Appeal from Order of the Pennsylvania State Harness Racing Commission in case of Appeal of Stanley F. Dancer, No. 811.
Eugene R. Campbell, with him Smith & McCleary, for appellant.
Richard J. Orloski, Deputy Attorney General, with him John P. McCord, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
[ 10 Pa. Commw. Page 643]
Stanley F. Dancer, an accomplished harness racing driver, was suspended from racing for three days or five drives by the Pennsylvania State Harness Racing Commission (Commission) because of a violation of Rule 18, § 1(k) of the Rules and Regulations of the Commission.*fn1 Dancer drove his horse Super Bowl in the fifth race at Liberty Bell Park on September 16, 1972. This race was "The Colonial," a stake race for three-year-old trotters for a $100,000 purse. Though the stake race imposed no qualifying standards besides payment of the stake and fees, "The Colonial" generally drew the finest three-year-old trotters.
[ 10 Pa. Commw. Page 644]
The judges at Liberty Bell Park, and the Commission on appeal, based Dancer's suspension on the slow timing of Super Bowl's second quarter in the mile race. His time for the first quarter was 28.4 seconds, for the second quarter 33.3 seconds, for the third quarter 30.2 seconds, and for the last quarter 29.1 seconds. Super Bowl won the race in 2:02 minutes.
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. § 1710.44, and the adjudication of the Commission must be affirmed unless it was not in accordance with the law or was an arbitrary, capricious, or unreasonable determination due to the absence of substantial evidence to support the findings. Commonwealth v. Webb, 1 Pa. Commonwealth Ct. 151, 274 A.2d 261 (1971).
Upon a review of the entire record in this case, it appears to us that the facts and the testimony here do not provide substantial evidence required to support the Commission's finding that Stanley F. Dancer violated Rule 18, § 1(k).
The Commission stressed that Dancer's second quarter, driven in 33.3 seconds, was one of the two slowest quarters driven in that evening's program. There is, however, no showing that he did not maintain a pace comparable to the class in which he was racing, as required by the Rule. Moreover, he won the race and can be said to have bettered the comparable pace.
The Commission has argued that the victory of Super Bowl is no defense to the violation of Rule 18, § 1(k), and has asserted that the rule is intended to protect the interest of the betting public by prohibiting driving which will change the general outcome, normal pattern or overall timing of the race. We agree that this clearly is the intent of the rule, but we find no ...