IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ruben M. Collazo

, : Petitioner :

:

v. : No. 1 3 M.D. 20 20

: Submitted: August 28 , 2020 Pennsylvania Gaming Control Board

, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: December 29, 2020

Before this Court is an application for summary relief in the nature of a
request for judgment on the pleadings filed by the Pennsylvania Gaming Control

Board ( Gaming Board)

. Ruben M. Collazo 1 has filed a petition for review addressed
to this Court’s original jurisdiction that challenges the Gaming Board’s

interpretation of Sections 1514 2 and 1515 3 of the Pennsylvania Race Horse
Development and Gaming Act (Gaming Act) , 4 Pa. C.S. §§1514, 1515

. The
Gaming Board asserts that the petition for review is barred by the doctrine s of res judicata and collateral estoppel.

1 On January 6, 2020, the Court issued an order directing that this matter, which began as a n appeal from a determination of the Office of Open Records , be treated as a petition for revie w addressed to this Court’s original jurisdiction.

2 Section 1514 grants the Gaming Board the authority to promulgate regulations for the establishment of a list of persons excluded from gaming by the Commonwealth. 4 Pa. C.S. §1514.

3 Section 1515 establishes a licensed gaming entity’s ability to exclude persons from its facility

. 4
Pa. C.S. §1515.2 The petition for review explains that p ursuant to the Right

- to

- Know

Law

, 4 Collazo requested the Gaming Board to provide information on “the number

of investigations conducted [] pursuant to Section 1514(c)” of the Gaming Act.

Petition at 1, ¶2

, Attachment 1

. The Gaming Board denied his request on the basis

that the request did not request records but, rather

, research

. Collazo appealed the
Gaming Board’s denial to the Office of Open Records, which ordered the Gaming

Board to “conduct a good faith search and provide all records responsive to the
[r]equest within [30] days.” Id.

On October 21, 2019, t he Gaming Board adv ised Collazo that it had no
records responsive to his request. It explained as follows :

Section 1514 of the Gaming Act pertains solely to the Board’s statewide Involuntary Exclusion List, and the Board’s power and authority to exclude persons from all cas inos in the Commonwealth of Pennsylvania if the Board determines that the persons [sic] presence in a casino would be inimical to the interest of t he Commonwealth or of licensed g aming therein. Paragraph (c) of that section mandates that the Board cannot use a person’s race, color, creed, national origin, ancestry or sex as a basis for placing a person on the Board’s statewide Involuntary Exclusion List.

[Y]our request asking for “the number of investigations conducted pursuant to section 1514(c)” is, in fact, asking for the number of investigations that the Board has conducted on itself for putting someone on the Board’s statewide Involuntary Exclusion Lis t for one of the listed discriminatory reasons. No such investigation has occurred....

Additionally , it is worth noting that Section 1514 operates totally independent of Section 1515 of the Gaming Act . [The Board understands] that you have been barred from entering the Mt.

4 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101

- 67.3104

.3 Airy Casino. This was done by Mt[.] Airy pursuant to Section 1515, not Section 1514, of the Gaming Act. As a result, the language found at Section 1514(c) is not applicable.

Petition at 1, ¶3, Attachment 2 (emphasis in original)

. Collazo ’s petition for review

seeks a declaration that the “licensee exclusions pursuant to 4 Pa. C.S. §1515 are
subject to [the Gaming Board ’s] statutory review pursuant [ to Section] 1514(e) [ 5 ]

and Gaming Board Regulation [Section] 511a.3 (d).” 6 Petition at 2, ¶5.

The Gaming Board filed an answer and new matter that asserts the

defenses of collateral estoppel and res judicata . The Gaming Board asserts that
Collazo has previously challenged its interpretation and application of Sections 1514
and 1515 of the Gaming Act before the Pennsylvania Magisterial District Court 43

-

4

- 2 ; the Court o f Common Pleas of Monroe County ; the Commonwealth Court of
Pennsylvania ; the Superior Court of Pennsylvania ; the United States District Court
for the Middle District of Pennsylvania ; and the United States Court of Appeals for

the Third Circuit. Asserting the doctrines of collateral estoppel and res judicata , t he

5 This Section states: Any list compiled by the board of persons to be excluded, ejected or denied access
shall not be deemed an all

- inclusive list, and a licensed gaming entity shall ha ve a duty to keep from the licensed facility and from interactive gaming persons known to it to be within the classifications declared in this section and the regulations promulgated under this section whose presence in a licensed facility or whose partici pation in interactive gaming would be inimical to the interest of the Commonwealth or of licensed gaming therein, or both, as defined in standards established by the board.
4 Pa. C.S. §1514(e).

6 This Section provides that: A person’s race, color, creed, n ational origin or ancestry, or sex will not be a reason for placing the name of a person upon the exclusion list.
58 Pa. Code §511a.3(d).4

Gaming Board has filed an application for summary relief in the nature of a motion
for judgment on the pleadings

. 7

“ Res judicata encompasses two related, yet distinct principles:

technical res judicata and collateral estoppel.” J.S. v. Bethlehem Area School

District, 794 A.2d 936, 939 (Pa. Cmwlth. 2002)

. Technical r es judicata

, or claim
preclusion, bars a claim where there has be en a final judgment on the merits of that

claim, or issue, in a prior action. Id

. C ollateral estoppel acts to “ foreclose litigation
in a subsequent action where issues of law or fact were actually litigated and
necessary to a previous final judgment. ” I d.
To apply technical res judicata , there must be identity of (1) the things
sued upon or for, (2) the caus es of action, (3) the parties to the action, and (4) the
capacity of the parties in each matter

. Id. Res judicata applies to claims that were
actually litigated as well as those that “ should have been litigated” in the prior action.

Id.

On the other hand, the doctrine of c ollateral estoppel bars an action
where there was a prior action in which (1) the same issue s were litigated ; (2) those

issues were necessary to a final judgment on the merits ; (3) the party against whom
collateral estoppel is asserted was a party or was in privity with a party in the prior

action ; and (4) that party had a full and fair opportunity to litigate the issue in

7 “ A motion for judgment on the pleadings is in the nature of a demu rrer; all of the opposing party’ s allegations are viewed as true and only those fac ts which have been specifically admitted by him may be considered against him.” Trib Total Media, Inc

. v. Highlands School District , 3 A.3d 695, 698 n.2 (Pa. Cmwlth. 2010 ) (citation omitted). In reviewing a motion for judgment on the pleadings, this Court “ may only consider the pleadings themselves and any documents properly
attached thereto. ” Id. The motion should only be granted “ when the pleadings show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ” Id. Where material issues of fact are in dispute, judgment on the pleadings cannot be entered. Tate v. Pennsylvania Board of Probation and Parole , 396 A.2d 482, 483 (Pa. Cmwlth. 1979).5

question. Robinson v. Fye , 192 A.3d 1225, 1232 (Pa. Cmwlth. 2018) (quo tation s

and citation s omitted). Collateral estoppel protects litigants from having to relitigate
the same issue with the same party and thus, promo tes “ judicial economy through
preventing needless litigation. ” Id. (quoting McNeil v. Owens

- Corning Fiberglas s
Corporation , 680 A.2d 1145, 1148 (Pa. 1996)).

With those principles in mind, we turn to the pleadings. T here is no
dispute that there is no genuine issue as to any material fact

, which is a prerequisite
for a judgment on the pleadings. Trib Total Media, 3 A.3d at 698 n.2

. Notably,

Collazo does not contend in his brief that the elements of technical res judicata are not met or that any oth er element of collateral estoppel i s lacking. Rather, h is brief

offers only the conclusory statement that the Gaming Board ’s arguments lack merit

.

C ollazo ’s petition seeks a ruling that a licensed casino that excludes a n

individual from its gaming facility under Section 1515 of the Gaming Act must
comply with Section 1514 of the Gaming Act

. Specifically, he believes it is

i ncumbent upon the Gaming Board to review the licensed casino’s list of excluded

patrons to ensure that the casino’s lis t is not based on the patron’s race, color, creed,

nati onal origin or ancestry, or sex

, none of which can be a reason “for placing the
name of a person upon the exclusion list.” 58 Pa. Code §511a.3(d). Stated

otherwise , Collazo contends that a licensed c asino may not exclude a patron from its
facility without the prior review and approval of the Gaming Board.

I n Collazo v. Mount Airy #1, LLC (Pa. Cmwlth., No. 175 C.D. 2015,

file d September 10, 2015)

, appeal denied , 131 A.3d 493 (Pa. 2016) (unreported), 8

Collazo filed a declaratory judgment against the Mount Airy casino for improperly

8 Under this Court’s internal operating procedures, “[a]n unreported opinion of this Court may be cited and relied upon when it is relevant under the doctrine of th e law of the case, res judicata or collateral estoppel.” 210 Pa. Code §69.414(a).6

excluding him from its facility . Collazo argued that the casino, as a licensee, could
not exercise common law rights as a property owner to decide whether t o exclude a
person from its premises because Section 1514 of the Gaming Act limit ed its
authority to exclude patrons

. The trial court dismissed Collazo’s action for failing
to state a cognizable legal claim, explaining

, in relevant part:

Collazo’s allegations as to [the casino’s] non

- compliance with Section 1514 of the Gaming Act (relating to Board placement of a patron on an excluded patron list) do not apply to a claim regarding proper construction of Section 1515 of the Gaming Act [] (relating to licensee s ’ rights to exclude patrons). Notably, Collazo did not contend the Board placed him on a list resulting in his exclusion from all casinos. As a result, Colla zo had no right to due process and the notice provided prior to placement on the excluded patron list as set forth in Section 1514.

Collazo , slip op. at 4

- 5 (emphasis in original).

On appeal

, this Court explained that Section 1515 of the Gaming Act
“preserves the common law rights of property owners[,]” i.e. , casino licensees , by
allowing them to “exercise their common law rights to exclude persons from their

licensed facilities.” Collazo , slip op. at 8

. By contrast

, Section 1514 of the Gaming

Act applies where the Gaming Board seeks to exclude certain persons from licensed

casinos as a matter of public interest . In other words, Section 151 4 has no bearing
on a casino’s right to exclude patrons under Section 151 5 . “[T]he only li mitations
Section 1515 recognizes as to [ a casino’s] discretion to exclude patrons ... are those

based in the common law.” Collazo , slip op. at 12

- 13

. We affirmed the trial court ’s
holding that “Section 1514 does not limit the rights of licensees []” to exclude
persons from their facilities

. Collazo , slip op. at 10

.

I n May of 2016, Collazo commenced a federal civil rights action
against 11 private parties, including the Mount Airy casino

, in the United States7

District Court for the Middle District of Pennsylvania

, challenging his exclusion

from the Mount Airy casino

. Collazo v. Mount Airy No. 1, LLC , 723 F . App’x 147

(3d Cir. 2018). The matter was referred to a Magistrate Judge who recomm ended
that the complaint be dismissed for failure to state a claim, in part, because
“Collazo’s challenges to the Gaming Act were precluded under the doctrines of res
judicata and collateral estoppel.” Id. at 150. The District Court adopted the
Magistrate Judge’s Report and Recommendation and dismissed the complaint.

On appeal, t he United States Court of Appeals for the Third Circuit
agreed that Collazo’s complaint failed to state a claim on which relief could be
granted. The Circuit Court concluded that Collazo’s constitutional and statutory
challenges to the casino’s decision to exclude him under Section 1515 of the Gaming

Act were barred by the doctrine of res judicata because this Court had addressed the

issu e in Collazo v. Mount Airy #1, LLC

. Collazo lacked standing to challenge the
Gaming Board ’s enforcement of Section 1514 of the Gaming Act because he had

not been excluded from the casino under Section 1514

.

The doctrine of c ollateral estoppel bars litigation over an issue where

there has been a prior suit in which (1) the issue has been decided, (2) that issue was

necessary to a judgment on the merits, (3) the party against whom collateral estoppel
is invoked was a party to the prior suit, and (4) that party had a full and fair
opportunity to litigate the issue in question. Robinson , 192 A.3d at 1232. All criteria

are satisfied here.

In the prior state and federal litigation

, Collazo was a party and asserted

that a licensed casino cannot e xclude a n individual from its premises without the
review and approval of the Gaming Board under Section 1514 of the Gaming Act.

H ere, Collazo is again a party and asserts this same claim, albeit a gainst the Gaming8

Board, not against casinos , as i n the prior actions

. However, the issue is the same,

i.e. , whether a casino’s exclusion of certain persons from its facility requires the
prior review and approval of the Gaming Board under Section 1514 of the Gaming

Act. Collazo has had full and fair opportun it ies to litigate that question

, and he
cannot relitigate this issue again before this Court in this proceeding

. 9

W e hold that Collazo is collaterally estopped from relitigating the
question of whether a gaming casino can bar an individual from it s facil ity under

S ection 151 5 of the Gaming Act w ithout approval of the Gaming Board under

Section 151 4 of the Gaming Act. Accordingly, we grant the Gaming Board ’s
application for summary relief and dismiss Collazo’s petition for review.

_____________________________________ MARY HANNAH LEAVITT, President Judge

J udge Crompton did not participate in the decision in this case.

9 Because collateral estoppel bars Collazo’s claim, we need no t address the applicability of the
doctrine of res judicata

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ruben M. Collazo

, : Petitioner :

:

v. : No. 1 3 M.D. 20 20

: Pennsylvania Gaming Control Board

, : Respondent :

O R D E R

AND NOW, this 29 th day of December , 2020, the Application for
Summary Relief filed by the Pennsylvania Gaming Control Board is GRANTED

, and the Petition for Review filed by Ruben M. Collazo is DISMISSED.

_____________________________________ MARY HANNAH LEAVITT, President Judge