Original jurisdiction in case of Shirley Rockwell v. Pennsylvania State Horse Racing Commission and Continental Thoroughbred Racing Association, Inc.
Arthur L. Goldberg, with him Ronald M. Katzman and Goldberg, Evans & Katzman, for appellant.
Henry L. Rossi, with him James F. Cedoma, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Judge Crumlish, Jr. concurs in the result only.
[ 15 Pa. Commw. Page 349]
On December 19, 1973, while Shirley Rockwell (Ms. Rockwell), was a patron at the Liberty Bell Park racetrack
[ 15 Pa. Commw. Page 350]
in Philadelphia, where the Continental Thoroughbred Racing Association, Inc. (Association), was conducting its thoroughbred race meeting, she was requested by the Association's security employees to leave the premises and advised that she would be denied re-entry in the future. She left as requested, and, when her attorney later protested, she was advised by the Association's letter of January 9, 1974 that her ejection and exclusion were based upon the Association's "right to exclude any person from the premises . . . so long as that exclusion is not violative of any specific statutory or constitutional provision." On January 14, 1974, objecting to the lack of a hearing prior to the Association's action, Ms. Rockwell filed a direct appeal with this Court and also asked for supersedeas. The Association then filed a motion to dismiss the appeal, contending that its action was not appealable.*fn1
On January 31, 1974, this Court granted the appellant's request for supersedeas and directed the parties to argue the Association's motion to dismiss her appeal. The following question, therefore, is now presented for our determination: What right, if any, did the Association have to eject or exclude Ms. Rockwell without affording her a hearing?
At common law, a person who was engaged in a public calling, such as an innkeeper or a common carrier, was held to be under a duty to the general public and was obligated to serve, without discrimination, all who sought service. Horney v. Nixon, 213 Pa. 20, 61 A. 1088 (1905). On the other hand, proprietors of private enterprises, such as places of amusement and resort, enjoyed the right to serve whomever they might please.
[ 15 Pa. Commw. Page 351]
Columbia, supra. Yet, the commentator adds, it strains the modern sense of justice to suggest that one has no right to a seat if he has no deed. As in fact, our own Supreme Court has postulated in a case regarding theater seats, "as purchasers and holders of tickets for particular seats they [the patrons] had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening." Drew v. Peer, 93 Pa. 234, 242 (1880). Such a position is especially compelling where, as in the instant case, a Commonwealth license virtually permits the existence of the amusement in question as a regulated monopoly. The public's access to this form of entertainment, therefore, is limited by the Commonwealth itself, and a patron would consequently seem entitled to the utmost protection. And as was held in a recent New York case, "the combined force of the factors establishing State involvement" in racetrack operations can be so great as to require the treatment of those ...