Pennsylvania State Police, Bureau of Liquor Control Enforcement, Appellant
Legion Post 304 Home Association
Argued: April 20, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE JOSEPH M. COSGROVE, Judge, HONORABLE JAMES GARDNER
COLINS, Senior Judge
HANNAH LEAVITT, President Judge
Pennsylvania State Police, Bureau of Liquor Control
Enforcement (State Police) appeal an order of the Court of
Common Pleas of Carbon County (trial court) holding that
Legion Post 304 Home Association (Licensee) conducted games
of small chance and bingo after its licenses expired, in
violation of the Local Option Small Games of Chance
and the Bingo Law. In doing so, the trial court affirmed a
decision of the Liquor Control Board. The trial court also
affirmed the decision of the Board that "Bonanza Bingo,
" which was offered two days a week by Licensee, was a
lawful form of bingo. The trial court remanded the matter to
the Administrative Law Judge (ALJ) to impose penalties on
Licensee for its license violations, and the ALJ imposed a
penalty of $700. The State Police have appealed the trial
court's decision that Licensee's "Bonanza
Bingo" is a lawful form of bingo.
about April 28, 2013, State Police Officer William J.
Rosenstock, incognito, went to Licensee's
premises, where he purchased two Bonanza Bingo tickets. The
bartender explained how to play: "[T]here's a master
sheet which [is] sitting at the bar. You compare your tickets
… to the master sheet … and you win the
corresponding … prizes." Notes of Testimony,
6/5/2014, at 33 (N.T., 6/5/2014, __); Reproduced Record at
43a (R.R. __). Officer Rosenstock played his tickets and left
without winning a prize.
August 26, 2013, Officer Rosenstock returned, this time to
conduct a routine inspection. Officer Rosenstock noted that
Licensee's small games of chance license, which was
displayed on the wall, had expired on April 4, 2013. He also
discovered that Licensee's bingo license expired on
August 20, 2013. Based on information provided by Licensee,
Officer Rosenstock found that Licensee had conducted small
games of chance, including the Bonanza Bingo game, from April
5, 2013, through August 26, 2013.
January 13, 2014, Officer Rosenstock issued Citation No.
13-2097 to Licensee. Count One charged violations of the
Local Option Small Games of Chance Act and the Department of
Revenue's implementing regulation during the period from
April 5, 2013, through August 17, 2013. Count Two charged
violations of the Liquor Code and the Bingo Law for the period
from April 28, 2013, to August 26, 2013.
June 5, 2014, hearing, Officer Rosenstock established the
above-described narrative of the State Police investigation
and citation issued to Licensee. Keith McQuait, commander of
Legion Post 304 Home, then testified for Licensee.
explained that Licensee offers bingo games on Sundays and
Tuesdays. Those who play purchase a "Bonanza Bingo"
card for $1.00 each. The player compares the purchased card
to the master board to determine whether he has a winning
dismissed the State Police citation in its entirety. The ALJ
held that the citation was too poorly drafted to provide
adequate notice and, thus, offended due process. The ALJ
dismissed Count Two for the additional reason that
"Licensee's method of playing bingo, however
untraditional, " was a lawful form of bingo. R.R. 127a.
State Police appealed to the Liquor Control Board, which
reversed the ALJ, in part. The Board concluded that the ALJ
erred in dismissing the entire citation on due process
grounds because Licensee did not raise that issue; it was
error for the ALJ to raise the issue sua sponte.
With respect to Count One, the Board found that Licensee had
violated the Small Games of Chance Act by offering these
games after its license expired. With respect to Count Two,
the Board found that Licensee had violated the Bingo Law by
offering Bonanza Bingo after its bingo license had expired.
Finally, the Board concluded that the definition of the word
"bingo" under the Bingo Law was "intentionally
broad" and, as such, authorized "Bonanza
Bingo." Liquor Control Board Decision, 11/19/2014, at
10. The Liquor Control Board remanded the matter to the ALJ
to impose a penalty on Licensee for conducting games after
its licenses had expired. The State Police requested
reconsideration from the Board, but the request was denied.
the State Police appealed to the trial court, arguing that
the Liquor Control Board erred in holding that "Bonanza
Bingo" did not meet the definition of "bingo"
in Section 3 of the Bingo Law. The trial court held a hearing.
State Police did not offer new evidence; rather, it presented
legal arguments on the meaning of "bingo." Licensee
presented testimony from McQuait, who explained the mechanics
of Bonanza Bingo. A large master board sits at one end of the
bar with the word "Bingo" printed at the top. Below
each letter are five numbers (with one "free" in
the middle) handwritten by the bartender. He writes new
numbers daily, which are chosen by patrons from a deck of
cards and read to the bartender. Throughout the day patrons
can purchase a sealed bingo card for $1.00. Patrons then
compare the numbers on their bingo card to those posted on
the master board. If their bingo card creates a
"bingo" match to the master card, they win a prize.
trial court concluded that Bonanza Bingo met the statutory
definition of "bingo." It rejected the State Police
argument that Bonanza Bingo was more akin to a pull-tab
"strip ticket" than a bingo game. The trial court
affirmed the Liquor Control Board's decision "in
toto[.]" Trial Court op., 12/11/2015, at 14. The
trial court remanded the matter to the ALJ for an
adjudication on penalties against Licensee for conducting
games after its license expired.
State Police appealed the trial court's order to this
Court. This Court quashed the appeal, for the stated reason
that because the trial court had "remanded this matter
for further consideration of appropriate penalties, a matter
which necessarily requires the exercise of the ALJ's
discretion, the notice of appeal is quashed as taken from a
non-final interlocutory order." Order, 2/23/2016, at 2
(Quigley, S.J.); R.R. 277a. On remand, the ALJ issued a
supplemental order imposing a $350 fine for each count for a
total of $700.
receipt of the ALJ's penalty decision, the State Police
appealed to this Court. As it did in its earlier appeal to this
Court, the State Police challenged the trial court's
holding that Bonanza Bingo is a lawful type of bingo. The
State Police contend that the Bingo Act authorizes only
traditional call bingo. Licensee argues otherwise.
26, 2016, this Court ordered the parties to address the issue
of whether the State Police appeal could be heard by this
Court without it first being presented to the Liquor Control
Board. Specifically, the order stated:
[I]t appears that neither party appealed the ALJ's
penalty adjudication to the Board and thereafter to the
[trial court]. Accordingly, the parties shall address in
their principal briefs on the merits whether the ALJ's
March 23, 2016[, ] adjudication is immediately appealable
directly to the Commonwealth Court or must follow the
statutory review process.
Order, 5/26/2016, at 2 (Friedman, S.J.) (internal citation
omitted); R.R. 293a.
begin with the jurisdictional question. The State Police
contend that the trial court's December 11, 2015, order
decided all substantive legal issues and remanded the matter
to the ALJ solely to perform a ministerial act,
i.e., to set penalties. State Police Brief at 17.
The State Police contend that an appeal of the ALJ's
supplemental order to the Board would be burdensome,
fruitless, and not in the interests of judicial economy. The
Liquor Control Board has already decided the question of
whether Bonanza Bingo is "bingo" under the Bingo
Law. In the alternative, the State Police argue that it has a
right of appeal under the Pennsylvania Rules of Appellate
begin with an examination of the statutory review process.
Section 471(b) of the Liquor Code states, in relevant part:
In the event the bureau or the person who was fined or whose
license was suspended or revoked shall feel aggrieved by the
adjudication of the administrative law judge, there shall
be a right to appeal to the board. The appeal shall be based
solely on the record before the administrative law
judge. The board shall only reverse the decision of the
administrative law judge if the administrative law judge
committed an error of law, abused its discretion or if its
decision is not based on substantial evidence. In the event
the bureau or the person who was fined or whose
license was suspended or revoked shall feel aggrieved by
the decision of the board, there shall be a right to appeal
to the court of common pleas in the same manner as
herein provided for appeals from refusals to grant licenses.
47 P.S. §4-471(b) (emphasis added). The trial court
hears the appeal of the Liquor Control Board's decision
de novo; it makes its own findings of fact and
conclusions of law. Pennsylvania State Police, Bureau of
Liquor Control Enforcement v. Capek, 657 A.2d 1352, 1353
n.3 (Pa. Cmwlth. 1995). Accordingly, the trial court can
"sustain, alter, change, modify or amend the Board's