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YOUNG J. LEE v. COMMONWEALTH PENNSYLVANIA (05/10/85)

decided: May 10, 1985.

YOUNG J. LEE, INDIVIDUALLY AND IN HER CAPACITY AS A SHAREHOLDER OF HITE'S FRIENDLY DRUG STORE NO. 5, INC., ET AL., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF STATE LOTTERIES, DEPARTMENT OF REVENUE, RESPONDENT



Original jurisdiction in case of Young J. Lee, Inc., t/a Hite's Friendly Drug Store v. Commonwealth of Pennsylvania, Bureau of State Lotteries, Department of Revenue.

COUNSEL

Samuel P. Kamin, for petitioner.

Nancy A. Patterson, Assistant Counsel, with her, George T. Bell, Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., MacPhail, Doyle, Barry and Colins. Opinion by Judge Barry. Judge Williams, Jr. did not participate in the decision in this case. Judge MacPhail dissents. Dissenting Opinion by Judge Doyle.

Author: Barry

[ 89 Pa. Commw. Page 215]

This case comes before us following a Pennsylvania Supreme Court order reversing our grant of a supersedeas and remanding the case for further proceedings. The question to be considered on remand is whether the revocation of a lottery sales agent's license, issued to Young J. Lee, Inc., t/a Hite's Friendly Drug Store (Petitioner), without a pre-revocation or post-revocation hearing, violates the due process clause of the Fourteenth Amendment of the United States Constitution.

The Petitioner's lottery license was revoked pursuant to Section 7(b) of the State Lottery Law (Law), Act of August 26, 1971, P.L. 351, as amended, 72 P.S. § 3761-7(b) and its accompanying regulation, 61 Pa. Code § 805.17. Section 7(b) of the Law authorizes the Secretary of the Department of Revenue to revoke a lottery license for various reasons including the conviction of a crime involving moral turpitude*fn1 or being found guilty of any fraud or misrepresentation.*fn2

On December 7, 1981 the Petitioner, by its president, Young J. Lee, entered a guilty plea in the Court of Common Pleas of Allegheny County to ten counts of theft by deception.*fn3 When the Bureau of State Lotteries (Bureau) learned of this it sent Petitioner a notice of revocation citing as the reason for its action the guilty plea of Petitioner as well as Petitioner's

[ 89 Pa. Commw. Page 216]

    breach of the terms of the contract between Petitioner and the Bureau. Petitioner requested the Bureau to stay its revocation action pending further review. The Bureau did so and conducted a further review considering facts submitted by Petitioner. The Bureau did not, however, hold a due process hearing. Petitioner's license was then revoked effective July 19, 1982. An appeal to this Court followed and Judge Blatt, in addition to ruling on numerous preliminary motions, granted a stay of the Bureau's order. The Pennsylvania Supreme Court reversed the granting of the stay, but did not reach the due process claim finding that it was not yet ripe for review. Young J. Lee, Inc. v. Department of Revenue, Bureau of State Lotteries, 504 Pa. 367, 474 A.2d 266 (1983). The Supreme Court also determined that Petitioner's appeal was within this Court's appellate jurisdiction and stated:

With respect to the requirement that the legal remedy before the Board of Claims must be inadequate before the Commonwealth Court has jurisdiction, the adequacy of a licensee's remedy in the Board of Claims for revocation of a license for an indefinite term is doubtful. That Board has jurisdiction only of claims arising under "contracts" and then only to award money damages. It has no authority to order the Department to hold a hearing. . . . (Footnote omitted.)

Id. at 378, 474 A.2d at 271. Before considering the constitutional question raised we must respond to the Bureau's contention that Petitioner failed to notify the State Attorney General's Office of its constitutional challenge to a Pennsylvania statute pursuant to Pennsylvania Rule of Appellate Procedure 521(a), which requires such notice in situations where "the Commonwealth or any ...


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