# Downs Racing, L.P. v. Luzerne County

> Commonwealth Court of Pennsylvania · February 3, 2026

URL: https://www.frixlaw.com/law-library/cases/11249975

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** February 3, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion of the court by Leadbetter
- **Judges:** Leadbetter
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Downs Racing, L.P., d/b/a Mohegan :
Sun Pocono, f/k/a Mohegan Sun at :
Pocono Downs :
:
v. : No. 1752 C.D. 2024
: ARGUED: December 8, 2025
Luzerne County, Luzerne County :
Treasurer, and Luzerne County :
Division of Budget and Finance, :
Appellants :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: February 3, 2026

Luzerne County, Luzerne County Treasurer, and Luzerne County
Division of Budget and Finance (collectively, Luzerne) appeal from the order of the
Court of Common Pleas of Luzerne County, granting the motion for summary
judgment of Downs Racing, L.P., d/b/a Mohegan Sun Pocono, f/k/a Mohegan Sun
at Pocono Downs (Mohegan). At issue in this long-running dispute is whether
Mohegan owes hotel room rental tax on complimentary rooms provided to patrons,
pursuant to the Third Class County Convention Center Authority Act (Act).1 We
affirm.

1
Act of August 9, 1955, as amended, added by the Act of November 3, 1999, P.L. 461, 16
P.S. §§ 2399.1-2399.23. The Act was repealed by the Act of May 8, 2024, P.L. 50, No. 14
(effective July 8, 2024), and reenacted and recodified at 16 Pa.C.S. §§ 17301-17323. For ease of
discussion, this opinion refers to the provisions of the prior Act, which were in place at the time
of the assessment being appealed.
I. The Act, Ordinance, and Regulations
The Act authorizes third class counties to impose a hotel room rental
tax to, among other things, “facilitate the development of a convention facility and”
promote “tourism within the county.” Section 2399.2(a)(7) of the Act, 16 P.S. §
2399.2(a)(7). Section 2399.23(a) of the Act provides that the tax shall be imposed
“on the consideration received by each operator of a hotel within the market area
from each transaction of renting a room or rooms to accommodate transients.” 16
P.S. § 2399.23(a) (emphasis added).2 The Act further provides that “[t]he tax shall
be collected by the operator from the patron of the room,” and “[t]he rate of tax
imposed . . . shall not exceed [5%].” Section 2399.23(a)-(b) of the Act, 16 P.S. §
2399.23(a)-(b).
Pursuant to this authority, Luzerne County enacted a Hotel Room
Rental Tax Ordinance (Ordinance) in 1996, and subsequently promulgated Hotel
Room Rental Tax Regulations (Regulations), imposing a 5% tax. See Reproduced
Record (R.R.) at 1a-15a. Section B of the Regulations pertaining to the “Imposition
of Tax” provides, in pertinent part:

1. Rate of Tax: The Hotel Room Rental Tax is
imposed at the rate of five percent (5%) effective July 1,
1996 and will continue thereafter upon the consideration
received by each operator of a hotel/inn within the County
of Luzerne from each transaction of renting a room or
rooms to a transient. As used herein, [r]enting shall mean
the act of paying or being paid consideration, whether
received in cash money or otherwise for occupancy.

2. Collection of Tax by Operator: The tax is to be
collected by the operator of each hotel/inn, at the time of

2
The corresponding language in Luzerne County’s Hotel Room Rental Tax Ordinance
(Ordinance) is nearly identical. See Ordinance § B.1.

2
payment, from each person who pays the consideration of
renting a room.

Regulations § B.1-B.2 (emphasis added). Section D of the Regulations pertaining
to “Items Subject to Tax,” states that “[t]he occupancy of any room, for
consideration, . . . is subject to the tax.” Regulations § D.
The Ordinance relies on hotel operators to self-report the information
necessary to calculate the tax on forms furnished by the County Treasurer.
Ordinance § E.1-E.5. Specifically, each month, an operator “shall report the amount
of consideration received for the transactions during the month,” and “shall compute
and pay to the Treasurer the taxes shown as due on the return[.]” Ordinance §§ E.4
& E.5. If an operator fails or refuses to collect the tax or fails to report and remit
payment of any portion of the tax, “the County Treasurer shall proceed in such
manner as he may deem best to obtain facts and information on which to base his
estimate of the tax due[,]” and then issue an assessment, including interest.
Regulations § H. Section J of the Regulations provides:

It is presumed that all rooms are subject to the tax until the
contrary is established by accurate records from the
operator. The burden of proving that the rent or occupancy
received is not taxable is upon the operator and the
operator must demonstrate same through accurate records.
In any case where a hotel operator fails to maintain
adequate records as required under these Regulations, any
room for which there is not adequate records shall be
deemed to be occupied for the entire period for which the
supporting records are lacking.

The following definitions provided in Section 2399.23(j) of the Act are
significant to the present dispute:

“Consideration” shall mean receipts, fees, charges, rentals,
leases, cash, credits, property of any kind or nature or other

3
payment received by operators in exchange for or in
consideration of the use or occupancy by a transient of a
room or rooms in a hotel for a temporary period.

....

“Occupancy” shall mean the use or possession or the right
to the use or possession by a person other than a permanent
resident of a room in a hotel for any purpose or the right
to the use or possession of the furnishings or to the services
accompanying the use and possession of the room.

....

“Patron” shall mean any person who pays the
consideration for the occupancy of a room or rooms in a
hotel.

....

“Transaction” shall mean the activity involving the
obtaining by a transient or patron of the use or occupancy
of a hotel room from which consideration emanates to the
operator under an express or an implied contract.

“Transient” shall mean an individual who obtains an
accommodation in any hotel for himself by means of
registering at the facility for the temporary occupancy of a
room for the personal use of that individual by paying to
the operator of the facility a fee in consideration therefor.

16 P.S. § 2399.23(j). The Ordinance repeats these definitions almost verbatim, see
Ordinance § A, and the Regulations incorporate the definitions from the Ordinance,
see Regulations § A.
II. Factual and Procedural Background
Mohegan is a Pennsylvania Limited Partnership and casino resort in
Luzerne County which includes a hotel, casino, convention center, racing operation,
spa, and multiple bars and restaurants. R.R. at 86a, 183a. Mohegan admittedly

4
offers a significant number of complimentary rooms to both patrons and potential
patrons, including members of Mohegan’s loyalty program known as
“Momentum.”3 Mohegan does so by providing recipients with an offer code which
can be redeemed for a complimentary room.
For years, Mohegan self-reported and paid the tax on all its rooms,
including complimentary rooms. See R.R. at 340a; Luzerne’s Br. at 10. Mohegan
stopped paying the tax on complimentary rooms in 2016 on the advice of counsel.
R.R. at 340a. Two years later, Luzerne noticed a discrepancy in Mohegan’s
reporting, namely that it “ceased remitting tax on a category of rooms it had
previously treated as taxable,” that being complimentary rooms. Luzerne’s Br. at
11. See also R.R. at 340a-41a.
After conducting a review as authorized by the Ordinance and
Regulations, Luzerne issued Mohegan an assessment for $1,368,081.17 in unpaid
taxes for complimentary rooms it provided to patrons from January 2016 through
August 2018. R.R. at 33a. Luzerne assumed 100% occupancy for purposes of the
assessment because Mohegan failed to submit any data on the actual number of
complimentary rooms it provided during that time period, and Luzerne calculated
the tax due based on a rate of $159.00 per night. See Regulations § J; R.R. at 33a.
Mohegan challenged the assessment, and an informal hearing4 was held
by Luzerne in November 2018. See R.R. at 40a-41a. By letter dated August 25,
2020, Luzerne affirmed the assessment, and Mohegan subsequently appealed to the

3
We note that the complimentary rooms at issue here are not rooms that Momentum
participants purchase using their reward dollars. See R.R. at 412a. Since Momentum participants
pay for those rooms with reward dollars, which can be spent like money throughout the resort,
Mohegan concedes that those rooms are taxable. Id.
4
While Luzerne presented witnesses and evidence at the hearing, no transcript or record
was made or retained.

5
trial court. R.R. at 43a, 19a-31a. Luzerne filed a motion to dismiss Mohegan’s
“appeal for lack of subject matter jurisdiction, arguing that the [Luzerne County
Convention Center] Authority, which never sought to intervene, was a necessary and
indispensable party to the action.” Downs Racing, L.P. v. Luzerne Cnty., 297 A.3d
20, 23 (Pa. Cmwlth. 2023) (Mohegan I). The trial court issued an order denying
Luzerne’s motion and directing Mohegan to join the Authority as a party. Id.
Mohegan appealed the trial court’s interlocutory order to this Court and
Luzerne filed an application to quash the appeal. Id. at 23. In Mohegan I, we denied
Luzerne’s application to quash, finding that the trial court’s order was immediately
appealable as a collateral order under Pennsylvania Rule of Appellate Procedure
(Pa.R.A.P.) 313. Id. at 26. We further found that the Authority was not an
indispensable party because its interest was not essential to the merits of the
underlying issue; therefore, we reversed the trial court’s order and remanded for
further proceedings on the merits. Id. at 27.
The parties engaged in discovery following remand, at the conclusion
of which Mohegan filed a motion for summary judgment. See R.R. at 60a-78a.
Mohegan essentially argued that the assessment is not authorized by the Act,
Ordinance, or Regulations because Mohegan does not receive any consideration for
its complimentary rooms. In support of this motion, Mohegan submitted excerpts
from Luzerne’s discovery responses, excerpts from deposition transcripts, and the
parties’ concise stipulation of facts (SOF).5 This stipulation includes the following
statement: “For purposes of this tax assessment appeal only, a ‘complimentary room’

5
The parties stipulated that Luzerne’s assessment improperly included 22,746 unoccupied
rooms (totaling $180,830.70 in tax) and 4,837 rooms provided to Mohegan employees or
performing entertainers and their support crews (totaling $38,454.15 in tax). R.R. at 88a (SOF ¶¶
13-18). After subtracting these amounts, the parties stipulated that the amount of tax that remains
at issue is $1,148,796.86 based on 136,599 complimentary rooms. R.R. at 89a (SOF ¶ 20).

6
means any Mohegan hotel room or suite that Mohegan offers to customers or
potential customers without requesting payment.” R.R. at 86a (SOF ¶ 5).
In opposition to the motion for summary judgment, Luzerne argued that
Mohegan received consideration for its complimentary rooms in the form of
increased foot traffic, customer presence and loyalty, and surplus revenue, as well
as the aesthetic benefits and increased excitement of a full casino. Luzerne’s
supporting evidence included discovery responses, deposition transcripts,
Mohegan’s own records, and the expert report of Professor Anthony Lucas, Ph.D.,
a tenured professor at the University of Nevada, Las Vegas, teaching graduate and
undergraduate courses on various casino topics. See R.R. at 219a-26a. According
to his expert report, Dr. Lucas was “asked to opine as to whether compensation was
received by [Mohegan] in exchange for complimentary rooms provided to patrons,
during the” relevant period. R.R. at 221a. Dr. Lucas opined, “to a reasonable degree
of professional certainty[,] that Mohegan received value for the complimentary hotel
rooms.” Id.6

6
Dr. Lucas later tied this conclusion to the specific definitions in the Act and Ordinance,
opining

that there are “receipts, fees, charges, rentals, leases, cash, credits,
property of any kind or nature or other payment received” by
Mohegan “in consideration of the use or occupancy” of a
complimentary hotel room. One form of consideration is the wagers
received in the casino, regardless of whether they are actually won
or lost. Another form of consideration is using complimentary hotel
rooms to fill the casino with players, adding to the overall aesthetic
value and excitement of the casino floor. The latter is essential to
the provision of an environment that meets the expectations of
casino patrons. Therefore, even if one considers that the casino
revenue is taxed, there is still additional value or consideration that
is not taxed.

R.R. at 224a.

7
In November 2024, the trial court issued an order and accompanying
opinion granting Mohegan’s motion for summary judgment. R.R. at 404a-14a. The
trial court found that the language of the Act and Ordinance is unambiguous,
specifically that “[t]he plain reading of the definition of ‘consideration’ under the
Act does not include the alleged consideration argued by Luzerne.” R.R. at 410a.
While the trial court agreed “that consideration does not need to take the form of a
cash exchange, it does require a ‘quid pro quo.’” R.R. at 411a [quoting Stelmack v.
Glen Alden Coal Co., 14 A.2d 127, 129 (Pa. 1940)]. Although Mohegan’s
complimentary room is an offer, there is no guarantee that the recipient will stay at
the hotel, visit the casino, or spend money at all; therefore, “[t]he complimentary
room is simply a gift.” R.R. at 411a-12a. The trial court also rejected Luzerne’s
argument that there is a material dispute of fact that precludes summary judgment.
R.R. at 413a-14a.
Luzerne appealed and, in compliance with the trial court’s order, filed
a concise statement of errors complained of on appeal, including that the trial court
erred by relying on the common law definition of consideration rather than the
definition found in the Act and Ordinance, and in disregarding Dr. Lucas’s expert
report. See R.R. at 445a. The trial court issued a supplemental opinion addressing
these purported errors, pursuant to Pa.R.A.P. 1925(a). See R.R. at 444a-48a.
III. Issues
Luzerne raises two issues on appeal: (1) whether the non-monetary
value Mohegan admittedly receives in exchange for providing complimentary rooms
to its loyalty members qualifies as consideration under the Act and Ordinance; and

8
(2) whether the trial court erred in granting summary judgment by resolving disputed
factual issues and disregarding Luzerne’s expert’s report.7
IV. Discussion
A. Consideration
Luzerne first argues that the trial court erred by ignoring the statutory
definition of “consideration” as set forth in the Act and Ordinance, and instead,
utilizing the common law contractual meaning of the term. It is axiomatic that
statutory interpretation begins with the text. See, e.g., Section 1921 of the Statutory
Construction Act of 1972, 1 Pa.C.S. § 1921; Commonwealth v. Gamby, 283 A.3d
298, 306 (Pa. 2022) (“Only in instances where the words of a statute are not explicit,
or are ambiguous, do we consider the construction factors enumerated in 1 Pa.C.S.
§ 1921(c).”); Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1242 (Pa. 2017)
(“When the words of a statute are clear and free from all ambiguity, they are
presumed to be the best indication of legislative intent.”). According to Luzerne,
only if a statute fails to define a term should a court turn to the principles of statutory
interpretation such as affording common words their ordinary meaning. Stated
differently, where a statute specifically defines a term, courts are bound by that
definition and should not turn to outside legal concepts.

7
In an appeal from a trial court order “granting summary judgment, our standard of review
is plenary.” Carpenter v. William Penn Sch. Dist., 295 A.3d 22, 29 n.5 (Pa. Cmwlth. 2023)
[quoting Brewington v. City of Phila., 149 A.3d 901, 904 n.3 (Pa. Cmwlth. 2016)]. See also
Mission Funding Alpha v. Commonwealth, 173 A.3d 748, 757 (Pa. 2017) (in tax appeal involving
a legal question of statutory interpretation, “our . . . review is plenary”). Summary judgment is
only proper when there is no genuine issue of material fact and “‘the moving party is clearly
entitled to judgment as a matter of law.’” Carpenter, 295 A.3d at 29 n.5 [quoting Pyeritz v.
Commonwealth, 32 A.3d 687, 692 (Pa. 2011)]. See also Pa.R.Civ.P. 1035.2 In conducting our
review, the Court must view the record in the light most favorable to the non-moving party, and
resolve all doubts as to the existence of a genuine issue of material fact against the moving party.
Carpenter, 295 A.3d at 29 n.5.

9
Luzerne maintains that the trial court disregarded these principles as
well as the statutory definition of consideration in determining that Mohegan did not
receive consideration for its complimentary rooms. According to Luzerne, the Act
and the Ordinance provide a broad, expansive definition of the term consideration,
including “receipts, fees, charges, rentals, leases, cash, credits, property of any kind
or nature, or other payment” received in connection with a room stay. 16 P.S. §
2399.23(j) (emphasis added); Ordinance § A. Luzerne argues that the General
Assembly purposefully crafted the Act to provide a sweeping definition of
consideration so as to “capture the full spectrum of value hotels receive for lodging,
whether monetary or not.” Luzerne’s Br. at 35. Patrons do not even need to actually
stay at the hotel for there to be consideration as the definition and other portions of
the Act and Ordinance provide that merely acquiring the “right to use” a room is
enough to trigger taxable “occupancy.” 16 P.S. § 2399.23(j) (definition of
“occupancy” includes “the right to use or possession” of the hotel room); Ordinance
§ A (same). Luzerne maintains that the plain language of the Act and Ordinance
makes clear that it is the value a hotel receives in return for the right to occupy its
rooms that determines taxability, not the labels assigned to the transaction. The trial
court’s failure to apply the broad, value-driven definition of consideration allowed
it to bypass the factual complexity of Mohegan’s loyalty program and ignore the
economic benefits Mohegan receives from providing patrons with complimentary
rooms, e.g., the increased excitement and more favorable aesthetic that stems from
a full casino, hotel, restaurants, and entertainment venue.
Alternatively, Luzerne points out that Mohegan provides patrons with
offer codes that must be redeemed for these complimentary rooms. According to
Luzerne, the offer codes fit within three categories listed in the Act’s definition of

10
consideration: (1) they are “credits” because Mohegan uploads the offer codes
directly to a Momentum member’s account8 or to other potential patrons; (2) they
are “property of any kind or nature” because they are issued digitally or by mail, are
received and possessed by these patrons, and are used by them to secure lodging at
Mohegan’s hotel; and (3) they are “payment” because they are what members give
in exchange for Mohegan’s provision of something of value, i.e., lodging. The offer
codes are not provided out of charity, with nothing expected in return; nor are they
distributed randomly to the general public. To the contrary, Mohegan admittedly
issues the offer codes after conducting a proprietary analysis as to the potential costs
and benefits. The offer codes are issued selectively to certain high-value players or
to specific patrons Mohegan wishes to attract to the resort. In short, Luzerne asserts
that the offer codes are not gifts but rather “transactional vehicles designed to induce
patron presence and spending.” Luzerne’s Br. at 39.
It is true that, “[g]enerally, the best indication of the General
Assembly’s intent is the plain language of the statute.” Mission Funding Alpha v.
Commonwealth, 173 A.3d 748, 757 (Pa. 2017). The Court also cannot ignore or
sidestep the Act’s definitions as they are binding. Young’s Sales & Serv. v.
Underground Storage Tank Indemnification Bd., 70 A.3d 795, 801 (Pa. 2013)
(“Where the General Assembly defines words that are used in the statute, those
definitions are binding.”) (citation omitted). However, we disagree with Luzerne’s
statutory interpretation arguments, in particular because these arguments conflate
“value” with “consideration.” To the contrary, we agree with the trial court that the

8
As noted above, these codes are given to both Momentum members and other potential
patrons. They are different from the reward dollars which Momentum members can use to
purchase goods and services, including rooms, throughout the resort and which are admittedly
taxable.

11
language of the Act, Regulations, and Ordinance is clear and unambiguous and
supports the determination that complimentary rooms are not subject to the tax
because Mohegan receives no consideration in return.
In making its plain language argument, Luzerne ignores the most telling
language in the statute, Ordinance, and Regulations. For instance, Section
2399.23(a) of the Act authorizes the tax only “on the consideration received by each
operator of a hotel . . . from each transaction of renting a room or rooms to
accommodate transients.” 16 P.S. § 2399.23(a) (emphasis added). Furthermore, the
Regulations provide that, the “[t]ax is imposed . . . upon the consideration received
. . . from each transaction of renting a room[,]” and “[t]he tax is to be collected . . .
at the time of payment, from each person who pays the consideration[.]”
Regulations § B.1-B.2. These provisions would make no sense, let alone be
impossible to implement, under Luzerne’s theory that the hotel receives the taxable
“consideration” in the form of the value received by the hotel from increased
business and revenue generally.
The definitions of “consideration,” “patron,” “transaction,” and
“transient” all clearly require the payment—be it in cash or otherwise—of
consideration to a hotel operator in exchange for the use or occupancy of a hotel
room. For example, the definition of “consideration” specifically refers to “payment
received by” a hotel operator; the term “patron” is defined as “[a]ny person who pays
the consideration for” a hotel room; and “transaction” involves the consideration that
“emanates to a [hotel] operator under an express or an implied contract.” See Section
2399.23(j) of the Act, 16 P.S. § 2399.23(j); see also Ordinance § A. Most telling,
the definition of “transient” explicitly denotes an “individual who obtains an
accommodation . . . by paying to the operator of the facility a fee in consideration

12
thereof.” Id. (emphasis added). When reading all of the provisions of the Act
together, as we must, the requirement of payment becomes clear. See, e.g., Synthes
USA HQ, Inc. v. Commonwealth, 289 A.3d 846, 855 (Pa. 2023) (noting courts must
read statutes in pari materia and a statute should “be construed, if possible, to give
effect to all its provisions, so that no provision is mere surplusage”) (quotation
omitted). The Regulations only serve to reinforce this payment requirement, as they
state that “[r]enting shall mean the act of paying or being paid consideration,
whether received in cash money or otherwise for occupancy[,]” and that “[t]he tax
is to be collected . . . at the time of payment[.]” Regulations §§ B.1 & B.2 (emphasis
added). Here, the parties stipulated that “a ‘complimentary room’ means any
Mohegan hotel room or suite that Mohegan offers to customers or potential
customers without requesting payment.” R.R. at 86a (SOF ¶ 5).
Further, the “common and approved usage” of the term consideration
demonstrates that the tax cannot be assessed on complimentary rooms. As the trial
court recognized, while it is well-established “that consideration does not need to
take the form of a cash exchange, it does require a ‘quid pro quo.’” Trial Ct. Initial
Op., R.R. at 411a (quoting Stelmack, 14 A.2d at 129). Here, Mohegan does not
actually receive anything from the occupants in return for its complimentary rooms.
There is no requirement that patrons do or give anything in exchange as there is no
request for or payment of money and there is no express or implied contract since
there is no requirement that a patron redeem the offer. To this end, Luzerne’s
argument that Mohegan receives the benefits of a full and exciting hotel and casino
resort is speculative. There is no guarantee that patrons will accept the offer of a
complimentary room and, even if they do, they may not visit or gamble at the casino,
spend money at the shops, eat at the restaurants, etc. Moreover, the benefits

13
Mohegan may potentially receive are not necessarily given by the occupants of the
complimentary rooms, but by patrons of the casino in general. In short, the offer of
a complimentary room is merely a gift, with nothing guaranteed to Mohegan in
exchange—no quid pro quo.
While Luzerne argues that the Act and Ordinance “tax value, not
labels,” the term “value” is not mentioned or defined in the Act or Ordinance, let
alone included in the definition of consideration. If the General Assembly had meant
for the tax to be imposed on complimentary rooms it could and would have explicitly
included language to this effect. Luzerne’s own tax reporting form belies its value-
related arguments as the form “asks only for gross receipts for the period, less
claimed exempt receipts, for a total of taxable receipts.” Mohegan’s Br. at 21. See
also R.R. at 104a-05a (Report of Hotel Room Rental Tax form). Luzerne’s own
witnesses testified that the “gross receipts” referred to on this form are the gross
receipts collected by a hotel for the renting of hotel rooms, and Mohegan does not
collect anything from patrons with respect to its complimentary rooms.
This leads into the more practical problem that it is impossible to
determine the tax that would be due on complimentary rooms. Contrary to Luzerne’s
arguments, the tax is not imposed on the mere occupation of a hotel room; rather,
the tax is set at 5% of the consideration received. Section 2399.23(a) of the Act, 16
P.S. § 2399.23(a) (the tax shall be imposed “on the consideration received by each
operator of a hotel within the market area from each transaction of renting a room or
rooms to accommodate transients”); Ordinance § B.1 (“[t]here is hereby imposed an
excise tax on the consideration received by each operator of a hotel”). If that
consideration is an intangible—such as the benefits that may flow from a crowded
hotel and casino, including increased excitement, game play, and spending—it is not

14
possible to calculate the tax. Luzerne admittedly issued its assessment based upon
an average rental rate of $159.00 per night, but it is not clear where this number
came from, let alone whether that amount accurately reflects the “value” Mohegan
received in return for each complimentary room. These practical issues support
Mohegan’s contention that the complimentary rooms it provides are simply “a
marketing expense which Mohegan hopes will increase gaming revenue,” which is
already heavily taxed under the Pennsylvania Race Horse Development and Gaming
Act (Gaming Act).9 Mohegan’s Br. at 23 (emphasis in original). As Mohegan
admits, it

provides complimentary rooms to its customers as a
goodwill and marketing tool that it hopes will result in the
guest spending money at the casino, resort, and
entertainment facilities. If a guest in a complimentary
room does utilize these other entertainment facilities, the
money is not paid in exchange for the complimentary hotel
room.

Id. at 24 (emphasis added). In sum, the complimentary rooms are simply gifts.10
Given the plain language of the Act, Ordinance and Regulations, as well
as the record before us including the parties’ stipulations, we find that the trial court

9
4 Pa.C.S. §§ 1101-1904. As Mohegan points out, it already pays substantial taxes on
gaming revenue, guests pay tax on meals purchased on the premises, and shops collect and remit
sales tax on eligible items. Luzerne lacks authority to impose tax on gaming revenue since that is
explicitly governed by the Gaming Act and committed only to the Commonwealth through the
Department of Revenue. See, e.g., 4 Pa.C.S. § 1403 (regarding establishment of State Gaming
Fund).
10
Even if there were an ambiguity in the Act and Ordinance, “provisions that impose taxes
are strictly construed in favor of the taxpayer and against the taxing authority. Accordingly,
provisions defining what property is subject to the tax, as opposed to what property is ‘excluded,’
are interpreted strictly in favor of the taxpayer.” Greenwood Gaming & Ent., Inc. v. Dep’t of
Revenue, 90 A.3d 699, 710-11 (Pa. 2014) (citations omitted). See also 1 Pa.C.S. § 1928(b)(3)
(statutory “[p]rovisions imposing taxes” “shall be strictly construed”).

15
correctly held the tax is not applicable to complimentary rooms because Mohegan
does not receive any payment in exchange for the rooms, i.e., consideration.
B. Purported Factual Dispute and Expert Report
Luzerne next argues that, at a minimum, genuine issues of disputed
facts preclude the grant of summary judgment and the trial court erred by stepping
into the role of factfinder. First, the trial court acknowledged that whether Mohegan
actually collected the tax on complimentary rooms (and presumably failed to remit
the tax to Luzerne) was unclear. Trial Ct.’s Suppl. Op. at 4-5 (R.R. at 447a-48a)
(“the deposition transcripts indicate that the witnesses were unsure about the
collection of the [t]ax”). However, as the trial court explained, this information
would not assist the fact finder in reaching a decision one way or the other because
the sole question before the trial court was whether the tax is applicable to
complimentary rooms, not whether Mohegan ever collected the tax on these rooms.
Thus, whether tax was collected is not a material issue, the dispute over which would
preclude summary judgment. See, e.g., Pyeritz v. Commonwealth, 956 A.2d 1075,
1079 (Pa. Cmwlth. 2008) (“only disputes as to material issues of fact bar summary
judgment” and “[a] fact is material only if it directly affects the disposition of the
case”) (citations omitted).
Finally, Luzerne maintains that the trial court erred by, admittedly,
disregarding the report of Luzerne’s expert. Luzerne maintains that Dr. Lucas was
not retained to interpret the Act or Ordinance, or to opine on the legal definition of
consideration. Rather, “he was retained to ‘opine as to whether compensation was
received by [Mohegan] in exchange for complimentary rooms provided to patrons.’”
Luzerne’s Br. at 50 (quoting R.R. at 221a). Dr. Lucas provided this assessment
“based on industry norms and economic realities,” given his experience in the casino

16
industry. Luzerne’s Br. at 50. According to Luzerne, whether Mohegan received
anything in return for the complimentary rooms is a factual issue, completely distinct
from the legal issue of whether the value received qualifies as consideration under
the Act and Ordinance.
Contrary to Luzerne’s argument, the trial court did consider and address
Dr. Lucas’s report. See Trial Ct.’s Suppl. Op. at 3 (R.R. at 446a). The trial court
specifically determined that Dr. Lucas was retained to consider, and his report
ultimately opined as to whether Mohegan received consideration in exchange for its
complimentary rooms. Id. “Whether a contract is supported by consideration
presents a question of law[,]” Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa.,
895 A.2d 595, 601 (Pa. Super. 2006) [citing Davis & Warde, Inc. v. Tripodi, 616
A.2d 1384 (Pa. Super. 1992)],11 and “[i]t is well-settled that an expert is not permitted
to give an opinion on a question of law.” Waters v. State Emps. Ret. Bd., 955 A.2d
466, 471 n.7 (Pa. Cmwlth. 2008). Moreover, “trial courts have sound discretion to
admit or preclude expert testimony.” Nazarak v. Waite, 216 A.3d 1093, 1111 (Pa.
Super. 2019) [citing Kelly v. Thackray Crane Rental, Inc., 874 A.2d 649 (Pa. Super.
2005)]. For these reasons, the trial court did not abuse its discretion by
“disregarding” Dr. Lucas’s report.
Accordingly, the order of the trial court is affirmed.

BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

11
While not binding, Superior Court decisions “offer persuasive precedent where they
address analogous issues.” Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa.
Cmwlth. 2018).

17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Downs Racing, L.P., d/b/a Mohegan :
Sun Pocono, f/k/a Mohegan Sun at :
Pocono Downs :
:
v. : No. 1752 C.D. 2024
:
Luzerne County, Luzerne County :
Treasurer, and Luzerne County :
Division of Budget and Finance, :
Appellants :

ORDER

AND NOW, this 3rd day of February, 2026, the order of the Court of
Common Pleas of Luzerne County is hereby AFFIRMED.

BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11249975. Public record. Not legal advice.