Appeal from the Order of the Board of Claims in case of Christine T. Irwin, Administratrix of the Estate of Thomas W. Irwin, late of Gallitzin, Cambria County, Pennsylvania, deceased v. Commonwealth of Pennsylvania, Department of Revenue, Bureau of State Lotteries, Docket No. 712, dated February 22 and February 25, 1983.
Mollie A. McCurdy, Deputy Attorney General, with her Randall G. Gale, Deputy Attorney General, Herbert L. Olivieri, Chief, Torts Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for petitioner.
T. Dean Lower, for respondent.
Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.
[ 82 Pa. Commw. Page 267]
The Pennsylvania Department of Revenue, Bureau of State Lotteries (Bureau of Lotteries) has filed a petition for review of a judgment entered against it by the Pennsylvania Board of Claims (board) in favor of the Administratrix of the Estate of Thomas W. Irwin, deceased, in the amount of $7,500 and interest, as counsel fees and for the payment to the estate of one dollar or the delivery of a new lottery ticket.
The board rejected the administratrix's claim for a prize of $10,000 on an assertedly winning lottery ticket and the administratrix has not appealed this action.
On January 11, 1979, the decedent Irwin submitted to the Bureau of Lotteries for payment of a prize of $10,000, a ticket in the 3-of-a-Kind Instant Lottery game. There were exposed on the face of the ticket three aces, which circumstance, if the ticket were valid,
[ 82 Pa. Commw. Page 268]
would entitle the bearer to a $10,000 prize. The Bureau of Lotteries notified Irwin by letter dated January 30, 1979 that the "security control number on your ticket does not correspond with the symbols on your ticket," that there was the "possibility of fraud" and that it would "not entertain payment at this time." Subsequent investigation revealed that the ticket had been altered, that before alteration it showed only two aces and that the purported third ace had been placed over the digit 9.
Irwin denied fraud on his part and demanded payment of the ticket. The Bureau of Lotteries referred the matter to the Pennsylvania State Police. On the complaint signed by a Pennsylvania State Police officer, Irwin was charged with criminal attempt, of theft by deception and of forgery of the lottery ticket. On January 28, 1980, following a trial, Irwin was acquitted of all charges by a Blair County jury. The counsel fees at issue in the instant appeal are those incurred by Irwin in defense of this prosecution.
On January 29, 1980, Irwin commenced a civil lawsuit against the Bureau of Lotteries in trespass and assumpsit, which lawsuit is, so far as we know, still pending ...