Young J. Lee, Inc. v. Commonwealth, Department of Revenue, Bureau of State Lotteries

ROBERTS, Chief Justice,

concurring.

Although I agree with the majority that this Court is without direct appellate jurisdiction in this case, I do not agree with the reasoning employed by the majority in reaching this conclusion. In seeking judicial review of the determination of the Department of Revenue to revoke appellee’s lottery license, appellee properly exercised its right to appeal to the Commonwealth Court from an “adjudication” of an administrative agency. See 42 Pa.C.S. § 702. Contrary to the view of the majority, the right to appeal from an administrative adjudication is not dependent upon a showing that a “substantial constitutional question” is present, any more than is a party’s right to appeal to an appellate court from a determination of a court of common pleas. Rather, under the express terms of section 702, that right is absolute.*

As to the stay of the revocation of appellee’s lottery license, I would treat the Department of Revenue’s notice *382of appeal as a petition for review pursuant to Pa.R.A.P. 3315 and set the stay aside. Appellee has failed to establish the existence of a right to a hearing prior to the suspension of its lottery license. See generally Dept. of Public Welfare v. Eisenberg,. 499 Pa. 530, 454 A.2d 513 (1982) (Roberts, J., concurring, joined by O’Brien, C.J., Larsen, Flaherty, and Hutchinson, JJ.); Commonwealth v. Forbes Health System, 492 Pa. 77, 422 A.2d 480 (1980). Nor has appellee established any likelihood that it will prevail on the merits of its challenge to the revocation of its license at the pre-revocation hearing to which it is entitled. See Pa. Public Utility Commission v. Process Gas, supra.

Accordingly, I concur only in the result.

LARSEN, J., joins in this concurring opinion.

Of course, when, in conjunction with an appeal under section 702, a party seeks a stay of an administrative agency’s order, the substantiality of the question presented may become relevant because the appellant must demonstrate likelihood of success on the merits to be entitled to the stay. See Pa. Public Utility Commission v. Process Gas, 502 Pa. 545, 467 A.2d 805 (1983). Such an inquiry, however, is manifestly irrelevant to the determination of the party’s right to take the appeal in the first instance.