The opinion of the court was delivered by: HERMAN
Walter Ruman, a citizen of Ohio, has brought this action against the Pennsylvania Department of Revenue, the Bureau of State Lotteries of the Pennsylvania Department of Revenue, Milton Lopus, the Pennsylvania Secretary of Revenue, and Lynn R. Nelson, Executive Director of the Bureau of State Lotteries for the Pennsylvania Department of Revenue alleging that his winning ticket in the Big Fifty Bonus Lottery No. 3 entitled him to a Winnebago Elandan II motor home worth approximately $ 29,000 and that instead the Defendants offered him a Winnebago Brave motor home with an approximate value of $ 13,000.
An amended complaint was filed on October 27, 1977 and all of the Defendants have moved to dismiss the amended complaint. All briefs having been filed and oral argument having been held, the matter is now ripe for disposition. For the reasons which follow, the motions to dismiss will be granted.
The Bureau of State Lotteries was created by the "State Lottery Law", Act of August 26, 1971, P.L. 351, and the bureau is contained within the Pennsylvania Department of Revenue. The Defendants established a Big Fifty Bonus Lottery No. 3, which was operated and administered by Defendants Lopus and Nelson, with prizes to be paid from the State Lottery Fund. It is averred that this fund, created by Section 12 of the State Lottery Law, is independent of the general funds of the Commonwealth of Pennsylvania. It is further averred that the Defendants, through their agents and servants offered tickets in the Big Fifty Bonus Lottery No. 3 representing pictorially as a prize a Winnebago Elandan II motor home valued at approximately $ 29,000.
Walter Ruman was one of the winners of the Big Fifty Bonus Lottery No. 3. He was informed by agents and servants of the Defendants, Pennsylvania Department of Revenue and Bureau of State Lotteries, Milton Lopus and Lynn K. Nelson, that he would be offered a Winnebago Brave motor home as his prize. The Winnebago Brave is alleged to have a value of approximately $ 13,000. In failing to award the Elandan II motor home, the Defendants are alleged to have breached their contract with the Plaintiff and to have deprived the Plaintiff of his property without due process of law in violation of the Fourteenth Amendment to the United States Constitution.
The amended complaint is divided into four "claims". The first claim is a diversity action in assumpsit with jurisdiction based upon 28 U.S.C. § 1332, the second claim is brought pursuant to 42 U.S.C. § 1983 with jurisdiction based upon 28 U.S.C. § 1343, the third claim asks for an injunction and seeks to enjoin the Defendants from paying into the State Lottery Fund or otherwise making unavailable to the Plaintiff an amount of money sufficient to satisfy his claim and claims of other potential class members pending the outcome of this litigation. The complaint further alleges in claim four that the Defendants violated the Pennsylvania Unfair Trade Practice and Consumer Protection Law of November 24, 1976, P.L. 1166, as amended, 73 P.S. § 201-2(4) (vii), (ix) and (xvii). The amended complaint is prefaced by certain class allegations which are based upon diversity of citizenship under 28 U.S.C. § 1332. A class action determination was stayed by an order of Court dated November 22, 1977, pending resolution of the motions to dismiss.
Claim two avers that the Defendants under color of state law have caused Plaintiff to be subjected to a deprivation of his rights to be secure in his property in violation of 42 U.S.C. § 1983 and asks for the same damages as in claim one.
As we stated above, claim three is for an injunction to preserve a fund from which damages could be awarded if found to be warranted.
The fourth claim alleges that the Defendants caused advertisements to appear on the face of Big Fifty Bonus Lottery No. 3 tickets and in other documentary material representing a Winnebago II motor home, and that members of the general public as well as the Plaintiff and members of his putative class were mislead into believing the Elandan II model of motor home would be awarded as a prize in the Big Fifty Bonus Lottery No. 3. The Defendants are alleged to have intended to award to prize winners only a Winnebago Brave motor home of substantially lesser value than the Winnebago Elandan II motor home, and the Defendants are therefore alleged to be in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Plaintiff asks for treble damages on this claim as provided by the statute. Act of December 17, 1968, P.L. 1224, § 9.2 as amended, 73 P.S. § 201-9.2.
The dispute revolves around the fact that the back of the lottery ticket states:
"On the drawing date printed on your ticket a 6-digit number will be drawn. Match the number with one of the numbers on your bonus game ticket and Win the prize shown on the front of the ticket. Claim your prize at any official winner validation center (State Liquor Store). Detach left hand portion of ticket when claiming bonus prizes. Tickets may be eligible for bonus prizes as well as weekly cash prizes.
IMPORTANT: This ticket is valid only for drawing date shown. Prizes must be claimed by dates to be announced. Determination of winners is subject to the rules and regulations of the Pennsylvania Bureau of State Lotteries, Department of Revenue." (emphasis supplied).
The Plaintiff claims the front of the ticket depicts a $ 29,000 Winnebago whereas the Defendants' position is that whether or not the front of the ticket shows the more expensive Winnebago, which they deny, the language on the back of the ticket indicates that "Determination of winners is subject to the rules and regulations of the Pennsylvania Bureau of State Lotteries, Department of Revenue," and the regulations ...