Opinion
No. 2389 C.D. 2011 No. 459 C.D. 2012
04-18-2013
Eastern Pennsylvania Citizens Against Gambling, James D. Schneller, Petitioners v. Pennsylvania Gaming Control Board, Respondent
OPINION NOT REPORTED MEMORANDUM OPINION
In these consolidated pro se petitions for review, James D. Schneller and Eastern Pennsylvania Citizens Against Gambling (collectively, "Schneller") challenge various orders of the Pennsylvania Gaming Control Board (Board) pertaining to Valley Forge Convention Center Partners, L.P.'s (Valley Forge) operation of a Category 3 gaming facility., In addition to Schneller's petitions, various applications for relief are before us, including the Board's motion to quash the petition filed at 2389 C.D. 2011 based upon Schneller's failure to exhaust administrative remedies and Valley Forge's motions seeking to quash the petition filed at 459 C.D. 2012, as well as sanctions for pursuing an appeal deemed to be frivolous.
See Section 1305 of the Pennsylvania Race Horse Development and Gaming Act (Act), as amended, 4 Pa. C.S. § 1305 (pertaining to Category 3 slot machine licenses).
According to the petition for review (PFR) filed in 459 C.D. 2012, Schneller is the founder of Eastern Pennsylvania Citizens Against Gambling, which he describes as a "community organization" that is "opposed to the infusion of gambling into Pennsylvania communities and who maintain that state enablement and state promulgation of such infusion, and many elements of the ongoing implementation of same, are unconstitutional and, in many instances, express, inflictive, error, abuse of discretion, error and misapplication of law, and misperception or misweighting [sic] of fact." PFR, ¶ 2.
We need not review the entire procedural history behind these petitions to address the matters presently before the court. Suffice it to say, Mr. Schneller has been doggedly (and at times indiscriminately) litigious in his efforts to oppose the advancement of gaming in the Commonwealth, filing a multitude of petitions, appeals and all manner of challenges to the decisions of the Board, this court and our Supreme Court.
Docketed at 2389 C.D. 2011 is Schneller's petition for review from the Board's denial of his petition to intervene in Valley Forge's petition for approval of a revised plan for controlling access to its gaming floor. See Board's Supplemental Reproduced Record (S.R.R.) at 4b; see also Section 1305(a) of the Pennsylvania Race Horse Development and Gaming Act (Act), as amended, 4 Pa. C.S. § 1305(a) (grant of license premised on express condition that an individual may not enter the gaming area of a Category 3 licensee if the individual is not a registered overnight guest of the resort hotel or a patron of one of the resort hotel's amenities). Schneller sought to intervene in the proceedings involving Valley Forge's access plan two days before the scheduled hearing. Because the petition was untimely under the Board's regulation governing intervention, the Board's Director of Hearings and Appeals denied the petition. Schneller then filed a petition for review following the Board's final order approving the plan on December 29, 2011, challenging both the denial of intervention and the merits of the Board's approval of an access plan.
The Board's regulation provides, in pertinent part: "Petitions to intervene may be filed at any time following the filing of an application, petition, complaint or other document seeking Board action, but no later than 30 days prior to the date set for a hearing unless, in extraordinary circumstances for good cause shown, the Board authorizes a later filing." 58 Pa. Code § 493a.12(d). The right to intervene in a proceeding before the Board or a presiding officer is within the sole discretion of the Board. Id. at § 493.13(a).
This court's Memorandum and Order of January 24, 2012 (No. 2389 C.D. 2011) addressing the Board's motion to quash and dismiss Schneller's petition for review fully describes the procedural history leading to the instant petition for review. For our purposes, it is sufficient to note that because the Board granted reconsideration following its initial approval of an access plan, this court granted Schneller's request to treat his petition for review from the Board's initial order as a petition for review from the final order entered on December 29, 2011. Id., Memorandum at 3. We also opined that the issue on appeal was limited to whether intervention was properly denied. Id. at 2. See also Order dated September 7, 2012 (Nos. 2389 C.D. 2011, 459 C.D. 2012).
The Board, joined by Valley Forge, has moved to quash and/or dismiss the appeal on the ground that Schneller failed to exhaust his administrative remedies before the Board. According to the Board, Section 35.20 of the Administrative Code, 1 Pa. Code § 35.20, required Schneller to appeal the denial of his petition to intervene to the Board prior to appealing to this court. Section 35.20 provides: "Actions taken by a subordinate officer under authority delegated to the agency head may be appealed to the agency head by filing a petition within 10 days after service of notice of the action." After reviewing the regulatory procedure adopted by the Board, we agree with the Board's construction of its procedural rules.
The court initially denied this motion in its Memorandum and Order dated January 24, 2012. However, the Board's motion for reconsideration was granted; the motion was reinstated and directed to be listed with the merits. See Order dated April 13, 2012 (2389 C.D. 2011).
"Agency head" is defined as: "The secretary of a department, a quorum of an authority or departmental administrative board or commission or independent board or commission, or another officer or group of officers whose action with respect to a matter pending before the agency exhausts opportunity for administrative review within the agency and constitutes the action of the administrative agency for the purposes of Pa. Cont. art. V, § 9." 1 Pa. Code § 31.3.
The Board has "general and sole regulatory authority over the conduct of gaming or related activities," including the discretion to issue, approve, condition and deny slot machine licenses. Section 1202(a), (b)(12) of the Act, as amended, 4 Pa. C.S. § 1202(a), (b)(12). To carry out the administration of its duties, the Board has adopted rules of practice and procedure, which supplement the general rules of administrative practice and procedure. 4 Pa. C.S. § 1202(30); 58 Pa. Code § 491a.1. Pursuant to its regulations, the Board is authorized to delegate its authority to perform any of its functions to one of its members or to Board staff. 58 Pa. Code § 403a.6. Accordingly, the Board established the Office of Hearings and Appeals (OHA), and directed that, generally, all matters other than licensing hearings under 58 Pa. Code § 441a.7 (not applicable here) are assigned to the OHA. 58 Pa. Code § 491.8. In addition, the Board authorized presiding officers to conduct hearings and dispose of procedural matters. Id. at § 491a.7. Pursuant to Section 1201(f) of the Act, "[a]ny action, including but not limited to, the approval, issuance, denial or conditioning of any license by the board under this part or the making of any order or the ratification of any permissible act done or order made by one or more of the members, shall require a qualified majority vote consisting of at least one gubernatorial appointee and the four legislative appointees." 4 Pa. C.S. § 1201(f). Reading this regulatory scheme in conjunction with Section 35.20 of the Administrative Code reveals that Schneller was indeed required to appeal the Director's order to the Board.
Schneller does not argue that he timely appealed the Director's order to the Board and the Certified Record Index filed by the Board pursuant to Rule of Appellate Procedure 1952(b) does not demonstrate that any such appeal was taken. Thus, because Schneller's petition was denied only by the Director of OHA, and not by a "qualified majority vote" of the Board, Schneller was required to seek review by the Board prior to petitioning for review in this court. Accordingly, Schneller's failure to pursue a timely appeal to the Board precludes his ability to seek review in this court. See, e.g., Citizens Concerned about Taxes v. Dep't of Educ., 739 A.2d 1129 (Pa. Cmwlth. 1999). Therefore, we grant the Board's motion and quash the petition for review docketed at 2389 C.D. 2011.
Had we not dismissed on this basis, we would have concluded that the Board did not abuse its discretion in denying Schneller the right to intervene. Schneller's petition was not timely filed and he has not articulated a cognizable interest in his appeal papers that is "substantial, direct and immediate." See 58 Pa. Code § 493a.12. Schneller has asserted nothing more than general averments of speculative harm to the comfort, health, safety, and morals of the community, its teenagers and the environment and on the "local religious effort," and that, the "local region and municipalities stand to lose considerable tax revenue from gambling infusion including from money redirected to table games from outside businesses . . . ." Amended brief at 33 and 31, respectively. These assertions of harm are neither direct nor immediate and do not allege any personal interest or harm that surpasses the common interest of all citizens. See generally Citizens Against Gambling Subsidies, Inc. v. Pa. Gaming Control Bd., 591 Pa. 312, 318-19, 916 A.3d 624, 628 (2007); Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 281 (1975); Tacony Civic Ass'n v. Pa. Liquor Control Bd., 668 A.2d 584, 589 (Pa. Cmwlth. 1995). Pursuing litigation with such legally insufficient assertions of interest and aggrievement after being advised that they are inadequate, see Schneller v. Pennsylvania Liquor Control Board, Pa. Cmwlth. No. 1853 C.D. 2010 (memorandum opinion filed October 26, 2011) (affirming denial of petition to intervene based upon insufficient assertions of direct and substantial harm); Schneller v. Pennsylvania Liquor Control Board, Pa. Cmwlth. No. 2577 C.D. 2010 (memorandum opinion filed September 13, 2011) (affirming denial of petition to intervene based upon insufficient assertions of direct and substantial harm), is seriously frowned upon.
With respect to the petition for review docketed at 459 C.D. 2012, we note that Schneller sought to intervene in Valley Forge's petition for approval of its gaming floor plan. The Board approved Valley Forge's floor plan with conditions on February 9, 2012. The next day, February 10, the Board denied Schneller's petition to intervene, stating:
[S]chneller's Petition . . . reveals nothing even resembling a coherent argument for standing to intervene [in the floor plan petition]. Schneller and his alleged organization are not in a unique position such that standing to appeal should be conferred. Rather, Schneller's assertions of harm express general concerns for the welfare of the community, are purely speculative in nature, and are otherwise insufficient to show that Schneller would be directly and substantially harmed by anything related to Valley Forge's gaming floor plan. In fact, the argument that the manner in which Valley Forge arranges its gaming floor will have any affect [sic] on the surrounding community is patently absurd.Board's Adjudication and Order (PGCB Docket No. 2537-2012, filed February 10, 2012); S.R.R. at 171b. Schneller also sought to intervene in Valley Forge's petition for approval of a table games operational certificate, which it filed in November 2011. In December, the Board announced on its website that it would conduct a public hearing on the petition on January 11, 2012. Schneller filed his petition to intervene on January 6. Because the petition was filed five days before the hearing, the Director of OHA denied the petition as untimely under 58 Pa. Code § 493a.12(d) (requiring requests to intervene to be filed no later than thirty days before hearing); Schneller appealed. The Board granted Valley Forge's petition with conditions on February 10, 2012. In a separate adjudication and order dated February 10, the Board addressed Schneller's appeal from OHA's order denying his petition to intervene. The Board concluded that several grounds existed for dismissing the petition: Schneller improperly joined three dissimilar matters into one action (in violation of 1 Pa. Code § 35.11); the petition to intervene in the certification for table games was untimely under the Board's regulations; and Schneller lacked standing to intervene in the SugarHouse proceedings. Schneller appealed and the matter was eventually docketed at 459 C.D. 2012.
In his appeal papers, Schneller also sought review of various other Board orders, including those pertaining to its approval of Valley Forge's access plan, its denial of Schneller's petition to intervene in the access plan proceedings, and orders pertaining to the Category 2 license granted to SugarHouse HSP Gaming LP, a completely unrelated licensee. See Supplemental Reproduced Record (S.R.R.) at 139b.
We note that Schneller's appeal docketed at 459 C.D. 2012 originated as a single notice of appeal filed on March 12, 2012, referencing three separate orders of the Board dated and described as: (1) "December 29, 2011, granting petition for approval of access plan;" (2) "February 9, 2012, granting approval of floor plan;" and (3) "February 10, 2012, granting approval of table games certificate." See Notice of Appeal. Schneller then filed a petition for review (PFR) on May 9, 2012, as directed by this Court. In his PFR, Schneller states that the matter arises from petitions filed by Valley Forge seeking approval of its gaming floor access plan, table games operational certificate, and gaming floor plan. See PFR at ¶¶ 3, 31. He then asserts various errors regarding the Board's approval of Valley Forge's access plan. He also contends that the Board's orders are premature because he has been attempting (currently, to no avail) to challenge the grant of the Category 3 license to Valley Forge in the United States Supreme Court. Finally, he raises several exceedingly vague contentions regarding errors associated with the approval of Valley Forge's petitions for approval of its floor plan and table games certificate.
Apparently, Schneller initially lodged his appeal with the Supreme Court, which transferred the matter here.
He also includes various vague challenges to orders entered by the Board in 2011 regarding SugarHouse.
For instance, he contends:
34. In regard to table games and the subsequent floor plan, petitioners objected and now request review to, inter alia, premature action, because the casino has not proven itself, and because of a per se time lag intended by the amendment to the Act, between initial opening and grant of certification of table games, as well as a question of whether table games are intended under the circumstances in any respect, for the duration. Petitioners objected to the ["casino"] flavor of the facility as opposed to resort-associated casino.
. . . .
38. The faults of the access plan and decision to allow table games fell directly into the floor plan logistics. Haste in approval showed tacit approval of a policy of illicit momentum and feasible enablement of fait accompli to affect appeal.PFR at ¶¶ 34, 38.
In his amended brief, Schneller argues, inter alia, that the Board erred in denying him the right to intervene because he meets the requirements for standing and because the regulation requiring a petition to be filed at least thirty days before a hearing is arbitrary. Schneller also contends that his PFR brings the SugarHouse matter properly before the court in this appeal, allowing us to review the various orders entered in relation thereto. We discern no allegations of error in the amended brief regarding the Board's approval of Valley Forge's floor plan or table games certificate.
He seems to suggest that a hearing date may be set less than thirty days in the future. We construe his arguments pertaining to standing and intervention to relate to only the petition for review docketed at 2389 C.D. 2011 because he did not appeal from the orders denying him intervention in the floor plan or table game proceedings.
In addition to filing responsive briefs, Valley Forge has filed an application for special relief seeking to quash Schneller's PFR, contending that Schneller has improperly sought review of multiple orders in one appeal, any issues regarding the Board's approval of its access plan on December 29, 2011, are time-barred and that the PFR, as it relates to its floor plan and table games certificate is moot because Schneller has failed to raise any reviewable errors. Valley Forge also contends that there is no merit to the allegation that the referenced orders were "premature" because the Pennsylvania Supreme Court affirmed its license in 2009 and that Court's dockets indicate that the matter is "closed." Valley Forge also seeks the imposition of sanctions against Schneller, contending that his appeal, which challenges four separate orders of the Board, fails to assert a single reviewable error, provides no basis for reversal, and is frivolous as a matter of law. We agree the PFR must be quashed, albeit on different grounds than that asserted by Valley Forge.
Specifically, Valley Forge seeks counsel fees in the amount of $5,000. In requesting sanctions, Valley Forge details the numerous challenges that Schneller has asserted before the Board, this court, our Supreme Court and the United States Supreme Court, many of which were dismissed for failure to demonstrate the requisite interest needed to obtain standing. Valley Forge asserts: "Enjoining Schneller from filing any further petitions with this Court pertaining to the licensure or gaming operations of Valley Forge and directing the Court's administrative personnel not to accept any such petition from Schneller for filing would bring an end to Schneller's three year parade of frivolous petitions, motions and appeals seeking to undo or reopen for further review the License Award. Indeed, the U.S. Supreme Court even ordered similar sanctions against Schneller in Schneller v. Cortes, No. 08-9797." Intervenor's Application for Special Relief in the Nature of a Motion for Imposition of Sanctions upon Petitioner for Initiating a Frivolous Appeal at Docket No. 459 C.D. 2012, at ¶ 23. Attached to the application is a document, which appears to be the docket for Schneller's petition for a writ of certiorari in the United States Supreme Court in an election matter, docketed at No. 08-9797. The docket reflects an order stating that due to Schneller's repeated abuse of the Court's process, the Court's Clerk is precluded from accepting any further petitions unless Schneller pays the requisite docketing fee and submits the petition in compliance with the Court's procedural rules.
As demonstrated by the summary of the PFR and amended brief set forth above, Schneller has not preserved any issues for appellate review in 459 C.D. 2012. Disregarding his appeal from the denial of his petition to intervene in Valley Forge's access plan (docketed at 2389 C.D. 2011), the instant PFR purporting to challenge the Board's December 29, 2011 approval of an access plan is time-barred, depriving this court of jurisdiction over the matter. See Pa. R.A.P. Rule 1512(a) (providing for 30 day appeal period). Accordingly, even if the issue of standing had been preserved on appeal, we would lack jurisdiction to address it. Similarly, any contention pertaining to the license granted to SugarHouse is not subject to our review. Not only did Schneller fail to identify an order pertaining to SugarHouse in his initial notice of appeal, but even if he had done so, his challenge is untimely and, therefore, time-barred as well. Id.
We agree with Valley Forge that "the practice of filing one appeal from multiple orders is strongly disapproved and in the future, the Court will quash single appeals from multiple orders unless otherwise dictated by compelling circumstances." Mikkilineni v. Amwest Surety Ins. Co., 919 A.2d 306, 311 (Pa. Cmwlth. 2007) (internal quotations and citation omitted). The Board took note of this procedural impropriety as well, concluding that it alone warranted a denial of his appeal. We caution Schneller to avoid this practice in future filings with this court; otherwise, he may find that his appeal is quashed sua sponte.
Finally, even giving Schneller's PFR the most liberal and generous construction possible regarding the approval of Valley Forge's floor plan and table games certificate, he has waived his issues by virtue of his failure to address them in his appellate brief. See Purple Orchid, Inc. v. Pa. State Police, 572 Pa. 171, 177, 813 A.2d 801, 804 (2002). Accordingly, his PFR is quashed.
We do note, however, that there is simply no merit to the contention that these decisions were premature due to Schneller's on-going attempts to appeal the grant of a Category 3 license to Valley Forge. Our Supreme Court affirmed the grant of the license in 2011. See Greenwood Gaming & Entm't, Inc. v. Pa. Gaming Control Bd., 609 Pa. 368, 15 A.3d 884 (2011). As the Board notes, the Supreme Court's docket for the matter indicates that it is "closed." Schneller has never achieved party status and by his own admission, he has been unsuccessful in perfecting an appeal in the United States Supreme Court. Therefore, for all intents and purposes, the licensing decision is final.
As to Valley Forge's request for sanctions, including counsel fees and an order precluding our Clerk of Court from accepting further filings from Schneller, we note that while we are sympathetic to these requests, we decline to grant them at this time. See Watkins v. Unemployment Comp. Bd. of Review, 689 A.2d 1019, 1022 (Pa. Cmwlth. 1997) (noting that an award of counsel fees for a frivolous appeal is discretionary). Although we do not doubt Schneller's sincere concern for the impact gaming may have on Pennsylvania's communities, Schneller's repeated filings tend to demonstrate an indiscriminate and careless attitude towards the judicial system in that his papers are filed in violation of procedural rules and in contravention of guidance (if not actual admonishment) provided in earlier decisions of both administrative bodies and the appellate courts. In addition, his papers are not tailored to the issue at hand, refer to irrelevant and extraneous matters, and are rambling and unfocused, requiring opposing parties and decision-makers to tease out, if possible, any recognizable legal issue or argument. Therefore, we take this opportunity to again caution Schneller to be more prudent, thoughtful and procedurally competent in his litigious efforts; otherwise, his carelessness will subject him to an award of counsel fees in the future.
Based on the foregoing, Schneller's petitions for review are quashed. ORDER
In connection therewith, we deny Valley Forge's (Intervenor's) Application for Relief in the Nature of a Motion to Quash and Dismiss the PFR docketed at 459 C.D. 2012, as well as Valley Forge's Application for Special Relief in the Nature of a Motion for Imposition of Sanctions. We further deny the Board's Motion to Strike Petitioners' Amended Brief and Quash and Dismiss Petitioners' Petitions for Review as moot. Finally, we deny Petitioners' Motion to Strike Answer Briefs of Respondents as moot. --------
AND NOW, this 18th day of April, 2013, Respondent's Motion to Quash and Dismiss Petitioners' Petition for Review docketed at 2389 C.D. 2011 is granted and the Petition for Review is quashed. The Petitioners' Petition for Review docketed at 459 C.D. 2012 is also quashed.
Further, Intervenor's Application for Relief in the Nature of a Motion to Quash and Dismiss the Petition for Review Docketed at 459 C.D. 2012 along with its Application for Special Relief in the Nature of a Motion for Sanctions upon Petitioner for Initiating a Frivolous Appeal at Docket No. 459 C.D. 2012 are denied.
And further, the Motion of Respondent to Strike Petitioners' Amended Brief and Quash and Dismiss Petitioners' Petitions for Review and the Petitioners' Motion to Strike Answer Briefs of Respondents are denied as moot.