Appeal to the Court of Common Pleas of Dauphin County from the Order of the Pennsylvania State Horse Racing Commission in the case of In Re: Appeal of James P. Conway. Transferred September 1, 1970 to the Commonwealth Court of Pennsylvania.
Stuart H. Savett, with him Harold E. Kohn and Robert E. Woodside, Woodside & Woodside and Eugene F. Roth, of counsel, for appellants.
Joseph P. Work, General Counsel, Pennsylvania State Horse Racing Commission, for appellee.
Judges Kramer, Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
On November 6, 1969, the State Horse Racing Commission entered an order suspending appellant, James P. Conway, trainer of the horse Verbatim, for 15 days and disqualified Verbatim, owned by appellant, Maxwell H. Gluck, from the purse award for the seventh race in Liberty Bell Park on July 5, 1969. Appellants ask this Court to reverse the order suspending appellant Conway, declare Verbatim the winner of the seventh race, and award appellant Gluck the purse. We cannot do so.
Appellants raise questions involving the proper interpretation and constitutionality of Rules 15.02 and 15.06 of the Rules of Racing promulgated by the Pennsylvania State Horse Racing Commission. Most of the questions raised by appellants have been discussed and
decided by our brother, Judge Mencer, in Commonwealth v. Bryan Webb, 1 Pa. Commonwealth Ct. 151, 274 A.2d 261, decided February 1, 1971. Indeed, the four cases from other jurisdictions on which appellants rely are there discussed in detail, i.e., Brennan v. Illinois Racing Board, 42 Ill. 2d 352, 247 N.E. 2d 881 (1969); Battles v. Racing Commission, 12 Ohio App. 2d 52, 230 N.E. 2d 662 (1967); State v. Baldwin, 159 Fla. 165, 31 So. 2d 627 (1947); Mahoney v. Byers, 187 Md. 81, 48 A.2d 600 (1946). All the arguments advanced by appellants are disposed of in that able opinion with the exception of (1) whether Indomethacin is a forbidden medication, and (2) whether the finding that such medication was administered to Verbatim is supported by the evidence. The most that can be said for appellants' position that Indomethacin is not a forbidden medication is that their expert witnesses, respected veterinarians, agreed that this drug "may have an antiinflammatory effect when administered to horses, but its use in horses is limited since, as an equine medication, it is considered erratic, and in many cases, although the swelling would decrease, pain would not be alleviated". (Quoted from appellant's brief, page 5.) Nevertheless, specific testimony of even appellants' experts throws doubt on their opinion. For example, Dr. Evans testified:
"Q. In your opinion, is Indocin an analgesic?
A. I will have to qualify that because if it is considered anti-inflammatory, it has to take care of pain, heat and swelling, so if it is anti-inflammatory, it has to alleviate all of those conditions.
A. To subdue or kill pain." (Record, page 154.) Dr. Evans again, at ...