PITTSBURGH – A Whitehall Borough store owner who claimed that local policy towards skill machines and mechanical device licenses was being selectively enforced against him in violation of state and federal law, has dismissed his case.
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.”
The defendants filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on Oct. 5, then filed an answer to the complaint on Nov. 12, charging that the plaintiff’s due process rights were not violated due to his not being extended an operating license.
“Plaintiff has no substantive due process right to obtain a gaming device license. To state a substantive due process claim under Section 1983, ‘a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies.’ In the instant case, plaintiff has not been deprived of any constitutional protected property interest. Because there is no fundamental constitutional right to obtain a gaming device license, plaintiff’s substantive due process claim pertaining to economic freedom and ability to produce income necessarily fails,” the answer stated.
According to the defendants, the actions of Whitehall Borough did not “shock the conscience.”
“Even if plaintiff could establish a substantive due process right, which he cannot, the Borough’s denial of his license does not rise to the level of conscience-shocking behavior – a necessary element for his claim. Plaintiff’s complaint alleges that Officer Seese acknowledged that a Pennsylvania court had determined that the Pace-O-Matic machine was a game of skill, but told him that the device in question was prohibited because it awarded cash prizes. Plaintiff further avers that the Borough denied his mechanical device license application because it determined that the machine was an illegal gambling device and did not comply with the Borough Code’s prohibition against mechanical devices that award prizes,” per the answer.
“Plaintiff further alleges that defendants have engaged in selective enforcement of the Borough Code via an unofficial policy. Even accepting such an averment as accurate, which it is not, a mere violation of state law does not establish a constitutional violation. That is, even assuming that the Borough was mistaken in its determination that the machine is an illegal gambling device, such actions are not conscience-shocking.”
The defendants added that the plaintiff, in their view, also failed to adequately plead an equal protection claim and that they were entitled to qualified immunity for their actions.
UPDATE
The plaintiff then dismissed his own case on Jan. 12, according to Court records.
“Plaintiff Dhari Dhital and defendants Whitehall Borough, Chief Jason Gagorik and Officer Braden Seese, hereby stipulate under Federal Rule of Civil Procedure 41(a)(1)(ii) that this action be dismissed with prejudice as to all claims, causes of action and parties, with each party bearing that party’s own attorney’s fees and costs,” the dismissal notice read.
The plaintiff was represented by Joshua A. Lyons of Maurice A. Nernberg & Associates, in Pittsburgh.
The defendants were 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