PITTSBURGH – A Whitehall Borough store owner’s lawsuit alleging that local policy towards skill machines and mechanical device licenses is being selectively enforced against him in violation of state and federal law, will now be heard in a Pennsylvania federal court.
Dhari Dhital first filed suit in the Allegheny County Court of Common Pleas on Sept. 17 versus Whitehall Borough, Police Chief Jason Gagorik and Officer Braden Seese. All parties are of Pittsburgh.
“Pursuant to the Whitehall Borough Code, Section 68.4, all applications for mechanical device licenses must be submitted in writing to Chief Gagorik. On information and belief, all applications for mechanical device licenses are then reviewed by Officer Seese, who is responsible for determining whether those applications are proper under the Borough Code,” the suit said.
“On July 29, 2021, Plaintiff submitted an application for a mechanical device license to Whitehall. Plaintiff was requesting a license to install and utilize a legal Pennsylvania skill machine in his store located at 1406 Radford Road, Pittsburgh PA 15227. The application and the information therein complied in all respects with the Borough Code.”
However, the suit added Officer Seese contacted the Plaintiff and informed him that, while he understands that skill machines are legal in Pennsylvania and are not “gambling devices”, that the plaintiff’s device license application was denied because it was the “policy” of Whitehall not to issue licenses for mechanical devices that award cash prizes.
Despite Officer Seese’s statement, the plaintiff then received a letter dated Aug. 5, 2021, stating that the license application was merely being returned because the plaintiff failed to identify the machine and serial number, despite the fact that a Whitehall police officer had previously inspected the very same machine. Subsequently, Dhital then resubmitted the license application, identifying the machine and serial number.
“On Aug. 23, 2021, plaintiff then received a letter denying his application request which contends that (1) the plaintiff’s machine is an illegal gambling device pursuant to 18 Pa.C.S. Section 5513 and that (2) the machine does not comply with the code because it awards prizes. The Borough Code, Section 68.5B, requires both that (1) the mechanical device at issue is not a gambling device and (2) that it ‘shall not award any prize or free games for anyone using that device.’ The rules of statutory construction require that both elements be met in order for a device not to comply with the Borough Code,” the suit stated.
“As an initial matter, as Officer Seese admitted to plaintiff, Pennsylvania courts have previously decided that the machine at issue is not an illegal gambling device and is instead a legal machine of skill. In addition, Mr. Seese admitted that, inapposite to the plain language of the Borough Code, it was instead the ‘policy’ of Whitehall to permit machines that award prizes, as long as those prizes were not cash prizes. As such, defendants are engaged in selective enforcement of the Borough Code that is in derogation of the law as written and is instead based on its own unwritten ‘policy.”
UPDATE
The defendants filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on Oct. 5.
“Plaintiff’s complaint, asserts claims against the defendants, under 42 U.S.C. Section 1983, for alleged violations of plaintiff’s ‘freedom and liberties, their right to free association, their economic freedom and ability to produce income, and a violation of their right to equal protection under the law, as protected by the Fourteenth Amendment to the Constitution of the United States,” the removal notice stated.
“Plaintiff further alleges that ‘defendants conduct, policies, practices and procedures resulted in a deprivation of plaintiff’s freedom and 1iberties, their right to free association, their economic freedom and ability to produce income and a violation of their right to equal protection under the law, as protected by the Fourteenth Amendment to the Constitution of the United States.”
For two counts of violating equal protection rights under the Fourteenth Amendment to the U.S. Constitution, the plaintiff is seeking the following reliefs:
• That the Court either (1) declare that a mechanical device license should be issued to plaintiff forthwith and/or;
• That the Court (2) enjoin the defendants from selectively enforcing the Borough Code against plaintiff and permit the placement and use of the plaintiff’s Pennsylvania skill machine in his store located at 1406 Radford Road, Pittsburgh PA 15227 during the pendency of this action, and;
• That the Court (3) award plaintiff damages in excess of the arbitration limits of Allegheny County, plus attorney’s fees, costs and any other relief this Court deems appropriate.
The plaintiff is represented by Joshua A. Lyons of Maurice A. Nernberg & Associates, in Pittsburgh.
The defendants are represented by J. Andrew Salemme of Tucker Arensberg, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-01329
Allegheny County Court of Common Pleas case GD-21-011353
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com