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decided: February 1, 1971.


Appeal to the Court of Common Pleas of Dauphin County from the adjudication and order of the Pennsylvania Horse Racing Commission suspending appellant's license as a trainer of horses for thirty days. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.


Louis W. Fryman, with him Edward R. Becker, Becker, Becker & Fryman, for appellant.

Joseph P. Work, General Counsel, State Horse Racing Commission, for appellee.

President Judge Bowman and Judges Kramer, Manderino, Mencer, and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Judge Wilkinson, Jr. disqualified himself and withdrew. Opinion by Judge Mencer.

Author: Mencer

[ 1 Pa. Commw. Page 152]

Bryan Webb, who has been a professional trainer of thoroughbred race horses for sixteen years, who has been licensed to train such horses in numerous states of this country, and who has in the past five years been rated as one of the top twenty trainers in America, was suspended for thirty days by the Stewards of the Continental Meeting, Liberty Bell Park, Philadelphia, Pennsylvania, on June 19, 1969, for "failing to protect his horse" in violation of Rules 15.02 and 15.06 of the Rules of Racing promulgated by the Pennsylvania State Horse Racing Commission.*fn1

[ 1 Pa. Commw. Page 153]

This action followed a positive result from a chemical analysis of the urine of a horse, Vertical Spin, under Webb's auspices, after the horse placed first in the ninth race at Liberty Bell Park on June 12, 1969. Out of a quantity of 200 ml of urine, 6.2 mg of the drug Butazolidin IV, or Phenylbutazone, was recovered. This drug is commonly used in the treatment of ailing race horses to combat arthritic disorders, to relieve pain, and to reduce inflammation and fever.

In addition to Webb's suspension, and for its duration, Vertical Spin and 34 other horses under Webb's care were suspended and denied entry to the track grounds until their transfer or sale was approved by the Stewards of the Continental Meeting. Also, Vertical Spin was denied the first place purse and the monies were redistributed to the next five finishers in the race, although the pari-mutuel wagering on the race was unaffected.

It is important to note that Webb, represented by counsel, was given on June 18, 1969, a hearing before all three Stewards before any public announcement concerning the positive urinalysis was made. This was in accordance with part (e) of Rule 16.46 of the Rules of Racing which, in several pertinent parts, is set forth below.*fn2

[ 1 Pa. Commw. Page 154]

The above described penalties, including Webb's suspension commencing June 20 through July 19, 1969, inclusive, resulted from this first hearing. Appellant appealed the order of the Stewards on June 20, 1969, and a de novo hearing before the State Horse Racing Commission followed on June 24, 1969, the result of which was an affirmance of the Stewards' Order.

Appellant subsequently perfected his appeal to this Court, but on July 8, 1969, after appellant had obeyed his suspension for twenty of the prescribed thirty days, the Honorable Homer L. Kreider, Presiding Judge of the Court of Common Pleas of Dauphin County, granted a Supersedeas reinstating appellant as a trainer at Liberty Bell Park pending the outcome of this appeal.

It should be noted also that, even though, oddly enough, appellant does not dispute the loss of the first-place purse, a great deal more hangs in the balance here than just the remaining ten days of Webb's suspension. As the written supplement to oral argument, stipulated to by counsel on each side, before this Court states:

[ 1 Pa. Commw. Page 155]

"1. Question : Would there be any additional penalty to the trainer other than the 30 day suspension, were the ruling of the Commission to be upheld?

Answer : Yes. The Pennsylvania State Horse Racing Commission, together with 44 other commissions in 32 states, is a member of the National Association of State Racing Commissions (NASRC). Reports of trainer suspensions by member commissions are forwarded to the NASRC's national headquarters in Lexington, Kentucky, which then circulates the decisions to all members by means of the NASRC Bulletin of Official Rulings. Under the National Association's reciprocity rule, each member commission undertakes to extend recognition to the rulings of sister commissions in other states. Some members, including New Jersey, consider such reciprocity mandatory and treat a ruling of another state as though it were its own, so that a trainer may be refused licensure on the basis of a suspension in another state or, if he is already licensed, his license may be suspended or revoked for the same reason. An example will be found in Rule 515 of the Rules and Regulations of the New Jersey Racing Commission, which provides that: 'Any owner or trainer once having been suspended for violation of this Rule, and thereafter another analysis of saliva or other excretions or body fluids as above provided, or as provided by any other racing commission or turf governing body, of any horse owned or trained by the said owner or trainer shows that a stimulant, drug or narcotic has been administered, the same shall be considered a second offense, and the said owner or trainer or both shall then be ruled off of all tracks in New Jersey.' (emphasis provided)"

Appellant has advanced three contentions on this appeal:

[ 1 Pa. Commw. Page 156]

(1) "Rules Nos. 15.02 and 15.06 of the Pennsylvania Rules of Racing, which on their face render a trainer an insurer of the condition of his horse, are void under the Due Process and Equal Protection clauses of the State and Federal Constitutions.";

(2) "Rules Nos. 15.02 and 15.06 of the Pennsylvania Rules of Racing are beyond the scope of the enabling legislation since they are not promulgated 'for effectively preventing the . . . administration of drugs . . . for the purpose of affecting the speed of horses in races in which they are about to participate,' the sole purpose for which rules and regulations can be prescribed by the Commission under the Enabling Act.";

(3) "The Commission's finding of fact that appellant 'failed to protect his horse' is not supported by the record. No evidence was introduced by the Commonwealth that appellant was in any way guilty of neglect in the care of his horse. On the contrary, the record clearly shows that appellant took every reasonable step humanly possible to protect his horse as required by the Commission's Rules. Nor is there any evidence in the record to suggest that the injection of two grams of the drug Phenylbutazone into Vertical Spin could in any way have affected his performance in a race seventy-two hours later."

The scope of our review in this appeal is prescribed by Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.1 et seq., which requires this court to affirm the adjudication of the State Racing Commission unless it was not in accordance with law or was an arbitrary, capricious, or unreasonable determination due to the absence of substantial evidence to support the findings. 71 P.S. § 1710.44.

(1) Are the Due Process and Equal Protection Clauses of the State and Federal Constitutions violated ?

[ 1 Pa. Commw. Page 157]

We believe that a careful reading of Rules 15.02 and 15.06 of the Pennsylvania Rules of Racing demands the conclusion that, taken individually or together, these sections do not render a trainer an absolute insurer of the condition of his horse, nor do they violate the Due Process or Equal Protection clauses of the Pennsylvania or United States Constitutions.

Appellant would have us believe that these rules automatically dictate a penalty on the owner or trainer merely if a drug is found in the urine of a race horse no matter how infinitely detailed the trainer's precautions may have been to protect his horse. This is not so.

Before carefully examining either rule, let us first look to comparable rules in the four cases advanced by appellant from other jurisdictions. These foreign decisions, of course, are merely persuasive and not binding upon us. Since thoroughbred horse racing in connection with the pari-mutuel wagering system was sanctioned in ...

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