Opinion
No. 145 EM 2015
10-31-2017
CHESTER DOWNS AND MARINA LLC d/b/a Harrah's of Philadelphia, Petitioner v. PENNSYLVANIA DEPARTMENT OF REVENUE and Eileen McNulty, in Her Official Capacity as Secretary of the Pennsylvania Department of Revenue, Respondents
ORDER
PER CURIAM.
AND NOW, this 31st of October, 2017, the Joint Application for Relief is GRANTED.
It is noted that this Court's stay of Mount Airy #1, LLC v. Department of Revenue, 154 A.3d 268 (Pa. 2016), by its terms was in effect only until May 26, 2017, and has since expired.
Justice Wecht files a dissenting statement in which Justice Donohue joins.
Justice Dougherty notes his dissent.
JUSTICE WECHT, dissenting.
I disagree respectfully with the learned Majority's decision to suspend the filing schedule in this matter for a fifth time.1 There is no compelling reason to delay this case further. I would deny the parties' Joint Application, and I would order Chester Downs to file an amended complaint within 30 days.
In its 2015 Application for Relief, Chester Downs challenged the constitutionality of the same Gaming Act provisions that we later held unconstitutional in Mount Airy #1, LLC v. Pennsylvania Department of Revenue, 154 A.3d 268 (Pa. 2016).2 As the Court notes in today's Order, the stay in Mount Airy expired on May 26, 2017. Our Mount Airy decision having finally gone into effect a full five months ago, and the Department of Revenue having stopped collecting the local share tax, the constitutional challenges that Chester Downs pleaded in its initial complaint are moot.
Why, then, is this case still pending? It seems that the parties are hoping to leave this matter open until the General Assembly enacts a tax scheme to replace the one that we struck down in Mount Airy. Indeed, in an earlier application seeking a "stay," Chester Downs and the Department of Revenue asked us to suspend the filing schedule "in order to afford the parties time to respond to any action the General Assembly might take before then to remedy the unconstitutional provisions of the Gaming Act." See Joint Application for Relief, 12/5/2016, at 3 (emphasis added).
The mere possibility that new legislation may be forthcoming is not a compelling reason to delay this litigation. The vicissitudes of the political branches often affect or lead to proceedings in the judicial branch, but those vicissitudes develop and exist in a parallel universe. As a general principle, the judiciary should not allow litigants to keep cases open and pending on a courthouse shelf as placeholders for unknown constitutional challenges that may or may not materialize in the future.
Because it has yet to articulate a justiciable legal challenge that falls within our Court's original jurisdiction, Chester Downs should either file an amended complaint (perhaps challenging the constitutionality of some other Gaming Act provision) or discontinue this litigation.
Justice Donohue joins this dissenting statement.