IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CHESTER DOWNS AND MARINA LLC 

D/B/A HARRAH'S OF PHILADELPHIA,

Petitioner

v.

PENNSYLVANIA DEPARTMENT OF 

REVENUE AND EILEEN MCNULTY, IN 

HER OFFICIAL CAPACITY AS 

SECRETARY OF THE PENNSYLVANIA 

DEPARTMENT OF REVENUE,

Respondents

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No. 145 EM 2015

DISSENTING STATEMENT

JUSTICE WECHT FILED: October 31, 2017

I disagree respectfully with the learned Majority’s decision to suspend the filing 

schedule in this matter for a fifth time.

1 There is no compelling reason to delay this case

further. I would deny the parties’ Joint Application, and I would order Chester Downs to 

file an amended complaint within 30 days. 

 1 On March 31, 2016, we granted the parties’ first application for a stay pending 

the disposition of Mount Airy. After the Court dissolved that stay on November 22, 

2016, the parties asked us to reinstate the stay until February 27, 2017. We granted 

that request. The parties then filed a third application for a stay on February 24, 2017, 

asking us to extend our stay until June 26, 2017. Again, we granted the parties’ 

request. On May 24, 2017, the parties filed a fourth request for an extension, this time 

asking us to extend our stay until August 28, 2017. Once again, we extended our stay. 

Finally, on August 25, 2017, the parties filed the application now at issue, asking us to 

extend our stay another six months, until February 26, 2017. 
[145 EM 2015] - 2

In its 2015 Application for Relief, Chester Downs challenged the constitutionality 

of the same Gaming Act provisions that we later held unconstitutional in Mount Airy #1, 

LLC v. Pennsylvania Department of Revenue, 154 A.3d 268 (Pa. 2016).

2

 As the Court 

notes in today’s Order, the stay in Mount Airy expired on May 26, 2017. Our Mount Airy

decision having finally gone into effect a full five months ago, and the Department of 

Revenue having stopped collecting the local share tax, the constitutional challenges that 

Chester Downs pleaded in its initial complaint are moot.

Why, then, is this case still pending? It seems that the parties are hoping to 

leave this matter open until the General Assembly enacts a tax scheme to replace the 

one that we struck down in Mount Airy. Indeed, in an earlier application seeking a 

“stay,” Chester Downs and the Department of Revenue asked us to suspend the filing 

schedule “in order to afford the parties time to respond to any action the General 

Assembly might take before then to remedy the unconstitutional provisions of the 

Gaming Act.” See Joint Application for Relief, 12/5/2016, at 3 (emphasis added).

The mere possibility that new legislation may be forthcoming is not a compelling 

reason to delay this litigation. The vicissitudes of the political branches often affect or 

lead to proceedings in the judicial branch, but those vicissitudes develop and exist in a 

parallel universe. As a general principle, the judiciary should not allow litigants to keep 

cases open and pending on a courthouse shelf as placeholders for unknown 

constitutional challenges that may or may not materialize in the future.

 2 Initially, we stayed our decision in Mount Airy for 120 days, sua sponte, in order 

to give the General Assembly an opportunity to evaluate and pass potential remedial 

legislation. See Mount Airy #1, LLC, 154 A.3d at 280. Two weeks before the scheduled 

expiration of that stay, Senators Joseph Scarnati III, Jake Corman, and Jay Costa filed 

with this Court an application for extraordinary relief, wherein they asked us to extend 

our stay for an additional 120 days. Over my dissent, this Court granted the Senators’ 

request, and issued an order extending the stay in Mount Airy until May 26, 2017. In re 

Amendment to Pa. Race Horse Development & Gaming Act, 164 A.3d 492 (Pa. 2017). 
[145 EM 2015] - 3

Because it has yet to articulate a justiciable legal challenge that falls within our 

Court’s original jurisdiction, Chester Downs should either file an amended complaint 

(perhaps challenging the constitutionality of some other Gaming Act provision) or 

discontinue this litigation.

Justice Donohue joins this dissenting statement.