KEYSTONE REDEV. v. GAMING CNTRL BRD

C, filed an answer and new matter objecting to any attempt by Licensee to obtain an extension in order to relocate its casino site from Columbus Boulevard to Center City. See BIE's Answer to Licensee's Extension Pet. at ¶¶ 41-48; R.R. at 369a-70a. BIE further objected to the extension petition pending a full evidentiary hearing before the Board at which Licensee had to present documentation of its efforts to obtain the necessary permits, approvals and funding, or guarantees of funding necessary for construction of the Columbus Boulevard facility. Id. at ¶ 48; R.R. at 370a.

In addition, the Board itself effectively represented the public interest during Licensee's extension proceeding. The Board repeatedly advised Licensee it would only grant an extension for Licensee to build the facility it promised, and build it at the Columbus Boulevard site.

vi.

Further, Keystone's reliance on MEC, Cashdollar and El Rancho Grande which recognize a competitor's standing to represent the public interest, is misplaced. In El Rancho Grande and MEC, the successful intervenors were already licensed competitors in the same area. Here, Keystone is not a slot machine licensee in Pennsylvania. Our decision in Cashdollar is also inapplicable here. Cashdollar involved a different statute granting standing to local community residents who could provide certain information the State Horse Racing Commission was directed to consider in awarding an off-track betting license.

b. Keystone's Interest Not Adequately Represented

For the reasons discussed above, we also reject Keystone's contention that no current party to Licensee's extension proceeding will adequately represent Keystone's interests "as one of five original applicants" for a Category 2 license. As discussed, the Board denied Keystone's application for a license, and that order is now final. Nevertheless, Keystone asserts it is uniquely situated because it alone sought to re-open the licensing proceedings, to "reactivate" its application and to update or supplement it as the Board deems necessary. As such, Keystone argues neither BIE nor any party to the extension proceeding adequately represents its interest.

We disagree. First, following the denial of its application and the award of the only two available Category 2 licenses for the City, Keystone no longer had an interest in a Category 2 license. Citizens Against Gambling Subsidies; Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655 (2005). In addition, Keystone lacks the legal authority under the Act and applicable regulations to petition to re-open the licensing proceedings. In sum, Keystone has no greater interest in Licensee's license than the general public. The Board itself, BIE and OEC adequately represent the public's interest in Licensee's extension proceeding.

c. Keystone Bound by Board's Decision

We also reject Keystone's bootstrap argument that it may be bound by the Board's extension order if the Board determines Licensee abandoned its site-specific license. In the absence of a formal petition by Licensee to relocate, the Board need not accept such a remote occurrence as a basis for intervention.

d. Denial without Hearing

Finally, the Board did not err, abuse its discretion or violate Keystone's due process rights by denying Keystone's petition to intervene without holding a full adversarial hearing on the issue of whether Licensee failed to comply with its license or remains eligible for a license. This is because factual issues regarding Licensee's post-licensing actions or conduct are irrelevant to the issue of whether Keystone met the requirements for intervention in 58 Pa. Code § 493.12(c)(1)-(3), and the operative facts regarding intervention are undisputed.

Where there are no disputed facts regarding a person's standing to intervene, the proceeding on the intervention petition, including briefs and oral argument, provides an adequate opportunity for the parties to be heard for purposes of 2 Pa.C.S. § 504. Independence Blue Cross v. Pa. Ins. Dep't, 802 A.2d 715 (Pa.Cmwlth. 2002) (citing United Healthcare Benefits v. Ins. Comm'r of Pa., 152 Pa.Cmwlth. 549, 620 A.2d 81 (1993)).

Here, the initial licensing proceedings closed in 2006. Keystone is no longer an applicant or competitor for Licensee's license; thus, it has no interest in Licensee's license that could be adversely affected by the Board's decision in the extension proceeding. Because there were no facts in dispute regarding Keystone's standing to intervene, the Board did not violate Keystone's due process rights by failing to hold an evidentiary hearing on its intervention request. Id. Further, the Board acted within its administrative discretion in denying Keystone's petition to intervene after considering the parties written and oral arguments. W. Chester Area Sch. Dist.; Malt Beverages.

Moreover, Keystone is no longer a party to any Board proceeding, including Licensee's extension proceeding. Therefore, the due process protections in 2 Pa.C.S. § 504, which apply to a party in a Commonwealth agency adjudication, do not apply to Keystone. See Callahan (a party to an agency proceeding is entitled to full panoply of due process rights).

B. Extension Petition 1. Keystone's Arguments

Keystone next contends the Board erred, abused its discretion and denied Keystone's due process rights by granting Licensee's extension petition. Keystone first asserts Licensee, by its actions, created its own inability to meet the one-year opening requirement in the former version of 4 Pa.C.S. § 1210(a), applicable here, which provided in pertinent part (with emphasis added):

[A]ll slot machine licensees . . . shall be required to operate and make available for play a minimum of 1,500 machines at any one licensed facility within one year of the issuance by the [B]oard of a slot machine license unless otherwise extended by the board, upon application and for good cause shown, for an additional period not to exceed 24 months.

Keystone asserts the Board erred in finding Licensee established "good cause" for an extension of time to construct a casino because Licensee's reasons for its noncompliance were of its own making. Keystone argues that Section 1210(a) of the Act, by requiring a showing of "good cause" imposes a higher burden of proof on an applicant than required for other Board decisions for which "good cause" is not a statutory requirement. In support, Keystone cites Sun Shipbuilding Dry Dock Co. v. Unemployment Compensation Board of Review, 358 Pa. 224, 56 A.2d 254 (1948), where the Supreme Court reasoned that statutory "good cause" must be determined in each case from the facts of that case in accord with the fundamental purpose of the statute.

Here, Keystone asserts, Licensee was well aware of the potential issues and public opposition when it selected a controversial site. Licensee also obtained Supreme Court orders directing the City to issue the required zoning and building permits, but declined to obtain these permits from the City in a timely manner because that would require Licensee to begin construction. Instead, Licensee ceased its efforts to develop the Columbus Boulevard site and began taking affirmative steps to relocate its casino to an unapproved site.

Keystone argues the time Licensee spent looking at other unapproved sites, nearly nine months out of the 12 months allotted to open the casino, and the affirmative steps Licensee took to negotiate a new casino site, must weigh against its extension request. Licensee's volitional efforts to develop a different site wholly undermine its assertion of good cause for its failure to develop the Columbus Boulevard site.

Keystone further argues the Board erred in concluding Licensee and HSP were similarly situated with regard to their reasons for an extension request. HSP focused exclusively on developing its approved SugarHouse Casino. None of the delays HSP experienced were caused by its efforts to develop other casino sites. HSP also made greater efforts in making use of the office of Special Master to resolve zoning disputes, obtaining the required approvals and beginning construction.

Keystone also maintains the Board did not make adequate findings as to whether Licensee's post-licensing actions were sufficiently similar to HSP's post-licensing actions. As a result, the comparison of the two projects is flawed.

2. Appellees' Response

In response, the Board and Licensee first contend Keystone's failure to attain party status as an intervenor precludes it from appealing the Board's extension order. See In re Barnes Found., 582 Pa. 370, 871 A.2d 792 (2005) (failure to obtain intervenor status foreclosed appellant's ability to appeal trial court's order under Pa.R.A.P. 501); Boerner v. Hazle Twp. Zoning Hearing Bd., 845 A.2d 210 (Pa.Cmwlth. 2004) (where trial court denied objector's untimely petition to intervene in a zoning case, objector lacked standing to appeal the merits of the case); In re Rowan, 763 A.2d 958 (Pa.Cmwlth. 2000) (unsuccessful intervenor has no standing to challenge merits of trial court's order). See also 20 G. RONALD DARLINGTON ET AL., Pa. Appellate Practice, § 501:7 (2009-10 ed.) (emphasis added) ("[I]t behooves an individual or group interested in issues in a matter pending in the Pennsylvania courts or agencies to attain intervener status at the lower level as soon as possible. Obtaining intervention status before an agency involves a demonstration of aggrievement, i.e., having a direct and substantial interest in the agency's adjudication and showing a close causal connection between the agency decision and the asserted injury. The failure to obtain intervener status negates the ability to file an appeal.")

Pa. R.A.P. 501 provides: "Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom."

The Board further argues Keystone, a non-party denied intervention, also lacks the required "direct interest" to appeal the Board's extension order as an "aggrieved person" under Section 702 of the Administrative Agency Law, which provides, "Any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals. . . ." 2 Pa.C.S. § 702. In Citizens Against Gambling Subsidies, the Supreme Court recognized (with emphasis added):

by virtue of Section 702 of the Administrative Agency Law, neither party status nor traditional aggrievement is necessary to challenge actions of an administrative agency. Rather, standing to appeal administrative decisions extends to "persons," including non-parties, who have a "direct interest" in the subject matter, as distinguished from a "direct, immediate and substantial" interest. A direct interest requires a showing that the matter complained of caused harm to the person's interest. Although not the full equivalent of "direct, immediate and substantial," the direct interest requirement retains the function of differentiating material interests that are discrete to some person or limited class of persons from more diffuse ones that are common among the citizenry.

591 Pa. at 319, 916 A.2d at 628 (citations omitted).

3. Analysis

We agree with the Board. First, as discussed above, the Board did not err, abuse its discretion or violate Keystone's due process rights in denying its petition to intervene on the basis that it lacked a direct and immediate interest in Licensee's extension proceeding. Keystone's failure to obtain party status as an intervenor in the extension petition precludes it from appealing under Pa. R.A.P. 501. Citizens Against Gambling Subsidies; Barnes Found.; Rowan.

Second, Keystone also lacks the "direct interest" required to appeal the Board's extension order as an "aggrieved person" under 2 Pa C.S. § 702. Although Keystone spent a large sum of money in its effort to secure a Category 2 license, the Board denied its application in December, 2006. Moreover, Keystone did not appeal the Board's denial of its application. In short, in 2009, more than two years after the Board denied its license application, Keystone no longer had an immediate direct interest in a Category 2 license capable of being harmed by the Board's decision in the extension proceeding. Therefore, Keystone lacked standing to appeal the Board's extension order as an "aggrieved person" under 2 Pa.C.S. § 702. Citizens Against Gambling Subsidies; Capital BlueCross v. Ins. Dep't, 937 A.2d 552 (Pa.Cmwlth. 2007), appeal denied sub nom., Sklaroff v. Ario, 600 Pa. 106, 963 A.2d 906 (2009).

Because Keystone lacked standing to appeal the Board's extension order either as an "aggrieved party" under Pa. R.A.P. 501 or an "aggrieved person" under 2 Pa.C.S. § 702, we quash Keystone's petition for review at 2145 C.D. 2009 to the extent it seeks review of the Board's extension order. See Capital BlueCross (where appellant lacks standing to appeal agency adjudication under either Pa. R.A.P. 501 or 2 Pa.C.S. § 702, the proper remedy is to quash the petition for review).

Having quashed Keystone's appeal from the Board's extension order we need not address Keystone's remaining challenges to the Board's extension decision.

C. Petition to Re-open 1. Keystone's Argument

Keystone next contends the Board erred and abused its discretion in determining that Keystone lacked standing to petition to re-open its and Licensee's initial licensing proceedings. Here, Keystone asserts the Board erred in determining it waived its right to re-open the licensing proceedings by not appealing the Board's licensing decision. Keystone contends none of the facts supporting its argument that Licensee abandoned or forfeited its license were in existence at the time the Board issued its licensing decision. Further, Keystone argues there is nothing in Riverwalk, the Supreme Court's decision upholding the Board's licensing decision, that compels such a preclusive effect because the facts supporting the assertion that Licensee abandoned its license were not in existence.

Keystone further contends the Board's determination that it does not have standing under 58 Pa. Code § 493a.4(a) to petition to re-open the license application proceedings, violates its due process rights by denying it access to the Board to raise issues of fact, law and equity regarding Licensee's actions. See Pa. Bankers Ass'n v. Pa. Dep't of Banking, 598 Pa. 313, 956 A.2d 956 (2008) (basic tenets of due process apply with equal force in both administrative and judicial proceedings).

Keystone also contends the Board erred, abused its discretion and denied it due process by denying the petition to re-open without holding a fact-finding proceeding to accept evidence of Licensee's post-licensing actions and to resolve disputed issues of fact regarding Licensee's failure to develop the Columbus Boulevard site. Rather, Keystone asserts, the Board simply stated in its decision that the petition to re-open was moot because it granted Licensee's extension petition. In so doing, the Board abdicated its duty to enforce the Act and arbitrarily executed its statutory responsibilities. Keystone contends it is entitled to an adjudication of its claims in the petition to re-open.

Finally, Keystone contends the Board erred and denied it due process by denying its petition to re-open by making factual findings in the absence of a valid adjudication. Here, Keystone asserts the Board erred and denied it due process by accepting unsworn, conclusory statements of OEC's chief counsel on the issue of whether Licensee abandoned its license. OEC's chief counsel was not subject to cross-examination and did not identify any facts upon which his conclusions were based. Keystone had no opportunity to present evidence. Thereafter, the Board issued an order denying the petition to re-open containing the finding that Licensee has not abandoned its license. Due process requires a reasonable opportunity to meet and rebut evidence used by an administrative agency. Manor v. Dep't of Pub. Welfare, 796 A.2d 1020 (Pa.Cmwlth. 2002).

2. Analysis a. Standing

In its petition to re-open, Keystone averred (with emphasis added):

Pursuant to 58 Pa. Code § 493a.4, [Keystone] petitions the [Board] to declare Category 2 Slot Machine License No. F-1367 . . . to be abandoned, forfeited or revoked and, therefore, available for issuance to an eligible, qualified and suitable applicant . . . and to approve Keystone's application for a Category 2 slot machine license. Keystone, in support, states:

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30. Keystone is the sole remaining qualified, eligible and suitable applicant that submitted a timely application for a Category 2 slot machine license in the City of Philadelphia. (Citation omitted.) (R.R. at 186a, 192a)

Pursuant to 58 Pa. Code § 493a.4(a), "[p]etitions may be filed by BIE, parties, applicants, licensees, permittees, persons registered or certified by the Board, and other persons authorized by the Board." For the reasons below, we agree with Licensee that following the Board's denial of Keystone's application in 2006, it lacked standing under 58 Pa. Code § 493a.4(a) to petition the Board to reopen the 2006 licensing proceedings.

First, Keystone is no longer an applicant for a Category 2 license. The Board denied Keystone's application in December, 2006, and there are currently no Category 2 licenses available. The Act defines an "applicant" as "[a]ny person who, on his own behalf, or on behalf of another, is applying for permission to engage in any act or activity which is regulated under the provisions of this [Act]." 4 Pa.C.S. § 1103. Here, Keystone remained an applicant until the Board denied its application. At that point, Keystone's status as an "applicant" under the Act terminated. Keystone did not appeal the Board's denial of its application. In addition, Keystone filed no further applications with the Board. Consequently, Keystone lacks standing as an applicant to petition to re-open the licensing proceedings under 58 Pa. Code § 493a.4(a).

Second, Keystone is no longer a party to any Board proceeding. A "party" is defined by Board regulations as "[a] person who is named in or admitted to a proceeding before the Board and who has a direct interest in the subject matter of the proceeding." 58 Pa. Code § 491a.2 (emphasis added). Keystone is no longer a named party to any Board proceeding and lost any interest it had in a Category 2 license when the Board denied its application. Thus, Keystone's status as a party to a Board proceeding also terminated when the Board denied its application.

Third, Keystone never sought authorization from the Board to file its petition to re-open, and the Board never granted it. Although Keystone contends 58 Pa. Code § 493a.4(a) violates its due process rights by precluding it from accessing the Board to raise issues of fact, law and equity, Keystone no longer has an interest in a Category 2 license requiring due process protection.

For the same reasons, the Board did not err in determining Keystone failed to meet the "traditional aggrievement" test for standing to petition to reopen the licensing proceedings. In order to obtain judicial resolution of a dispute, a person must, as a threshold matter, establish standing to bring the action. Pittsburgh Palisades Park; Stilp v. Commonwealth, 927 A.2d 707 (Pa.Cmwlth. 2007). A person who is not adversely affected by the matter he seeks to challenge is not aggrieved by it and therefore lacks standing to invoke the judicial process. Id. Judicial intervention is only appropriate where the underlying controversy is real and concrete. Id.

As discussed above, Keystone's status as an unsuccessful 2006 applicant for a Category 2 license does not vest it with standing in 2009 to petition to re-open the initial licensing proceedings. Keystone lost any interest in a Category 2 license when the Board denied its initial license application and awarded the two available licenses to Licensee and HSP. Pittsburgh Palisades Park.

Keystone averred in its petition to reopen that it has an interest in a Category 2 license based on it is status as the only non-North Delaware Avenue applicant found eligible and suitable in 2006 and Licensee's abandonment or forfeiture of its license by its attempts to relocate. In rejecting this argument above, we relied in part on the passage of time. Even if the Board ultimately revokes Licensee's license, Keystone would not be entitled to it. Rather, Keystone would have to establish its current suitability for a license in a new application proceeding. Consequently, Keystone's status as an unsuccessful 2006 applicant for a Category 2 license does not give it standing to now petition to re-open the initial licensing proceedings. Id.

b. Legal Authority

We also agree with the Board that Keystone lacks either standing or the legal authority under the Act to petition the Board to petition to re-open the licensing proceedings and revoke Licensee's license. Rather, only the Board, BIE and OEC have the regulatory authority to revoke a slot machine license.

As to the Board, Section 1202(a) of the Act (Board's general and specific powers) provides (with emphasis added):

(1) The [B]oard shall have general and sole regulatory authority over the conduct of gaming or related activities as described in this [Act]. The [B]oard shall ensure the integrity of the acquisition and operation of slot machines and associated equipment and shall have sole regulatory authority over every aspect of the authorization and operation of slot machines.

4 Pa.C.S. § 1202(a)(1). Moreover, Section 1207(1) of the Act, 4 Pa.C.S. § 1207(1) (regulatory authority of the Board) authorizes the Board to (with emphasis added):

Deny, deny the renewal, revoke, condition or suspend any license or permit provided for in this [Act] if the [B]oard finds in its sole discretion that a licensee or permittee under this [Act], or its officers, employees or agents, have furnished false or misleading information to the [B]oard or failed to comply with the provisions of this [Act] or the rules and regulations of the [B]oard and that it would be in the public interest to deny, deny the renewal, revoke, condition or suspend any license or permit.

Further, Section 1326(b) of the Act, 4 Pa.C.S. § 1326(b) (license renewals; revocation or failure to renew) pertinently provides (with emphasis added):

Revocation or failure to renew. — In addition to any other sanctions the [B]oard may impose under this [Act], the [B]oard may at its discretion suspend, revoke, or deny renewal of any permit or license issued under this [Act] if it receives any information from any source that the applicant or any of its officers, directors, owners or key employees is in violation of any provision of this [Act], that the applicant has furnished the [B]oard with false or misleading information or that the information contained in the applicant's initial application or any renewal application is no longer true and correct. In the event of a revocation or failure to renew, the applicant's authorization to conduct the previously approved activity shall immediately cease, and all fees paid in connection therewith shall be deemed to be forfeited.

Regarding BIE and OEC, BIE may investigate licensees and bring enforcement actions under the Act. 4 Pa.C.S. §§ 1517(a.1)(1) and (3). OEC, established within BIE, shall act as the prosecutor in all noncriminal enforcement actions brought by BIE. 4 Pa.C.S. § 1517(a.2)(1). Further, OEC may "[i]nitiate, in its sole discretion, proceedings for noncriminal violations of this part by filing a complaint or other pleading with the [B]oard." 4 Pa.C.S. § 1517(a.2)(1)(iii).

In short, the Act vests the Board with sole regulatory authority over the conduct of gaming and the revocation of licenses. 4 Pa.C.S. §§ 1202(a)(1), 1207(1) and 1326(b). The Act also vests BIE and OEC with sole discretionary authority to bring enforcement actions. 4 Pa.C.S. §§ 1517(a.1) and (a.2). Nothing in the Act or the Board's regulations authorized Keystone to petition the Board to revoke Licensee's license. Therefore, Keystone lacked either the required standing or the legal authority under the Act to petition to re-open the licensing proceedings to revoke Licensee's license.

As discussed above, BIE, through OEC consistently objected to and opposed any attempt by Licensee to seek an extension to relocate its casino site away from Columbus Boulevard.

c. Timeliness

We also note Keystone's petition to re-open, filed in January, 2009, years after the award of the licenses, was untimely. Board regulations at 58 Pa. Code § 494a.6 (reopening of record) pertinently provide (with emphasis added):

(a) After the conclusion of the hearing, a party in a proceeding may file with the presiding officer, prior to the issuance of a report and recommendation, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition must set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred since the hearing was concluded.

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(f) Prior to the issuance of a final order, the Board, after notice to the parties, may reopen the proceeding for the receipt of further evidence, if the Board has reason to believe that the facts or law have changed as to require, or that the public interest requires, the reopening of the proceeding.

(g) This section supercedes 1 Pa. Code §§ 35.231-35.233 (relating to reopening of record).

This reasonable regulation balances a party's interest in bringing after-discovered evidence to the attention of the Board against the public's interest in finality in the issuance of licenses.

Here, Keystone sought to re-open both its and Licensee's licensing proceedings years after the Board's licensing decision. Clearly, Keystone's petition to re-open was untimely under 58 Pa. Code §§ 494a.6(a) and (f).

d. Evidentiary Hearing

We also reject Keystone's contention that the Board denied it due process by rejecting the petition to re-open without holding a fact-finding proceeding to accept evidence of Licensee's post-licensing actions and to resolve disputed issues of fact regarding Licensee's failure to develop the Columbus Boulevard site. As discussed above, Keystone lacks both standing and the legal authority under the Act to petition for revocation of Licensee's license. Nevertheless, the Board considered oral and written arguments from Keystone, Licensee and OEC on Keystone's petition to re-open. Thus, any rights which Keystone may have in any particular process were not violated.

We further reject Keystone's contention that the Board denied it due process by accepting unsworn, conclusory statements from OEC's chief counsel on the issue of whether Licensee abandoned its license. At the end of oral argument on Keystone's petition to re-open, the Board asked if OEC had anything to add. See N.T., Bd. Hr'g of October 21, 2009, at 23-24; R.R. at 587a-88a. OEC's chief counsel argued the record showed Licensee did not abandon its license. He asserted Licensee's representatives stated on the record that they remain committed to developing the Columbus Boulevard site. Id. at 24; R.R. at 588a. OEC is keeping track of what Licensee is doing. If it feels Licensee abandoned its license, it will move to revoke the license. Id. at 23-24; R.R. at 587a-88a. OEC's chief counsel did not testify as to facts; rather, he stated OEC's position. Any rights which Keystone may have in any process were not violated.

d. Mootness.

Finally, we agree with the Board that its September, 2009, order granting Licensee an extension petition rendered Keystone's petition to re-open moot. The Board granted Licensee an extension until the end of May, 2011, to open a casino at the Columbus Boulevard site that is substantially similar to the one proposed in Licensee's application.

It is well-settled principle that "in general courts will not decide moot questions unless there is an actual case or controversy existing at all stages of the judicial or administrative process. . . ." Nutter v. Dougherty, 921 A.2d 44, 61 (Pa.Cmwlth.), aff'd, 595 Pa. 340, 938 A.2d 401 (2007) (citing Pub. Defender's Office of Venango Cnty. v. Venango Cnty. Court of Common Pleas, 586 Pa. 317, 893 A.2d 1275 (2006)). In Venango, the Supreme Court summarized the mootness doctrine as follows:

The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten underway — changes in the facts or in the law — which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed.

586 Pa. at 325, 893 A.2d at 1279 (citations omitted). Further, the existence of a case or controversy requires a real rather than hypothetical controversy and one that affects an individual in a concrete manner. Nutter (citing Mistich v. Pa. Bd. of Prob. Parole, 863 A.2d 116 (Pa.Cmwlth. 2004)).

Here, Keystone based its petition to re-open on Licensee's alleged abandonment of the Board-approved Columbus Boulevard site and on attempts to relocate to a non-riverfront location. The Board, however, determined in its extension decision that Licensee established good cause for a 24-month extension and that Licensee remained committed to developing the Columbus Boulevard site as it proposed in its application. Moreover, the Board's extension order specifically limited Licensee to developing a casino substantially similar to the one it proposed at the Board-approved site.

Because the Board granted Licensee an extension until the end of May, 2011, to build the casino it promised, and build it at the Columbus Boulevard site, any actual "case or controversy" as to whether Licensee abandoned its license no longer existed. Therefore, the Board did not err in determining that Keystone's petition to re-open was moot. Venango County; Nutter.

Nonetheless, Keystone contends the mootness doctrine does not apply here because it raised issues important to the public interest that are capable of repetition and are likely to evade appellate review. See Commonwealth v. Baker, 564 Pa. 192, 766 A.2d 328 (2001). More specifically, Keystone argues the Board's failure to hold adequate evidentiary hearings and resolve disputed issues of fact regarding Licensee's post-licensing actions raises issues that are capable of repetition because Licensee is likely to return to the Board for further relief from the deadlines to comply with the conditions of its license.

We disagree. As discussed above, the Board did not err or violate Keystone's rights in denying Keystone's petition to re-open without an evidentiary hearing on Licensee's post-licensing actions. Keystone lacked both the required standing and legal authority under the Act to petition to re-open the licensing proceedings and revoke Licensee's license. Moreover, the Board's extension order prohibits Licensee from relocating its casino. Therefore, there are no unresolved issues capable of evading appellate review.

IV. Conclusion

For the above reasons, we affirm the Board's orders denying Keystone's petition to intervene in Licensee's extension proceeding and denying Keystone's petition to re-open the licensing proceedings. Further, we quash Licensee's petition for review, filed at 2145 C.D. 2009, to the extent it seeks review of the Board's decision and order granting Licensee's extension petition.

Judge LEAVTTT did not participate in the decision in this case.

Judge BROBSON did not participate in the decision in this case.

Judge BUTLER did not participate in the decision in this case.

ORDER

AND NOW, this 16th day of September, 2010, Petitioner Keystone Redevelopment Partners' petition for review, filed at 2145 C.D. 2009, is QUASHED to the extent it seeks review of the Pennsylvania Gaming Control Board's order granting Respondent Philadelphia Entertainment and Development Partners' petition for extension of time to make slot machines available for play. The Board's orders denying Petitioner Keystone's petition to intervene in the extension proceeding and petition to re-open license application proceedings are AFFIRMED.