gaming Act in 

### accordance with the 

### generally accepted meaning of

### theseterms. Market East assails the Board's reliance on the 

### quantifiability of an 

### interest as 

### determinative, as, in its view, this 

### disregards any financial interest that is not 

### simple to 

### calculate. Market East points out that the 

### definition which the Board adopted included indirect 

### ownership, even though the use of the 

### disjunctive "or" in Section 1330

# - i.e.,



### [J-133-2016and

### J-134-2016] - 31

### ownership or

### financial interest

# - indicatedthatthe legislature did not intendto 

### subsume any ownership interestwithin the 

### definition of 

### financial interest. Market East 

### contends that, in any event, other financial interests such as loans are 

### quantifiable up to 100%, yetthe Board offers no reason whythose interests are not included in its

### definition. Market East rejects the 

### Board's conclusion that including loans within the 

### definition of 

### financial interest would encompass commercial lenders or 

### holders of real estate on which casinos will be built, since Section 1330, by its

### terms, applies only to a "slot 

### machine licensee, its 

### affiliate, intermediary, subsidiary or holding 

### company," which typical commercial lenders and holders of 

### casino property would not be. To the contrary, 

### according to 

### Market East, Section 1330's restrictions were intended to 

### encompass someonewhoalready possesses a

### casino licensefrom 

### acquiring a

### financial interest in 

### another casino greater than 

### 33.3% so as to 

### guard against monopolization and to 

### promote competition. Market East 

### contends that the Board's definition 

### underminesthis legislative objective. Market Eastavers 

### thattheterm

### financial interest must begiven its plain meaning in 

### analyzing Manoukian's planned financial contributions to Sterling Investors Trust. Market East asserts that the proposed equity infusion by 

### Manoukian to the Sterling Investors 

### Trust would establish his 

### financial interest in that entity and, in turn, his 

### financial interest in 

### Stadium. This interest, it argues, when coupled with his 

### financial interest in 

### Stadium through Greenwood, would put Manoukian over the 33.3% limit 

### permitted by Section 1330. The Board 

### responds by 

### defending its 

### derivation of its 

### definition of 

### financial interest under Section 1330 set forth in its 

### Supplemental Adjudication, and it 

### largely reiterates in its brief its 

### reasoning set forth in 

### that adjudication for choosing this 

### particular definition. It notes, further, though, that our 

### Court recognized in 

### SugarHouse

[J-133-2016and

### J-134-2016] - 32I, 

### consistent with prior rulings from our Court, that it, as the 

### administrative agency taskedwith 

### interpreting and

### applying thisstatute, is bestsuited to furnish a

### definition of 

### theseterms. Additionally, in 

### support of its 

### interpretation, the Board cites to a 

### regulation it 

### promulgated in2007to 

### addressthe multiple slot machine license 

### prohibitionsof Section 1330

# - 58 Pa. Code § 

### 441a.17

# - though it did not 

### discuss this regulation in its 

### Supplemental Adjudication. Specifically, the Board notes 

### that paragraph (j) of this regulation states that "[n]othing in this section 

### concerning ownership or 

### financial interests applies to 

### contractual interests including those in the nature of 

### management contracts, options to 

### purchase exercisable after a 

### license has been issued or leases." 58 Pa. Code §

### 441a.17(j). The Board 

### arguesthata 

### promissory note,which isa 

### contract in 

### support of a loan,

### would fallwithin this 

### exclusion. The Board, however, 

### admits that, at present, the precise nature of the 

### equity infusion Manoukian will make to Sterling Fiduciary is 

### undetermined. See Board Brief at 26 ("The oneopen issue which remains regardingthe Sterling Investors Trust is how 

### Manoukian will

### finance it, by gift or loan."). The Board 

### contends that it is 

### therefore "premature to say Stadium is 

### precluded by Section 1330from 

### receiving a license." Id. at 28.29 Since the parties' 

### contentions focus on the 

### meaning of the term 

### "financial interest" as used in Section 1330 ofthe Gaming Act, we are 

### guided in 

### our review bythe 

### principles of the 

### Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq. ("SCA"). 

### The paramount objective of our 

### interpretative task under the SCA is to 

### "ascertain and 

### effectuate the intention of the General Assembly" in 

### enacting the 

### legislation under review. Id. § 1921(a). The 

### polestar indication of the 

### legislature's intent is the plain

29 

### Stadium, in its brief filed as Intervenor, aligns itself with the Board on these arguments.


### [J-133-2016and

### J-134-2016] - 33

### language of the statute. 

### Department

### of Environmental Protection v. 

### Cumberland Coal, 102 A.3d 962, 975 (Pa. 2014). 

### Accordingly, when interpreting statutory language, all "[w]ords and 

### phrases shall be 

### construed accordingto rules of

### grammarand 

### according to 

### their common and 

### approved usage." 1 Pa.C.S. § 1903(a). The SCA mandates that, if the 

### words of a 

### statute are 

### clear and 

### unambiguous, their plain meaning should not be 

### disregarded by a 

### reviewing court "underthe pretext of pursuing its spirit." Id. § 1921(b).
In addition to 

### these principles, the SCA also 

### furnishes certain presumptions of which a reviewing court is 

### entitled to avail itself in 

### order to ascertain the intent of our 

### legislature, two of which are relevant in this instance: (1) "the 

### General

### Assembly does not intend a result that is absurd, impossible of

### execution or 

### unreasonable," and (2) "the 

### General 

### Assembly intends the entire statute to be 

### effective and 

### certain." Id. § 1922(1), (2). Further, since we are 

### considering an 

### administrative agency's interpretation of its 

### governing statute, its 

### interpretation will "be given 

### controlling weight unless clearly erroneous." Borough

### of EllwoodCity v. 

### Pennsylvania 

### Labor Relations Board, 998 A.2d 589, 594 (Pa. 2010). Thus, although we accord an 

### administrative agency such as the Board 

### substantial deference in 

### construing the laws it is 

### tasked with administering, "we need not 

### defer uncritically, particularly if wefind 

### thatthe interpretation is 

### imprudent or 

### inconsistentwith legislative intent." 

### 500James Hance Court v. 

### Pennsylvania Prevailing Wage Board, 33A.3d 555, 573 (Pa. 2011). Applying 

### thesefoundational principles to the 

### interpretation of the term 

### "financial interest," we first note 

### that the Board is 

### correct that the 

### legislature did not 

### define this term as it did in 

### Sections 1201 and 1512 of the Gaming Act. As the parties have 

### discussed, those sections define financial interest in 

### terms of an 

### ownership, beneficial,

or profits interest in 

### anotherentity. 

### See4 Pa.C.S. § 1201 (defining "financial interest" as "[a]n 

### ownership, property, leaseholdor 

### otherbeneficial interest in an entity"); Id. § 1512



### [J-133-2016and

### J-134-2016] - 34(defining "financial interest" as "[o]wning or holding, or being 

### deemed to hold, 

### debt or 

### equity securities or

### otherownership interest or profits interest."). Thus, the 

### legislature's choice not to use 

### these 

### definitions for financial interest in Section 1330 

### suggests an intent to give this term a 

### different meaning in this 

### statutory section.3° See 

### Fletcher v. 

### Pennsylvania Property and Casualty Insurance GuaranteeAssociation, 985 A.2d 678, 684 (Pa. 2009) ("[W]here a

### section of a

### statute contains a given provision, the 

### omission of such a provision from a 

### similar section is 

### significant to 

### show a 

### different legislative intent."). However, 

### merely because the 

### legislature did not 

### incorporate the 

### definitions from 

### Sections 1201 and 1512 into Section 1330, itdoes not 

### necessarilyfollow, as the Board has 

### concluded, that the 

### legislature intended to have this term 

### construed in a 

### circumscribed manner so as to 

### exclude from the 

### definition its 

### ordinary meaning.31 To the contrary, as

### detailed above, a 

### proper interpretation of this term, which on its 

### face is 

### unambiguous, must 

### necessarily consider its 

### common and 

### approved usage in the English language, which may be 

### determined from its 

### dictionary definition. In re Beyer, 115A.3d 835, 839 (Pa. 2015). 

### Conventional dictionaries do not 

### define the term "financial interest." Nevertheless, 

### Webster's defines "financial" as 

### "pertaining or relating to 

### money matters;

3° 

### Accordingly, we disagree with 

### Justice Baer 

### that we should import the definition of 

### "financial interest" from 

### either Section 1201 or 1512. Indeed, as the 

### discussion in his 

### concurrence makes plain, the 

### definitions in 

### those two 

### sections, while similar, address different contexts, and contain 

### distinctexclusions. See Concurring Opinion (Baer,J.) at 3-7. The 

### legislature could have, but did not, include either of 

### these definitions (or 

### their relatedexclusions) in Section 1330. 31 Forthis reason, we 

### disapproveof the 

### Board's incorporation of an indirectownership interest into its 

### definition of 

### "financial interest," as an indirect ownership interest is 

### encompassed within the term 

### "ownership interest." Although we do not 

### disagree that the term "financial interest" might naturally be 

### defined as also including an 

### ownership interest, as the 

### concurrence also offers, see 

### Concurring Opinion (Baer, J.) at 6-7, the 

### legislature, through the use of the terms "ownership or financial interest" in the 

### disjunctive context evidences, in our view, its 

### intent for these terms to have 

### separate meanings.

[J-133-2016 and

### J-134-2016] - 35pecuniary." Webster's 

### Unabridged Dictionary 

### of the 

### English Language 719 (2d. ed. 1998); "Pecuniary" is also 

### understood to mean 

### "[o]f or relating to money." 

### American Heritage Dictionary622 (4th ed. 2001). Further, "interest" is 

### pertinentlydefined as "[a] right, claim or legal 

### share in 

### something." Id. at 445. Thus, a

### financial interestwould be any monetary right, claim, or legal share. This is 

### consistent with the 

### Black's Law 

### Dictionary definition referenced by the parties. See Black's Law Dictionary 1846 (10th ed. 2014) (defining "financial interest" as "[a]n 

### interest involving moneyor its

### equivalent; esp., an 

### interest in the nature of an 

### investment

# - Also termed 

### pecuniary interest' (emphasis original)). Consequently, applyingtheseordinary and 

### commonly understood meaningsto theterm "financial interest" as used in Section 1330, we 

### construe Section 1330 to 

### prohibit a slot 

### machine licensee, or its 

### affiliate, from possessing a 

### legally enforceable monetary right or claim 

### against another slot machine licensee, or an 

### investment in 

### another slot machine licensee, which exceeds 33.3% of the value of that slot machine licensee's 

### financial assets. This definition is 

### therefore broad enough to 

### encompass loans from one slot 

### machine licensee to 

### another since, in that situation, the licensee which isthe lender 

### acquires a 

### monetary right orclaim to 

### repayment ofthe loan 

### proceeds from the 

### recipient licensee in 

### accordance with the loan's terms. See 

### also 4 Pa.C.S. § 1311 (defining financial interest of "agents, 

### employees or persons" in slot machine license 

### applicantto include 

### "debtorequity securities" (emphasis added)). This definition is 

### consonantwith the 

### legislature's stated objective in the Gaming Act 

### that it "be 

### implemented in such a 

### manneras to 

### prevent possible monopolization by 

### establishing reasonable restrictions on the control of 

### multiple licensed gaming facilities in this 

### Commonwealth." Id. § 1102(5). A 

### licensee which is a 

### significant lender or 

### investor in multiple other licensees may 

### conceivably acquire a 

### proportional degree of 

### influence over those licensees, undermining their ability to 

### effectively compete, and



### [J-133-2016and

### J-134-2016] - 36

### fostering monopolistic forces which the legislature sought to avoid through Section 1330's strict caps on the 

### proportional ownership and

### financial interestone licensee may possess in 

### another licensee. We, therefore, 

### cannot countenance the Board's narrow 

### interpretation of

### financial interestto 

### excludethesetype of 

### monetaryarrangements. We recognize, of course, that our 

### interpretation is 

### contrary to the Board's 

### interpretation of the regulation which it 

### promulgated to 

### provide guidance as to the meaning of the term 

### "financial interest," 58 Pa. Code § 

### 441a.17(j), since the Board views 

### that regulation as 

### excluding contracts associated with a loan such as 

### promissory notes. Respectfully, we must conclude that the Board's interpretation of this 

### regulation is 

### clearly erroneous, and, thus, we are not 

### required to 

### defer to it. 

### This regulation provides: "Nothing in this section 

### concerning ownership or 

### other financial interests applies to 

### contractual interests including those in the nature of 

### management contracts, options to 

### purchase exercisable after a license has been issued or leases." Id. By including 

### promissory notes, which are 

### contracts, within the scope of this regulation, 

### despite its lack of 

### explicit reference to such 

### instruments, the Board has 

### interpreted this regulation in a 

### mannerwhich could conceivably exclude from the 

### definition of

### "financial interest" a 

### widevariety of 

### contracts entered into by a 

### licensee, not

### just the limited type of 

### specialized service, property rental, or 

### purchase contracts enumerated in the 

### regulation. Such an 

### interpretation would absurdly exclude 

### anycontract establishing a 

### monetary obligation of one slot machine licensee to 

### another from the 

### ambit of Section 1330. Thus, for instance, any operating 

### agreements between licensees that assign gaming revenue from one licensee to 

### another would be 

### regarded as not creating a 

### financial interest in the 

### assignee, even if the 

### contract required the 

### obligor licensee to paythe

### assignee 100% of its revenues.



### [J-133-2016and

### J-134-2016] - 37For all of 

### these reasons, we must 

### reverse the Board's determination of 

### what constitutes a 

### financial interest as that term is used in 

### Section 1330 of the Gaming Act. Moreover, inasmuch as the Board, by its own 

### admission, has not identified exactly 

### what type of 

### equity infusion Manoukian will be making to the Sterling Investors Trust, i.e., a loan orgift, nor has the Board 

### identified the nature of the

### financial transaction bywhich he 

### transferred his 

### ownership interest in Sterling Fiduciary to his 

### family members, we must again remand to the Board for it to 

### conclusively determine these matters and to 

### correspondingly determinewhether either of

### these transactions will result in Manoukian having a 

### financial interest, as we have defined those terms in this opinion, in Stadium post-licensing which is in 

### violation of Section 1330.32
3. 

### Manoukian's

### eligibilitytoapply

### for a

### Category 1 

### slot machine license

### during Stadium'sapplication process. Finally, we 

### address Market East's argument that the Board erred in its 

### determinationthat Manoukian was not 

### eligibleto applyfor another additional Category 1 slot machine license in 

### addition to the license he 

### possessed as an 

### affiliate of Parx Casino. The Board 

### found that, in 

### order for an 

### individual to be eligible to 

### apply for a 

### Category 1 license, Section 1302 of the Gaming Act requires that the 

### applicant have been 

### previously issued a horse or harness racing license, and 

### conducted horse or harness racing for at least two years at the location 

### where the 

### applicant wants to 

### operate a 

### Category 1 

### licensed facility. The Board noted that, in 2013, in the midst of 

### Stadium's application process, there was one 

### remaining Category 1 

### license available, and an 

### entity known as 

### ValleyView, which held a 

### harness racing license for a 

### racetrack it 

### was seeking to build in 

### Lawrence County, filed an 

### application for that Category 1

32 Inasmuch as 

### these matters are not of record, it 

### would appear that the Board, on remand, must re-open the 

### evidentiary record and 

### develop evidence to 

### answer these questions.

[J-133-2016and

### J-134-2016] - 38license. Valley View sold its 

### interest in the 

### racetrack project to Endeka Entertainment ("Endeka") in 2013, and Endeka 

### received the harness racing license previously awarded to 

### Valley View. The Board 

### found, based on its 

### previously conducted background investigation of 

### Stadium and 

### Manoukian, that neitherthey, nor any of 

### their affiliates, were owners or 

### financiers of, or 

### otherwise involved with, Endeka or 

### Valley View. The Board also 

### examined the lists of slot machine and 

### racetrack applicants published in the 

### Pennsylvania Bulletin and 

### determined that neither Stadium, nor 

### Manoukian, received a new horse or harness racing 

### license during the entirety of the 

### time Stadium's application was pending, nor had 

### either applied for such a license. Because neither Manoukian, nor

### Stadium, possessed a horse orharness racing license, the Board 

### reasoned that neither was eligible to apply for a 

### Category 1 

### license during thistime period. Market East 

### argues that the Board is 

### incorrect in its 

### conclusion, because Manoukianwasalready a

### Category 1 

### license holderthrough Greenwood, and, thus, 

### this fact indicatedthat itwas 

### presumptivelyeligibleto applyfor such a 

### licenseagain. Market East also 

### contends that the 

### Board's conclusion rested on the fact that Endeka had 

### already applied for the last remaining 

### Category 1 license, and, thus, no 

### licenses were available. Nevertheless, Market East avers that the

### availability of a 

### Category 1 

### license is 

### irrelevanttoan 

### applicant'seligibilityto

### applyfor such a license. The Board respondsthat the 

### requirements of Section 1302 are clear

# -a person
or 

### entity must already possess a horse or harness racing license in

### order to 

### apply for a 

### Category 1 

### license

# - and the record 

### indicates that, at the time Stadium applied for its 

### Category 2 license, neither Manoukian, nor any other entity or person 

### affiliated with 

### Stadium, soughtorwas issued a new horse or harness racing license. The Board notes that 

### Manoukian's current horse racing license is, as are all such licenses, location -

[J

### -133-2016and

### J-134-2016] - 39

### specific for Greenwood's Parx 

### Casino facility and may not be 

### transferred to a new location, andthus, neither 

### Manoukian, noranyother of 

### Greenwood's affiliates, may use itto

### applyfora new 

### Category 1 license. 

### Consistent with the 

### intent of the 

### legislature in 

### structuring the Gaming Act to 

### prevent control of multiple gaming facilities by one individual or entity, Section 1304(a)(1) of the Gaming Act excludes from 

### eligibility to 

### applyfor a 

### Category 2 

### license any individual or 

### entity which is also "eligible to apply for a 

### Category 1 license." 4 Pa.C.S. § 1304(a)(1). The eligibility 

### requirementsfor an 

### individual or entity to 

### apply for

a

### Category 1 

### licenseare setforth in Section 1302 ofthe Gaming Act, which provides: (a) 

### Eligibility.--A person may be 

### eligible to 

### apply for a 

### Category 1 

### license to place and operate slot 

### machines at a licensed 

### racetrackfacility ifthe person: (1) has been issued 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-mutuelwagering and has 

### conducted live horse races for not less than two 

### years immediately preceding the effective date ofthis part; (2) has been 

### approvedor issued a 

### licensefrom either the State Horse Racing 

### Commission or the State Harness Racing 

### Commission to 

### conduct thoroughbred or harness race meetings 

### respectively with 

### pari-mutuel wagering within 18 months 

### immediately precedingthe 

### effectivedateofthis part andwill 

### successfullyconduct live racing 

### pursuanttothe 

### requirements of section 1303 (relating to 

### additional Category 1 slot machine license 

### requirements); (3) has been 

### approved by the State Harness Racing 

### Commission, afterthe 

### effective date of this part, to 

### conduct harness race 

### meetings with 

### pari-mutuel wagering and will 

### conduct live


### [J-133-2016and

### J-134-2016] -40racing 

### pursuant to the 

### requirements of section 1303; or (4) is a

### successor in 

### interest to 

### persons eligible under paragraph (1), (2) or (3) whocomplywith the 

### requirements of section 1328 (relating to 

### change in 

### ownership or

### control of slot machine licensee) or is a 

### successor in 

### interest to 

### persons otherwiseeligible under paragraph (1), (2) or (3) but 

### precluded from 

### eligibility under the provisions ofsection 1330. Nothing inthis partshall be 

### construed to 

### permit the

### approval or 

### issuance of more than one slot machine license at a licensed 

### racetrackfacility. (b) 

### Location.--A 

### Category 1 

### license may only be issued to an 

### eligible person authorizing slot machine operations atthe 

### particular licensed racetrack facility identified in the 

### application. No 

### Category 1 

### licensed facility shall be located within 20 

### linear miles of

### another Category 1 licensed facility.

Id. § 1302. 

### (footnotesomitted). We agree with the Board that, under the plain 

### language of 

### these statutory provisions, only an 

### individual or

### entitywhich has been 

### approved for, or issued a 

### license by, the State Racing 

### Commission or the State Harness Racing Commission for a 

### particular location is 

### eligible to 

### applyfor a 

### Category 1 slot machine license. Having an 

### approved or issued horse or harness racing license, is, thus, a 

### necessary predicate condition for an 

### individual to be 

### eligibleto applyfor a 

### Category 1 license. Asthe record supports the Board's 

### determination that neither Manoukian, nor 

### Stadium, nor any of 

### their affiliates had been, during the time Stadium's Category 2 license application was pending, either approved for or issued a horse or harness racing 

### license for a location



### [J-133-2016and

### J-134-2016] - 41

### otherthan the locationcovered bythe Parx 

### Casino license,33we must affirm the 

### Board's finding thattheywere ineligible toapplyfora

### Category 1 

### licenseunderSection 1302.34 III. 

### Conclusion We grant the 

### Board's motion to 

### dismiss SugarHouse's petition for reviewat 124 EM 2016, as it

### was not entitled to 

### intervene in the 

### proceedings on remand.35 In Market East's petition 

### for review, at 125 EM 2016, we affirm the 

### Board's adjudication to the 

### extent that it

### determined that Manoukianwas not 

### eligible to 

### applyfor a 

### Category 1 slot machine license at the 

### time of Stadium's application 

### for its 

### Category 2 license. However, we reverse the Board's 

### determination of

### what constitutes a 

### financial interest

as 

### that term is used in 

### Section 1330, and we remand to the Board for 

### further proceedings consistent with this 

### opinion. Specifically, the Board is to 

### determine whether, afterStadium's licensure, 

### Watche Manoukian will 

### possess a 

### financial interest in Stadium in 

### excess of the 

### 33.3% permitted by Section 1330, 

### either through his planned equity infusion to Sterling Investors Trust, or via the transaction by which he 

### conveyed his 

### ownership interest in Sterling Fiduciary Services to his 

### family members.

33 

### Although the mere fact that Manoukian affiliate Greenwood already possessed a harness racing license and 

### Category 1 

### license for its Parx 

### Casino facility did not 

### automatically disqualify Manoukian from holding a 

### Category 1 

### license for another location, conversely, this possession of a 

### Category 1 

### license for the Parx 

### Casino did not, in and of itself, make 

### Manoukian automatically eligibleto 

### applyforanother category

1 license for a 

### different location. As the Board notes, harness racing licenses which have 

### already been 

### granted are 

### restricted to the 

### specific location for which 

### they were issued. See 3 Pa.C.S. § 9314. 34 In making its

### determination of 

### whether Manoukianor any of 

### Stadium'saffiliates had been 

### approved for, or been issued, a horse or harness racing license, the Board 

### was entitled to take 

### judicial notice of the 

### proceedings of 

### other administrative agencies as 

### published in the 

### Pennsylvania Bulletin. See 45 Pa.C.S. § 506 (specifying 

### that the 

### contents of the 

### Pennsylvania Code and 

### Pennsylvania Bulletin "shall be 

### judicially noticed"). 35 

### Sugarhouse's Motionsfor Leave to File Under Seal the Confidential and 

### Unredacted Versions of its Principal Brief, ReplyBrief, and 

### Reproduced Recordare hereby granted.



### [J-133-2016and

### J-134-2016] -42The Board is 

### directed to 

### conduct all 

### appropriate proceedings in 

### order to receive evidence sufficient for it to make this 

### determination, including but not 

### limited to, reopening the 

### evidentiary record and holding a public hearing. The Board is also 

### directed to

### follow its normal 

### procedures and issue an 

### appropriate final order after it has made

### thesedeterminations. Jurisdiction relinquished. Chief Justice Saylor and 

### Justices Donohue, Dougherty, 

### Wecht and Mundy join theopinion. ChiefJustice Saylorfiles a

### concurring opinion. Justice Baerfiles a

### concurring opinion.

[J-133-2016 and

### J-134-2016] -43