Appeal from order of Commonwealth Court, No. 896, C. D. 1971, sustaining defendants' preliminary objections and dismissing plaintiff's complaint, in re Valley Forge Racing Association, Inc. v. State Horse Racing Commission et al.
Perrin C. Hamilton, with him Walter T. Darmopray, Joseph A. Malloy, Jr., and Hamilton, Darmopray, Malloy & Milner, for appellant.
James F. Cendoma, Assistant Attorney General, and Harry L. Rossi, with them Joseph P. Work, General Counsel, and J. Shane Creamer, Attorney General, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy.
Appellant, Valley Forge Racing Association (Valley Forge), brought this action in mandamus in the Commonwealth Court against the State Horse Racing Commission (Commission) to compel the Commission "to revoke the license to conduct thoroughbred horse race meetings granted to the Continental Thoroughbred Horse Racing Association, Inc. as well as the temporary license to conduct thoroughbred horse race meetings at Liberty Bell Park." Continental was granted leave to intervene as a party defendant, and both it and the Commission filed preliminary objections asserting lack of standing and failure of the complaint to state a cause of action. The Commonwealth Court upheld plaintiff's standing, but sustained the preliminary objection in the nature of a demurrer and dismissed the complaint. Valley Forge Racing Association, Inc. v. Horse Racing Commission, 4 Pa. Commonwealth Ct. 429 (1972). This appeal followed.
We agree with the Commonwealth Court that the relief requested is not cognizable in mandamus and
accordingly will affirm the order below; we therefore do not reach the merits of the standing issue.
In ruling on the demurrer, the lower court, accepting as true all the well-pleaded, material and relevant facts in the complaint, see e.g. Unger v. Hampton Township, 437 Pa. 399, 401-2, 263 A.2d 385 (1970), considered the following: The Act of 1967, December 11, P. L. 707, § 1 et seq., 15 P.S. § 2651 et seq. (hereinafter referred to as the Horse Racing Act), established the defendant Commission, bestowing upon it the authority to license and regulate four*fn1 corporations to conduct thoroughbred racing in Pennsylvania. In November, 1968, having screened a field of 15 applicants which included Valley Forge, the Commission filled its initial quota of four licenses. One of the four licenses was granted to Continental,*fn2 on condition that (1) Continental construct a racing facility as set forth in its application; (2) it submit written financing plans to the Commission within 30 days; (3) the Commission approve construction plans; and (4) the final grant of the license would be subject to all conditions of the Horse Racing Act and its amendments, and to all rules, regulations, orders, and directions of the Commission.
Valley Forge's complaint further alleged that to date none of the first three conditions set out above has been fulfilled, that the Commission has repeatedly ignored plaintiff's requests to revoke Continental's licenses, that in 1970 Continental failed to heed a Commission demand to furnish a projected commencement
date for construction of its new facility, and that Continental continues to conduct thoroughbred horse racing meets at Liberty Bell Park in ...