### [J-133-2016and J-134-2016] [MO:

### Todd] IN THESUPREME COURT OF 

### PENNSYLVANIA EASTERN DISTRICT
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: November7, 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 intheCity of the First

: Class, Philadelphia, datedJune 23, 

### PENNSYLVANIA GAMINGCONTROL : 2016 BOARD,

: 

### SUBMITTED: November7, 2016 

### Respondent STADIUM CASINO, LLC, 

### Intervenor
CONCURRING OPINION


### JUSTICE BAER DECIDED: 

### June20,2017I join the majority opinion in 

### substantial part, but I 

### write separately to 

### distance myselffrom my 

### colleagues' definitionof 

### "financial interest" for purposes of Section 1330 of the 

### Pennsylvania Race Horse 

### Development and Gaming Act ("Gaming Act"), which prohibits a "slot 

### machine licensee, its affiliate, intermediary, 

### subsidiary or holding company" from 

### "possess[ing] an 

### ownership or 

### financial interest that is 

### greater than 

### 33.3% of 

### another slot machine licensee" or 

### other related entities. 4 Pa.C.S. § 1330.1



### 14 Pa.C.S. § 1330, entitled "Multiple slotmachine licenseprohibition," provides infull: 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 

### machinelicensee orperson eligible to

### applyfor a

### Category 1 license, its 

### affiliate, intermediary, subsidiary or holding company. The board shall

### approve the

### terms and 

### conditions of any 

### divestiture under this section. Under no 

### circumstances shall any such 

### divestiture be 

### approved bythe board if the 

### compensation for the 

### divested interest in a person eligible to applyfor a 

### Category 1 

### license exceedsthe 

### greater of the original cost of the interest, the book value of the interest or an 

### independently assessed value of the interest one month priorto the

### effectivedateof this part and, in the case of a person eligible to apply for a 

### Category 1 license, unless the person acquiring the 

### divested interest is required to 

### continue conducting live racing at the location 

### where live racing is 

### currently being 

### conducted in 

### accordance with section 1303 (relating to 

### additional Category 1 slot machine license 

### requirements) and be 

### approved for a 

### Category 1 slot machine license. No such slot 

### machine license applicant shall be issued a 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 orperson eligible to

### applyfor a

### Category 1 license, its 

### affiliate, intermediary, subsidiary or holding company.



### [J-133-2016and

### J-134-2016] [MO:Todd] - 2Unlike the 

### Majority Opinion, I view "financial interest" broadly to 

### encompass ownership interests. See Maj. Op. at35 n.31. As the Majority and the parties have observed, "financial interest" is not 

### defined in Section 1330. 

### The term, however, is 

### defined in 

### Sections 1201 and 1512. 

### While I agree that the 

### definitions in Section 1201 and 1512 are limited to 

### those specific sections, I find 

### guidance in the 

### definitions which 

### substantially overlap with each 

### other and conformto a 

### common understanding ofthe term "financial interest." Section 1201 

### provides various restrictions on 

### those who may serve on the Gaming Control Board, including limiting a board 

### member's "financial interest" in an 

### applicant or licensed facility. It 

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

### ownership, property, leasehold or 

### other beneficial interest in an entity." 4 Pa.C.S. § 1201(n).2 It 

### further

2 4 Pa.C.S. § 1201, 

### entitled "Pennsylvania Gaming Control Board 

### established," provides in 

### relevant part:



### (continued...)(n) Definitions. -As used in this section, thefollowing 

### words and 

### phrases shall have the 

### meanings given to them in this 

### subsection: "Financial interest." An ownership, property, leasehold or other beneficial interest in an entity. The term shall not 

### include an 

### interestwhich is held or

### deemed to be held in any ofthe

### following: (1) 

### Securities that are held in a pension plan, 

### profit-sharing plan, 

### individual retirement account, tax-sheltered annuity, a plan 

### established pursuant to section 457 of the Internal Revenue Code of 1986 (Public Law99-514, 26 U.S.C. § 1 et seq.), or any 

### successor provision, deferred compensation plan 

### whether qualified or not 

### qualified under the Internal Revenue Code of 1986, orany

### successor provision,or 

### other retirement plan that: (i) is notself-directed bythe individual; and



### [J-133-2016and

### J-134-2016] [MO:Todd] - 3

### explains that an 

### "ownership interest," 

### for purposes of the 

### term's inclusion in 

### financial interest, encompasses "[o]wning or holding, or being 

### deemed to hold, 

### debt or 

### equity securities or

### other ownership interest or profit interest." Id. 

### The subsection additionally excludes from the term 

### "financial interest" three categories of passive holdings, including pension plans and 

### individual retirement accounts, Section 529 tuition plans, and mutual 

### fundswhich are notself

### -directed. Notably,the Board 

### adopted thisdefinition nearlyverbatim in its regulation relevantto the Board's 

### operations and 

### organization. 58 Pa. Code § 

### 403a.1. Similarly, Section 1512 limits certain 

### government-affiliated individuals from having a 

### financial interest in 

### licensees or certain related entities. The section 

### defines "financial interest" in 

### very similar terms to 

### Section 1201's definition.3 As in Section (...

### continued)(ii) is 

### advised by an 

### independentinvestmentadviserwho has sole 

### authority to make 

### investment decisions with 

### respect to 

### contributions made bythe individual to 

### theseplans. (2) A tuition 

### account plan 

### organized and 

### operated pursuant to section 529 of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 529) 

### that is not self

### -directed bythe individual. (3) A mutual fund 

### where the 

### interest owned by the mutual fund in a 

### licensed entity does not 

### constitute a 

### controlling interestas

### defined inthis part. 

### "Ownership interest." Owning orholding, orbeing deemed to hold, 

### debt or 

### equity securities or 

### other ownership interest or profit interest.

3 4 Pa.C.S. § 1512(b), entitled 

### "Financial and 

### employment interests," defines "financial interest"for purposes ofthesection as

### follows: "Financial interest." Owning or holding, or being deemed to hold, 

### debt or 

### equity securities or 

### other ownership interest or 

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

### J-134-2016] [MO:Todd] - 41201, 

### financial interest for purposes of Section 1512 

### includes "[o]wning or holding, or being 

### deemed to hold, 

### debt or 

### equity securities or 

### other ownership interest or profits
(...

### continued)profitsinterest. A

### financial interest shall not include anydebt or 

### equity security, or 

### other ownership interest or profits interest, which is held or 

### deemed to be held in any of the 

### following: (1) A blind 

### trust over which the executive-level public employee, public official, party officer or 

### immediate family memberthereof may not 

### exercise any managerial control or receive income during the tenure of office and the period under subsection (a). 

### The provisions of this paragraph shall apply only to blind 

### trusts established prior to the 

### effective date ofthis paragraph. (2) 

### Securities that are held in a pension plan, 

### profit-sharing plan, 

### individual retirement account, tax-sheltered annuity, a plan 

### established pursuant to section 457 of the Internal Revenue Code of 1986 

### (Public Law 99-514, 26 U.S.C. § 1 et seq.) or any 

### successor provision deferred compensation plan 

### whether qualified or not 

### qualified under the Internal Revenue Code of 1986 or any

### successor provision or 

### other retirement plan that: (i) is notself-directed bythe individual; and (ii) is 

### advised by an 

### independentinvestmentadviserwho has sole 

### authority to make 

### investment decisions with 

### respect to 

### contributions made bythe individual to 

### theseplans. (3) A tuition 

### account plan 

### organized and 

### operated pursuant to section 529 of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 529)that is not self

### -directed bythe individual. (4) A mutual fund 

### where the 

### interest owned by the mutual fund in a 

### licensed entity does not 

### constitute a 

### controlling interestas

### defined inthis part.


### [J-133-2016and

### J-134-2016] [MO:Todd] - 5interest," and

### excludesthe samethree 

### categories of passive holdings. In 

### additiontothe 

### exclusions allowed for Board Members, Section 1512 

### provides that the various 

### government-affiliated individuals may also hold 

### interest in assets held in a blind trust. The 

### definition of

### financial interest in 

### Section 1512 does not 

### specifically include Section 1201's incorporation of 

### "property, leasehold or 

### other beneficial interest in an entity." 4 Pa.C.S. § 1512 

### "Financial Interest" (1). 

### Therefore, Section 1201'sdefinition of

### "financial interest" is 

### arguably broader than Section 1512. 

### Understandably, the Gaming Act is more 

### restrictive in regard to the 

### financial holdings of 

### Gaming Control Board 

### members under Section 1201 than the 

### broader category of 

### governmental-affiliated individuals governed by 

### Section 1512. 

### While the General

### Assembly did not

### specifically applyeither of 

### these definitions to Section 1330's prohibition 

### against a licensee or related entity holding a 

### financial interest greater than 

### 33.3% in 

### another slot 

### machine licensee or related entity, I 

### nonetheless find the 

### definitions useful in 

### considering the 

### term's meaning in regard to Section 1330, 

### particularly because the 

### definitions conform to the "common and approved usage" of the term "financial interest" as 

### required by 

### our rules of 

### statutory construction. 1 Pa.C.S. § 1903(a). 

### Under both definitions, "financial interest" includes ownership interest, which is 

### defined to 

### encompass the holding of 

### debt or 

### equity securities and a profit interest. Likewise, the 

### definitions exclude various passive holdingsthat are not

### subjectto the

### direction ofthe 

### individual. To the 

### extentthat the

### definitions of 

### financial interest in 

### Sections 1201 and 1512 differ, I 

### would adopt the more 

### expansive definition for purposes of Section 1330 to 

### satisfy the stated legislative intent "to 

### prevent possible monopolization by 

### establishing reasonable restrictions on the control of 

### multiple licensed gaming facilities in 

### this Commonwealth." 4 Pa.C.S. § 1102(5). Thus, 

### while specified 

### government-affiliated

[J-133-2016and

### J-134-2016] [MO:Todd] - 6

### individuals may hold 

### interest in 

### licensees in a blind

### trust underSection 1512, blind

### trusts should not be 

### excluded from the term 

### "financial interest" for a 

### licensee or 

### other entity governed by 

### Section 1330 as is the case with Gaming Control Board members under Section 1201. 

### Additionally, the term under Section 1330 should also include "property, leasehold or 

### other beneficial interest in an entity" as included in Section 1201, but not 

### specifically stated in Section 1512.

I 

### respectfully reject the 

### suggestion that "financial interest" does not include ownership interest. It is beyond cavil that an 

### owner of a casino has a

### financial interest inthe casino, 

### regardless of how a 

### dictionary defines"financial." Moreover, the General 

### Assembly has 

### repeatedly defined financial interest in the Gaming Act to 

### include ownership interest. In my view, the use of the

### disjunctive "or" in the phrase 

### "ownership
or 

### financial interest" should not be read to require careful 

### delineation of 

### interests as 

### either ownership or 

### financial, which presents the 

### possibility that an "interest" might not fall neatly into 

### either category. Instead, the phrase 

### "ownership or 

### financial interest" should be 

### viewed as a 

### complete phrase, which includes 

### ownership as one form of the 

### broader category of 

### financial interests in 

### order to 

### implement the legislative intent to 

### prevent monopolization. Additionally, I agree with the Board that the 

### ownership or 

### financial interest must be 

### quantifiable in 

### order for the Board to 

### determine if the 33.3 

### percentstatutorythreshold is reached. Viewing the term 

### "ownership or 

### financial interest" broadly, I 

### concur with the Majority Opinion 

### that the term includes loans, which, based upon 

### their structure or 

### significance, may provide the lender with an 

### interest in or claim upon the 

### borrower relevant to the General 

### Assembly's intent to 

### "prevent possible monopolization." 4 Pa.C.S. § 1102. However, I 

### question the 

### Majority's reliance on theterm "debt orequity securities" as used in 4 Pa.C.S. § 1311, as well as 

### Sections 1201 and 1512, to



### [J-133-2016and

### J-134-2016] [MO:Todd] - 7

### encompass loanswithin thephrase "financial interest"when theterm "debt securities" is 

### commonly used to 

### reference bonds rather than loans 

### generally. Additionally, I 

### emphasize Market East's observation that the inclusion of loans in Section 1330's "ownership or 

### financial interest" would not 

### generally relate to large 

### commercial lenders
so long as 

### theyare not a "slot machine licensee, its affiliate, intermediary, 

### subsidiaryor holding 

### company." 4 Pa.C.S. § 1330. 

### While I 

### differ in my 

### view of "ownership or 

### financial interest," I 

### nevertheless join the 

### Majority Opinion's remand for reconsideration of Mr. 

### Manoukian's interest in Stadium Casino L.L.C.,including his 

### interest in Sterling InvestorsTrust.



### [J-133-2016and

### J-134-2016] [MO:Todd] - 8