stating that “Pennsylvania courts generally use dictionaries as source material to determine the common and approved usage of terms not defined in statutes”
How later courts described this case
- stating that “Pennsylvania courts generally use dictionaries as source material to determine the common and approved usage of terms not defined in statutes”
- declining to defer to the agency’s “hyper-technical” interpretation of a statutory provision where “there [was] nothing in the record indicating that the [agency] had considered and decided th[at] issue at a point prior to” the appeal
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jiffy Mini Mart, Inc. and :
Commonwealth Gaming LLC, :
Petitioners :
:
v. : No. 1661 C.D. 2019 and
: No. 58 C.D. 2020
Pennsylvania Gaming Control :
Board, :
Respondent : SUBMITTED: June 12, 2020
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 7, 2020
In these consolidated appeals, Jiffy Mini Mart, Inc. (Jiffy) and
Commonwealth Gaming LLC (Commonwealth Gaming) petition for review of the
October 31, 2019 Order of the Pennsylvania Gaming Control Board (Board) granting
Jiffy a video gaming terminal establishment license (License)1 under the
Pennsylvania Race Horse Development and Gaming Act (Gaming Act), 4 Pa. C.S.
§§ 1101-1904,2 and the Board’s December 27, 2019 Adjudication in support of its
October 31, 2019 Order. These appeals challenge the Board’s authority under the
1
Although both Jiffy and Commonwealth Gaming are Petitioners before this Court,
Commonwealth Gaming was an intervenor in the proceedings before the Board and was not
directly aggrieved by the Board’s October 31, 2019 Order granting Jiffy’s License. For this reason,
we refer only to “Jiffy” throughout this Opinion in discussing the issues and arguments presented
on appeal.
2
In October 2017, the General Assembly amended the Gaming Act by enacting Act 42 of
2017, which expanded legalized gaming to include the operation of video gaming terminals by
entities that meet the definition of a “truck stop establishment.” See 4 Pa. C.S. §§ 3101-4506.
Gaming Act and its regulations to impose conditions on the grant of Jiffy’s License.
For the reasons that follow, we affirm the Board’s October 31, 2019 Order and
dismiss Jiffy’s appeal from the December 27, 2019 Adjudication.
Background
Jiffy is a gas station owned by Hirdaypal and Herminder Gill. Jiffy is located
in Shippenville, Pennsylvania, on Route 66 near an interchange with Interstate 80.
The Gills purchased Jiffy in 2011. The property is situated on a 3.176-acre parcel
of land and consists of fuel islands, a gravel parking lot that can accommodate at
least 20 commercial vehicles, and a convenience store.
Commonwealth Gaming is a licensed video gaming terminal operator. On
February 4, 2018, Commonwealth Gaming and Jiffy entered into a Terminal
Placement Agreement that gave Commonwealth Gaming the exclusive right to place
video gaming terminals inside Jiffy’s facility.
On May 7, 2018, Jiffy filed with the Board an Application for a Video Gaming
Terminal Establishment License (Application). The Gaming Act defines an
“establishment license” as “a license issued by the board authorizing a truck stop
establishment to permit a terminal operator licensee to place and operate video
gaming terminals on the truck stop establishment’s premises.” 4 Pa. C.S. § 3102.
Under the Gaming Act, the Board was required to issue a conditional establishment
license within 60 days of receiving an application if the applicant: (1) was never
convicted of a felony; (2) was current on all state taxes; (3) submitted a completed
application; and (4) was never convicted of a gambling law violation. Id. §
3520(a)(2). A conditional license remains in effect until the Board either approves
or denies the application for full licensure. Id. § 3520(a)(4).
2
At the time of its Application, Jiffy submitted its recent monthly diesel and
biodiesel sales figures, and later provided the Board with updated figures through
December 2018, as follows:
January 2018: 30,019 gallons
February 2018: 28,506 gallons
March 2018: 32,007 gallons
April 2018: 45,006 gallons
May 2018: 41,519 gallons
June 2018: 40,019 gallons
July 2018: 45,527 gallons
August 2018: 43,020 gallons
September 2018: 31,522 gallons
October 2018: 62,543 gallons
November 2018: 30,015 gallons
December 2018: 32,006 gallons
Bd.’s Adjudication, 12/27/19, at 3.
In its Application, Jiffy projected that it would sell an average of 53,889
gallons of diesel fuel sales each month in 2018; 61,417 gallons per month in 2019;
54,167 gallons per month in 2020; 55,833 gallons per month in 2021; and 60,000
gallons per month in 2022. Jiffy also outlined the initiatives it had undertaken, or
was planning to undertake, to increase diesel fuel sales, which included adding new
diesel islands and canopies, advertising, applying for a sign on Interstate 80, and
adding a full-service fast food restaurant to its facility.
The Board granted Jiffy a conditional establishment license on August 15,
2018, which was the first step toward obtaining full licensure. The Board then
3
referred the Application to its Bureau of Investigations and Enforcement (Bureau)
for a full investigation of both the Application and Jiffy’s facility.
On February 13, 2019, the Bureau’s Office of Enforcement Counsel (OEC)
sent Jiffy a Notice of Recommendation of Denial (Denial Notice), in which it
objected to Jiffy’s Application and recommended that the Board deny the
Application. OEC opined that Jiffy was ineligible for a video gaming terminal
establishment license because it did not meet the Gaming Act’s definition of a “truck
stop establishment.” The Gaming Act defines a “truck stop establishment” as
follows:
A premises that:
(1) Is equipped with diesel islands used for fueling commercial motor
vehicles.
(2) Has sold on average 50,000 gallons of diesel or biodiesel fuel each
month for the previous 12 months or is projected to sell an average of
50,000 gallons of diesel or biodiesel fuel each month for the next 12
months.
(3) Has at least 20 parking spaces dedicated for commercial motor
vehicles.
(4) Has a convenience store.
(5) Is situated on a parcel of land of not less than three acres that the
truck stop establishment owns or leases.
(6) Is not located on any property owned by the Pennsylvania Turnpike.
4 Pa. C.S. § 3102 (emphasis added).
In the proceedings before the Board, the parties agreed that Jiffy met five of
the six requirements. The only requirement at issue was whether Jiffy was
4
“projected to sell an average of 50,000 gallons of diesel or biodiesel fuel each month
for the next 12 months.” Id.3 In issuing its Denial Notice, OEC stated:
According to the documents provided, [Jiffy] sold only an average of
38,745.75 gallons of diesel or biodiesel fuel per month between January
2018 and December 2018. While [Jiffy] did provide projections
regarding future biodiesel and diesel fuel sales, [it] did not provide
documentation supporting those projections[,] nor do the reasons cited
for the projected fuel sales support what would be an additional
11,524.25 gallon per month average in fuel sales.
Reproduced Record (R.R.) at 3a.4
In response to the Denial Notice, Jiffy requested a hearing before the Board’s
Office of Hearings and Appeals, which was granted. The Office of Hearings and
Appeals also granted Commonwealth Gaming permission to intervene in the matter.
Before the hearing, OEC and Jiffy stipulated to several facts, including that
“[Jiffy] projected that it would sell an average of 50,000 gallons of diesel or biodiesel
fuel [per] month for the following twelve (12) months.” R.R. at 25a.
A Hearing Officer held an evidentiary hearing on May 9, 2019. At the
hearing, Jiffy presented the testimony of its owner, Mr. Gill, and its expert witness,
Robert S. Terrill, as well as documentary evidence supporting its diesel fuel sales
projections.
3
It was also undisputed that Jiffy did not sell an average of 50,000 gallons of diesel or
biodiesel fuel each month for the prior 12 months before filing its Application.
4
In its Denial Notice, OEC also opined that Jiffy was “not suitable” for licensure because
it provided what OEC believed was “false and misleading” information in its Application. R.R. at
1a, 3a-4a. However, at the May 9, 2019 hearing, OEC’s counsel stated that OEC was no longer
pursuing that basis for denial, and Jiffy’s counsel clarified that “the definition of truck stop and
more specifically . . . the monthly gallon issue is the only factual issue before [the Hearing Officer]
today.” Notes of Testimony (N.T.), 5/9/19, at 8 (emphasis added).
5
Mr. Gill testified that he owns five gas service stations including Jiffy, which
he purchased in 2011. N.T., 5/9/19, at 20, 24. When Mr. Gill purchased Jiffy, the
facility had no diesel fuel pumps and no capacity to sell diesel fuel. Id. at 24-25.
When he initially purchased the facility, Mr. Gill increased overall sales by cleaning
up the store and moving the bathrooms to the back of the store. Id. at 25.
In April 2015, Mr. Gill installed five diesel fuel pumps with a canopy and a
new pricing sign to allow for diesel fuel sales. Id. at 26. Since then, Jiffy’s diesel
fuel sales went from zero gallons per month to approximately 40,000 gallons per
month. Id. at 27.
Mr. Gill then testified about his efforts to improve the facility and his planned
initiatives to increase diesel fuel sales to 50,000 gallons per month. Id. at 34-35.
First, Mr. Gill testified that he planned to install a 60-foot LED sign with a price
display that is visible from Interstate 80. Id. at 35. Mr. Gill stated that the
infrastructure for the sign was already in place, and he expected the new LED sign
to be active “within a month or two.” Id. at 35-36, 47. Second, Mr. Gill planned to
add a name-brand fast food restaurant to his facility, such as Krispy Krunchy
Chicken or Subway, and had already spoken with representatives from those
restaurants. Id. at 37.
Third, Mr. Gill testified that he had arranged to accept third-party credit cards
used by major trucking companies. Id. at 37-40. He was aware that, in the past,
truck drivers have parked at Jiffy’s property without purchasing fuel because Jiffy
did not accept these cards. Id. at 41. Finally, Mr. Gill testified that he was aware
that trucks are now required to use diesel exhaust fluid for environmental reasons.
Id. at 44-45. He explained, “I [had] already put the [diesel] pumps [in] before I
learned [about diesel exhaust fluid]. But now I know that . . . it is there. [R]ight
6
now . . . we are going to only put it on the side [of the pump], [as a] separate product.”
Id. at 45. Mr. Gill placed the diesel exhaust fluid in separate gallon containers next
to the diesel pumps, and truck drivers would manually add it. Id. at 152.
Mr. Gill testified that he reviewed Mr. Terrill’s expert report, agreed with Mr.
Terrill’s conclusions, and planned to implement the specific changes Mr. Terrill
recommended for increasing Jiffy’s diesel fuel sales. Id. at 46, 48. Mr. Gill believed
that by installing the 60-foot LED sign at the facility, he was “confident” that he
would achieve 50,000 gallons per month in diesel fuel sales. Id.
On cross-examination, Mr. Gill testified that, with regard to the diesel fuel
sales projections in Jiffy’s Application, he came up with those projections “on his
own,” did not consult with an expert, and did not review industry guides. Id. at 59-
60.
Jiffy also presented Mr. Terrill as an expert witness. Mr. Terrill is the
President and Chief Executive Officer of a company that conducts site feasibility
studies for gas stations and grocery stores. Id. at 89-90. Mr. Terrill testified that he
has 26 years of experience performing fuel sales projections. Id. at 127.
Mr. Terrill conducted a site feasibility study for Jiffy and prepared a written
report on April 23, 2019. Id. at 110; see R.R. at 464a-82a. According to Mr. Terrill,
Jiffy has one of the highest truck counts in the country, with approximately 14,000
trucks passing the interchange each day. N.T., 5/9/19, at 111. Mr. Terrill testified
when he reviewed the traffic counts for the highways where Jiffy is located, he
believed that “the opportunity is there. The potential is there. We just have to get a
facility that’s going to . . . draw in more trucks.” Id. at 111-112.
As part of his feasibility study, Mr. Terrill recommended that Jiffy undertake
specific initiatives to increase its diesel fuel sales. First, Mr. Terrill testified that
7
Jiffy should accept major third-party credit cards and notify trucking companies that
Jiffy accepts such cards, because all major trucking companies use these cards. Id.
at 112-14.
Next, Mr. Terrill testified that Jiffy should install the 60-foot LED sign on
Interstate 80. According to Mr. Terrill, having an LED sign visible from Interstate
80 will attract additional truck drivers. Id. at 141-42. Mr. Terrill believed that
installing the new LED sign would increase Jiffy’s fuel sales by 5%. Id. at 142.
Mr. Terrill also testified that Jiffy should add a major fast food franchise and
include the franchise’s logo on the new LED sign. Id. at 146-47. He believed that
Jiffy’s sales would increase by 5% “just by [potential customers] knowing [Jiffy]
has food available.” Id. at 146. Specifically, Mr. Terrill testified that if Mr. Gill
added a Krispy Krunchy Chicken franchise, traffic should increase by 5%; if he
added a Subway franchise, traffic should increase by 25%. Id. at 148-49.
Mr. Terrill also recommended that Jiffy install diesel exhaust fluid hoses to
its existing diesel fuel islands. Id. at 151. Mr. Terrill testified that all trucks
manufactured after 2011 – about 40% of trucks on the road – are required to use
diesel exhaust fluid. Id. at 151-53. Mr. Terrill stated that Mr. Gill “missed [doing
that] initially, due to his inexperience with truck stops.” Id. at 151. Mr. Terrill
believed that adding diesel exhaust fluid hoses to Jiffy’s existing diesel islands
would help Jiffy “level [the] playing field” and allow Jiffy to better compete with
other major truck stops. Id. at 154.
Finally, Mr. Terrill recommended that Jiffy pave at least one acre of its
existing parking lot. Id. Mr. Terrill testified that several trucking companies do not
allow their trucks to park on unpaved lots. Id. at 155. Mr. Terrill believed that if
Mr. Gill paved the parking lot, truck drivers would be more inclined to spend the
8
night there, and if they see that Jiffy accepts third-party credit cards, they will be
more inclined to purchase fuel. Id.
According to Mr. Terrill, if Mr. Gill implements his recommendations, Jiffy’s
diesel fuel sales should increase to at least 53,000 gallons per month by the end of
2019. Id. at 158. Mr. Terrill testified that Jiffy could reach 125,000 gallons per
month within one year of implementing his recommendations. Id. at 187-88. Mr.
Terrill further opined that Jiffy’s initial projection that it would average more than
50,000 gallons of diesel fuel sales each month was “reasonable and accurate.” Id. at
157. This testimony was consistent with Mr. Terrill’s written report, in which he
concluded: “Based on existing operations and site conditions [at Jiffy’s facility],
and recent improvements, it is my opinion that even without any substantial
additional changes, the existing facility will easily surpass an average of 50,000
gallons of diesel fuel sales per month.” R.R. at 466a.
On September 26, 2019, the Hearing Officer issued her Report to the Board,
outlining the evidence presented and the parties’ respective positions. After
reviewing the Hearing Officer’s Report and the evidentiary record, the Board
addressed this matter at a public meeting on October 30, 2019.
On October 31, 2019, the Board voted unanimously to deny OEC’s
Recommendation of Denial, thereby granting Jiffy full licensure as a truck stop
establishment under the Gaming Act. However, the Board stated that “[s]aid
licensure is subject to [Jiffy] demonstrating substantial compliance with the
recommendations of its expert, Robert S. Terrill.” Bd.’s Order, 10/31/19, at 1
(emphasis added). Specifically, the Board directed that Jiffy substantially comply
with the following six conditions recommended by Mr. Terrill:
9
• Accept major third-party fleet credit cards used by trucking
companies;
• Contact the traffic managers of major trucking companies to let
them know that the truck stop accepts the major fleet cards and
ask to be placed on the companies’ preferred vendor lists;
• Install a 60-foot LED sign visible from Interstate 80;
• Add a name-brand fast food restaurant and include the
restaurant’s logo on the LED sign;
• Add diesel exhaust fluid hoses to the diesel fuel island; and
• Pave at least one acre of the parking lot to allow for
approximately 25 trucks.
Id.
On November 26, 2019, Jiffy appealed to this Court from the Board’s October
31, 2019 Order.5 On December 27, 2019, the Board issued an Adjudication in
support of its October 31, 2019 Order. In its Adjudication, the Board found that
“Mr. Terrill’s testimony [was] credible and that through [his testimony], [Jiffy]
presented a clear and convincing case that it will exceed the 50,000-gallon threshold
after complying with the initiatives outlined by Mr. Terrill.” Bd.’s Adjudication,
12/27/19, at 14 (emphasis added). The Board then explained:
Section 3301(b)(3) of the [Gaming] Act also gives the Board[]
the “power and the duty. . . [a]t its discretion, to award, revoke, suspend,
condition or deny issuance or renewal of establishment licenses.” 4
Pa.[]C.S. § 3301(b)(3) (emphasis added). In addition, [Section
3514(d)(3) of the Gaming Act,] 4 Pa.[]C.S. § 3514(d)(3)[,] provides
5
Our review of the Board’s Order is limited to determining whether constitutional rights
were violated, whether the Board committed an error of law, and whether the Board’s necessary
findings of fact are supported by substantial evidence. Keystone Redev. Partners, LLC v Pa.
Gaming Control Bd., 5 A.3d 448, 456 n.10 (Pa. Cmwlth. 2010).
10
that the Board “may approve” an application for an establishment
license subject to “[o]ther conditions established by the [B]oard.”
Since [Jiffy] has a continuing obligation to maintain eligibility, and
because [Mr. Gill] committed on the record under oath to implement
the recommendations, the Board believes it is prudent and necessary to
impose these conditions, consistent with [Jiffy’s] expert’s
recommendations, to ensure that [Jiffy] remains eligible. The Board’s
finding that [Jiffy] is projected to sell more than 50,000 gallons of
diesel or biodiesel fuel each month in the following 12 months is
dependent upon [Jiffy] implementing the initiatives recommended by
Mr. Terrill. Accordingly, the Board shall require, as a part of its
[L]icense, that [Jiffy] substantially comply with Mr. Terrill’s
initiatives.
Id. at 14-15 (third emphasis added).
On January 24, 2020, Jiffy appealed to this Court from the December 27, 2019
Adjudication. This Court consolidated the appeals for disposition.
Issues
(1) Is the Board’s December 27, 2019 Adjudication an appealable order?
(2) Was the Board required to accept Jiffy’s initial diesel fuel sales
projections stated in its Application, where Jiffy subsequently provided evidence and
expert testimony establishing the validity of such projections?
(3) Does the Board’s October 31, 2019 Order conflict with the language of
the Gaming Act and the Board’s regulations, where they do not: (a) provide any
criteria for the review of an applicant’s future fuel sales projections; (b) allow the
Board to reject an applicant’s future fuel sales projections; or (c) authorize the Board
to impose conditions that are not found in the Gaming Act in determining an
applicant’s eligibility for licensure as a truck stop establishment?
(4) Was the Board’s October 31, 2019 Order granting Jiffy’s License
subject to conditions supported by substantial evidence, where the evidence
11
established that Jiffy met the statutory and regulatory requirements for full licensure
as a truck stop establishment under the Gaming Act without conditions?
Analysis
1. Appealability of the Board’s December 27, 2019 Adjudication
Preliminarily, we must address the appealability of the Board’s December 27,
2019 Adjudication.
On November 26, 2019, Jiffy filed a Petition for Review of the Board’s
October 31, 2019 Order granting Jiffy’s License, subject to the six conditions
outlined in the Order. This appeal is docketed at 1661 C.D. 2019.
On January 24, 2020, Jiffy filed a Petition for Review of the Board’s
December 27, 2019 Adjudication. This appeal is docketed at 58 C.D. 2020.
However, the December 27, 2019 Adjudication is actually an opinion explaining the
legal rationale for the Board’s October 31, 2019 Order. The Adjudication includes
findings of fact and conclusions of law, but does not itself contain an order from
which Jiffy could have appealed. At the conclusion of the Adjudication, the Board
merely restates the disposition and conditions included in its prior Order.
In its Petition for Review at 58 C.D. 2020, Jiffy contends that the Board lacked
jurisdiction to issue the December 27, 2019 Adjudication because: (i) it was issued
after the record was closed and jurisdiction had been vested in this Court by the filing
of the Petition for Review at 1661 C.D. 2019; and (ii) the Board’s rules do not allow
it to issue an Adjudication after it has already issued a final order.6
The Board’s regulations define a “final order” as “[a]n action by the Board
which approves, issues, renews, revokes, suspends, conditions, denies issuance or
In its appellate brief, Jiffy states that it “filed the second [P]etition [for Review] out of an
6
abundance of caution, as it is not clear whether the [Board’s October 31, 2019] Order or the
[December 27, 2019] Adjudication constituted a final, appealable order.” Jiffy’s Br. at 9 n.2.
12
renewal of a license, permit, certification or registration.” 58 Pa. Code § 401a.3.
Thus, it is clear that the October 31, 2019 Order granting Jiffy’s License subject to
conditions was a final, appealable order. See 4 Pa. C.S. § 3304; Pa. R.A.P. 341(a).
The Board’s December 27, 2019 Adjudication, however, was not an “order,”
nor did it amend or modify the Order already entered. Rather, the Adjudication
provided the Board’s rationale for issuing the October 31, 2019 Order. In its
Adjudication, the Board stated that after the October 30, 2019 public meeting, “the
Board voted unanimously to deny OEC’s Recommendation of Denial and grant
[Jiffy] a license subject to 6 conditions, which were outlined in the Board’s Order.
This Adjudication provides the basis for the Board’s decision.” Bd.’s Adjudication,
12/27/19, at 1-2 (emphasis added).
Pa. R.A.P. 1701(b)(1) provides that “[a]fter an appeal is taken or review of a
quasijudicial order is sought,” a government agency, such as the Board, “may . . .
take other action permitted or required by these rules or otherwise ancillary to the
appeal or petition for review proceeding.” Further, Pa. R.A.P. 1951(c) requires a
government agency to comply with Pa. R.A.P. 1925 by issuing an opinion or
statement of reasons in support of a quasijudicial order.
We conclude that the Board’s December 27, 2019 Adjudication was not an
appealable order, but the equivalent of an opinion in support of its prior Order
pursuant to Pa. R.A.P. 1925. In addition to making findings of fact and conclusions
of law in support of its prior Order, the Board reiterated that it was granting Jiffy’s
License subject to its substantial compliance with the same six conditions outlined
in its prior Order. Bd.’s Adjudication, 12/27/19, at 14. Therefore, to the extent the
December 27, 2019 Adjudication provides the Board’s reasons for granting Jiffy’s
License subject to conditions, we consider the Adjudication in conjunction with the
13
appeal docketed at 1661 C.D. 2019 and dismiss the appeal docketed at 58 C.D. 2020
as duplicative.
2. The Board’s Rejection of Jiffy’s Initial Projections
First, Jiffy contends that the Board lacked authority to reject Jiffy’s initial
diesel fuel sales projections outlined in its Application. Jiffy argues that the Board
should have accepted Mr. Gill’s projected diesel fuel sales included in the
Application. According to Jiffy, the Gaming Act expressly allows for projections
and does not permit the Board to reject an applicant’s projections. In effect, Jiffy
contends that the Gaming Act’s requirement that an establishment be “projected to
sell an average of 50,000 gallons of diesel or biodiesel fuel each month for the next
12 months,” 4 Pa. C.S. § 3102, should be construed to mean that an applicant need
only aver that it will meet this threshold to establish its eligibility for an
establishment license. We disagree.
Contrary to Jiffy’s contention, the Board is not required to simply accept an
applicant’s assertion that it meets the eligibility requirements for an establishment
license. The Board’s regulations clearly place the burden on the applicant to prove
its eligibility. See 58 Pa. Code § 421a.l(h) (stating that “[a]n applicant shall at all
times have the burden of proof”) (emphasis added). Moreover, under the Gaming
Act, an applicant for an establishment license “shall continue to provide information
required by the [B]oard or the [B]ureau and cooperate in any inquiry or
investigation” while its application is pending. 4 Pa. C.S. § 3514(c) (emphasis
added). The Gaming Act further states that “[n]othing contained in [the Gaming
Act] is intended or shall be construed to create an entitlement to a license.” Id. §
3516(a)(2). These provisions demonstrate that, once Jiffy’s eligibility was
14
questioned by the OEC, Jiffy was no longer permitted to rely on the averments in its
Application.
Notably, when OEC objected to Jiffy’s initial diesel fuel sales projections as
being unsupported by any documentation, Jiffy did not simply allow the Board to
consider the matter based on Mr. Gill’s initial estimates. Instead, Jiffy requested a
hearing and retained Mr. Terrill as an expert witness. Mr. Terrill prepared an expert
report and offered detailed testimony regarding Jiffy’s projected diesel fuel sales,
including the steps he believed Jiffy needed to take to “sell an average of 50,000
gallons of diesel fuel each month for the next 12 months” as required by the Gaming
Act. The Board then relied on Mr. Terrill’s expert testimony in granting Jiffy’s
License with conditions, which was within its authority under the Gaming Act. See
4 Pa. C.S. § 3301.
We agree with the Board that if the Board were required to simply accept
projections submitted by an applicant, with no evidence or other documentation to
support such projections, it would lead to an incongruous result. Such an
interpretation would effectively allow an applicant to simply state in its application
that it is projected to sell 50,000 gallons per month in the next 12 months, with no
factual basis for making such a projection.
Moreover, in this case, the record shows that Mr. Gill’s projections for 2018
and early 2019 were not accurate. Mr. Gill had attested in his Application that Jiffy
would average 50,000 gallons of diesel fuel sales per month for the years 2018
through 2022. N.T., 5/9/19, at 58. However, in 2018, Jiffy sold an average of only
38,475.75 gallons per month. Id. at 55. In the first quarter of 2019, Jiffy sold an
average of only 38,251 gallons per month. Id. at 56-57. Mr. Gill testified that
“[f]rom . . . March through September is the busiest [time]. We . . . probably do
15
50,000 [gallons] in a month on those months.” Id. at 57. Yet in March 2019, Jiffy
sold 41,023 gallons, and in April 2019, Jiffy sold 41,013 gallons. Id. Finally, Mr.
Gill admitted that he came up with his diesel fuel sales projections “on his own,” did
not consult an expert in making those projections, and did not review industry guides
before making those projections. Id. at 59-60.
Jiffy also asserts that the Board erred in rejecting Mr. Gill’s initial fuel sales
projections because Mr. Terrill ultimately opined that they were “reasonable and
accurate.” Id. at 157. However, Mr. Terrill qualified his response by stating, “I
believe that with the first three things I mentioned, [Jiffy] should go up to at least
53,000 gallons [per] month . . . by the end of [2019].” Id. at 158. Mr. Terrill later
explained that by “three things,” he was referring to installing the 60-foot LED sign,
accepting third-party credit cards, contacting trucking companies about the
acceptance of such cards, and placing the fast food restaurant logo on the LED sign.
Id. at 188.
We conclude that the Board did not err in rejecting Jiffy’s initial diesel fuel
sales projections in its Application and relying instead on Jiffy’s evidence, and
particularly its expert’s testimony, presented at the hearing.
3. The Board’s Authority to Impose Conditions
Next, Jiffy contends that the Board lacked authority to impose conditions on
Jiffy’s License because the Gaming Act requires only that an applicant provide a
“projection” of future diesel fuel sales. In essence, Jiffy argues that, as long as an
applicant avers that it satisfies the requirements for a “truck stop establishment”
specified in the Gaming Act, the Board must grant an establishment license without
conditions. We disagree.
16
Jiffy’s argument is plainly inconsistent with the language of the Gaming Act,
which states that the Board “shall have sole regulatory authority over every aspect
of the conduct of video gaming.” 4 Pa. C.S. § 3301(a)(l) (emphasis added). The
Gaming Act specifically authorizes the Board to impose conditions on an
establishment license. Section 3301(b)(3) provides that the Board “shall have
discretion[] to award, revoke, suspend, condition or deny issuance or renewal of
establishment licenses.” Id. § 3301(b)(3) (emphasis added). Likewise, Section
3514(d)(3) provides that after being satisfied that the applicant has met the “general
requirements” for an establishment license, “the [B]oard may approve the
application and issue the applicant an establishment license consistent with . . .
[o]ther conditions established by the [B]oard.” Id. § 3514(d)(3) (emphasis added).
Further, Section 3516(a)(1) states that any truck stop establishment “that the [B]oard
approves as qualified to receive a license . . . shall be issued a license or permit upon
payment of [the required] fee . . . and upon the fulfillment of conditions required by
the [B]oard or provided for in this part.” Id. § 3516(a)(l) (emphasis added). These
provisions clearly give the Board the authority to impose conditions, at its discretion,
on an eligible truck stop establishment. Therefore, we reject Jiffy’s claim that the
Board was not authorized to impose conditions on Jiffy’s License.
4. The Board’s Interpretation of the Gaming Act and its Regulations
Jiffy argues that the Gaming Act only requires that an applicant attest that it
“is projected to sell” an average of 50,000 gallons of diesel fuel per month in the
next 12 months. 4 Pa. C.S. § 3102. Jiffy claims that the Board exceeded its authority
by adding new requirements, not present in the Gaming Act, that an applicant must:
(1) submit evidence that its diesel fuel sales projections were “based on a current
17
trend” or “calculated from information already known”; and (2) prove the validity
of its projections by clear and convincing evidence.7
First, we address the Board’s interpretation of the term “projection” in the
Gaming Act’s definition of “truck stop establishment.” The Board began its analysis
by recognizing that the Gaming Act itself does not define the term “projection.” The
Board explained:
The term, [“]projection,[”] is not defined in the [Gaming] Act;
therefore, rules of statutory construction require looking at the
“common and approved” meaning. [Section 1903 of the Statutory
Construction Act of 1972,] 1 Pa.[]C.S. § 1903(a). The common and
approved meaning can be found in the dictionary definition of
“projection.” See Therres v. Zoning Hearing Bd. of Borough of Rose
Valley, 947 A.2d 226, 230 (Pa. [Cmwlth.] 2008) (stating that
“Pennsylvania courts generally use dictionaries as source material to
determine the common and approved usage of terms not defined in
statutes”). The Merriam-Webster dictionary definition of “projection”
is, “an estimate of future possibilities based on a current trend.” The
Cambridge Dictionary defines “projection” as “an amount or result
expected in the future that is calculated from information already
known.” These definitions suggest that for an estimate to be considered
a projection, it must be based on a current trend or a calculation from
information already known.
Bd.’s Adjudication, 12/27/19, at 9-10 (some citations omitted) (emphasis in
original).
7
In its appellate brief, Jiffy also argues that by interpreting the Gaming Act and its
regulations in this manner, the Board violated the Commonwealth Documents Law by creating a
de facto regulation without following the proper rulemaking process. However, Jiffy did not raise
this issue in either of its Petitions for Review filed with this Court. Although the first Petition for
Review was filed before the Board issued its Adjudication explaining the legal rationale for its
prior Order, the second Petition for Review was filed after the Board’s Adjudication. Because
Jiffy raised this issue for the first time in its appellate brief, we conclude that it is waived. See Pa.
R.A.P. 1513; Mostatab v. State Bd. of Dentistry, 881 A.2d 1271, 1273 (Pa. Cmwlth. 2005).
18
Generally, when a statute’s language is ambiguous, a reviewing court must
give deference to the government agency’s interpretation. Scanlon v. Dep’t of Pub.
Welfare, 739 A.2d 635, 638 (Pa. Cmwlth. 1999). However, the Pennsylvania
Supreme Court recently addressed the issue of an appellate court’s deference to
agency interpretations of statutes as follows:
It is clear that one of the factors to be considered when ascertaining the
intent of the General Assembly with regard to the meaning of statutory
language is any “[l]egislative and administrative interpretations of
such statute.” 1 Pa.C.S. § 1921(c)(8). This Court has held “[a]n
interpretation by the agency charged with the administration of a
particular law is normally accorded deference, unless clearly
erroneous.” Harkness v. [Unemployment Comp. Bd. of Review], . . .
920 A.2d 162, 171 ([Pa.] 2007). Moreover, since Harkness, we have
described two types of agency interpretations which are accorded
different levels of deference. Agency interpretations that are
promulgated in published rules and regulations have been referred to as
“legislative rules” and “are accorded a particularly high measure of
deference[,]” . . . and “enjoy a presumption of reasonableness[.]” Non-
legislative rules, also known as “interpretive rules” or “guidance
documents,” such as “manuals, interpretive memoranda, staff
instructions, policy statements, circulars, bulletins, advisories, [and]
press releases” are accorded “a lesser quantum of deference[,]” . .
.which allows an agency’s interpretation to be disregarded when a court
is “‘convinced that the interpretative regulation adopted by an
administrative agency is unwise or violative of legislative intent.’”
Notably, although we have considered these varied situations where
agency interpretations inform our statutory construction analysis, and
have ascribed some measure of value to those interpretations under
certain circumstances, we have never held the agency’s opinion is
binding on this Court, and of course it is not. Indeed, we have declined
to accord any deference to an agency’s interpretation of a statute where
“there is nothing in the record indicating that the [agency] had
considered and decided [the] issue at a point prior to the instant
litigation.” As the [Unemployment Compensation Board [of Review]
has never formally explained its view of the meaning of the word
“during” in Section 402.6 [of the Unemployment Compensation Law,
19
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as
amended, added by the Act of October 30, 1996, P.L. 738, 43 P.S. §
802.6,] prior to the instant litigation, we agree with appellant that the
Commonwealth Court erred in according any deference to the
[Unemployment Compensation Board of Review’s] arguments
contained in litigation-related filings.
Harmon v. Unemployment Comp. Bd. of Review, 207 A.3d 292, 299 (Pa. 2019)
(footnotes and some citations omitted) (emphasis added); see also Malt Beverages
Distribs. Ass’n v. Pa. Liquor Control Bd., 974 A.2d 1144, 1154 (Pa. 2009) (declining
to defer to the agency’s “hyper-technical” interpretation of a statutory provision
where “there [was] nothing in the record indicating that the [agency] had considered
and decided th[at] issue at a point prior to” the appeal).
Here, the Board did not elucidate its position regarding the meaning of
“projection” at any time before Jiffy filed its Petition for Review of the October 31,
2019 Order. The first time the Board proffered its interpretation was in its December
27, 2019 Adjudication. Consequently, under Harmon, we are not required to defer
to the Board’s interpretation of “projection” and will conduct our own analysis.8
The Gaming Act does not define the word “projection.” Section 1903(a) of
the Statutory Construction Act of 1972 provides that when words in a statute are
undefined, they must be accorded “their common and approved usage.” 1 Pa. C.S.
§ 1903(a). “Where a court needs to define an undefined term, it may consult
definitions in statutes, regulations or the dictionary for guidance, although such
definitions are not controlling.” Adams Outdoor Advert., LP v. Zoning Hearing Bd.
of Smithfield Twp., 909 A.2d 469, 483 (Pa. Cmwlth. 2006).
8
With respect to questions of statutory interpretation, our standard of review is de novo,
and our scope of review is plenary. Chamberlain v. Unemployment Comp. Bd. of Review, 114
A.3d 385, 394 n.8 (Pa. 2015).
20
As the Board correctly noted, Merriam-Webster Dictionary defines
“projection,” in pertinent part, as “an estimate of future possibilities based on a
current trend.” https://www.merriam-webster.com/dictionary/projection (last
visited July 6, 2020) (emphasis added). This is the common and understood meaning
of the word “projection” as used in this context. Thus, we conclude that the Board
correctly applied this definition when it required Jiffy to demonstrate that its fuel
sales projections were based on a current trend.
As noted earlier, Jiffy, as the applicant, had the burden of proving its eligibility
for an establishment license. See 58 Pa. Code § 421a.l(h). That included showing
that it “is projected to sell an average of 50,000 gallons of diesel or biodiesel fuel
each month for the next 12 months.” 4 Pa. C.S. § 3102. It was not unreasonable for
the Board to require Jiffy to provide an evidentiary basis to establish that its
estimated fuel sales for the following 12 months were “based on a current trend.”
See id. § 3514(c) (stating that an applicant for an establishment license “shall
continue to provide information required by the [B]oard or the [B]ureau and
cooperate in any inquiry or investigation” while its application is pending). Jiffy
provided that evidentiary basis with Mr. Terrill’s report and testimony, which the
Board accepted and credited.
Next, we address Jiffy’s contention that the Board applied an incorrect
standard of proof in determining its eligibility for an establishment license.
Specifically, Jiffy contends that the Board should have applied a preponderance of
the evidence standard, rather than a clear and convincing evidence standard. We
disagree.
In finding that a clear and convincing evidence standard applied, the Board
applied and interpreted its regulation at 58 Pa. Code § 421a.1, which provides:
21
(h) An applicant shall at all times have the burden of proof. It shall be
the applicant’s affirmative responsibility to establish the facts
supporting its suitability under the act and this part by clear and
convincing evidence, including why a license, permit, certification,
registration or authorization should be issued or renewed by the Board.
(i) A person holding a license, permit, certification, registration or
authorization issued by the Board shall have a continuing duty to
maintain suitability and eligibility in accordance with the act and this
part.
58 Pa. Code § 421a.1(h)-(i) (emphasis added).
The Board determined that the intent of this regulation was to apply a clear
and convincing evidence standard to an applicant’s suitability and eligibility for a
license. Although subsection (h) of the regulation specifically references
“suitability,” it goes on to state that an applicant must provide “clear and convincing
evidence . . . [as to] why a license, permit, certification, registration or authorization
should be issued or renewed by the Board.” Id. § 421a.1(h) (emphasis added).
Subsection (i) of the regulation states that a licensee has “a continuing duty to
maintain suitability and eligibility in accordance with the [Gaming A]ct and this
part.” Id. § 421a.1(i) (emphasis added). Reading these subsections together and in
conjunction with the Gaming Act’s requirements, the Board concluded that “the
intent [of the regulation] is to create an obligation for applicants to provide clear and
convincing evidence as to any issue relating to why a license should be issued,
including the establishment’s statutory eligibility.” Bd.’s Adjudication, 12/27/29, at
11 (emphasis added).
It is well settled that the Board’s “interpretation of its own . . . regulations
must be given considerable weight and deference.” DeNaples v. Pa. Gaming
Control Bd., 178 A.3d 262, 270 (Pa. Cmwlth. 2018). Giving substantial weight and
deference to the Board’s interpretation of its regulation, we agree with the Board
22
that, under 58 Pa. Code § 421a.1(h), an applicant must establish by “clear and
convincing evidence . . . why a license should be issued by the Board,” which
necessarily includes eligibility. The Board’s interpretation is supported by the plain
language of the regulation.
In any event, even applying the stricter standard, the Board still concluded
that Jiffy satisfied its burden of proof and granted Jiffy’s License. The Board found
that “Mr. Terrill’s testimony provided clear and convincing evidence that [Jiffy] is
projected to sell more than 50,000 gallons of diesel fuel after implementing the
initiatives Mr. Gill has committed to and already begun implementing.” Bd.’s
Adjudication, 12/27/19, at 12. We find no error in this conclusion.
5. Substantial Evidence to Support the Board’s Order
Finally, Jiffy asserts that the Board’s October 31, 2019 Order is unsupported
by substantial evidence. Jiffy contends that although the Board concluded that Jiffy
“met its burden of proving that it qualifies as a truck stop establishment,” it ordered
Jiffy to make significant capital improvements to maintain its License. According
to Jiffy, these additional requirements for licensure are inconsistent with the Gaming
Act and the evidence presented at the hearing. We disagree.
This Court has defined substantial evidence as such “relevant evidence upon
which a reasonable mind could base a conclusion.” MKP Enters., Inc. v.
Underground Storage Tank Indemnification Bd., 39 A.3d 570, 579 (Pa. Cmwlth.
2012). Resolution of evidentiary conflicts, witness credibility, and evidentiary
weight are matters within the Board’s discretion. Kiskadden v. Pa. Dep’t of Envtl.
Prot., 149 A.3d 380, 387 (Pa. Cmwlth. 2016) (en banc). In deciding whether
substantial evidence exists, “[i]t is irrelevant whether the record contains evidence
to support findings other than those made by the fact-finder; the critical inquiry is
23
whether there is evidence to support the findings actually made.” Ductmate Indus.,
Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
We conclude that the Board’s decision to require Jiffy’s “substantial
compliance” with the conditions outlined in its October 31, 2019 Order is supported
by the testimony of both Mr. Gill and Mr. Terrill. The Board explained its reasoning
as follows:
Since [Jiffy] has a continuing obligation to maintain eligibility [for an
establishment license], [see 58 Pa. Code § 421a.1(i),] and because [Mr.
Gill] committed on the record under oath to implement the
recommendations, the Board believes it is prudent and necessary to
impose these conditions, consistent with [Jiffy’s] expert’s
recommendations, to ensure that [Jiffy] remains eligible.
Bd.’s Adjudication, 12/27/19, at 14-15.
The Board’s conditions are entirely consistent with Mr. Terrill’s testimony.
Mr. Terrill testified that, even if Jiffy implemented only 4 of the 6 initiatives, Jiffy
would increase its diesel fuel sales to more than 50,000 gallons per month by the end
of 2019. N.T., 5/9/19, at 158. When asked “what minimum things” Mr. Gill needed
to do to “get to 50,000 gallons [per month],” Mr. Terrill replied:
Well, I think minimally . . . he needs to . . . get more aggressive . . . with
pursuing the . . . National Account Diesel customers, through . . . the
[third-party credit] cards and getting the . . . card[s] [and] . . . contacting
different trucking companies.
And then the second thing he needs to do . . . is get the [LED] sign up,
get the high rise sign up.
And then the third thing he needs to do is get a food tag on the exit logo
signage, so that people know that he has food available.
24
Id. at 188. Thus, it was reasonable for the Board to order “substantial compliance”
with Mr. Terrill’s recommendations.
Jiffy contends that the Board “ignored” Mr. Terrill’s opinion in his report that
“even without any substantial additional changes, [Jiffy’s] existing facility will
easily surpass an average of 50,000 gallons of diesel fuel sales per month.” R.R. at
466a. However, Mr. Terrill acknowledged both in his report and at the hearing that
Mr. Gill had begun to undertake several of Mr. Terrill’s suggested measures to
increase diesel fuel sales before he offered that opinion. Mr. Terrill spent a
considerable amount of time discussing Mr. Gill’s recent and planned initiatives to
increase diesel fuel sales in the coming months. This explains why Mr. Gill opined
that Jiffy could likely meet its 50,000-gallon-per-month projections “without
substantial additional changes.” Id. (emphasis added).
Furthermore, despite Jiffy’s suggestion that the Board’s conditions are
unreasonable, Mr. Gill testified that, at the time of the hearing, he had already taken
steps toward implementing several of the conditions – namely, installing a 60-foot
LED sign on Interstate 80, accepting third-party credit cards, speaking with major
fast food franchises about adding a restaurant, and adding diesel exhaust fluid to the
diesel pump area. N.T., 5/9/19, at 35-45. He further testified that he reviewed Mr.
Terrill’s expert report, agreed with Mr. Terrill’s conclusions, and planned to
implement the specific changes Mr. Terrill recommended for increasing diesel fuel
sales. Id. at 46, 48. Significantly, Mr. Gill did not indicate that he believed any of
those measures were unreasonable or imposed an undue hardship on him or his
business.
In light of Mr. Gill’s testimony, it appears that the only condition to which
Jiffy objects is paving a one-acre section of the parking lot to accommodate long-
25
term truck parking. We note, however, that “substantial compliance” with the
Board’s conditions does not mean full compliance. As the Board points out in its
appellate brief, if Mr. Gill opts not to implement one of the enumerated initiatives
(such as paving the parking lot) for financial or other reasons, “the Board is not
compelling him to do so.” Bd.’s Br. at 39.
Contrary to Jiffy’s contention on appeal, the Board did not ignore Mr. Terrill’s
testimony. Rather, the Board gave deference to his opinions, found his testimony
credible, and chose to require “substantial compliance” with his recommended
initiatives, which Mr. Terrill opined would help Jiffy increase its diesel fuel sales to
the 50,000-gallon-per-month average required by the Gaming Act. Therefore, we
conclude that the record contains substantial evidence to support the Board’s Order.
Conclusion
Accordingly, we affirm the Board’s October 31, 2019 Order and dismiss
Jiffy’s appeal from the December 27, 2019 Adjudication.
__________________________________
ELLEN CEISLER, Judge
Judge Crompton did not participate in the decision of this case.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jiffy Mini Mart, Inc. and :
Commonwealth Gaming LLC, :
Petitioners :
:
v. : No. 1661 C.D. 2019 and
: No. 58 C.D. 2020
Pennsylvania Gaming Control :
Board, :
Respondent :
ORDER
AND NOW, this 7th day of July, 2020, the October 31, 2019 Order of
Pennsylvania Gaming Control Board is hereby AFFIRMED. The appeal docketed
at 58 C.D. 2020 is hereby DISMISSED.
__________________________________
ELLEN CEISLER, Judge