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November 11, 1974

JOSEPH L. LECCE, Individually and as Chairman of the Pennsylvania State Horse Racing Commission

The opinion of the court was delivered by: LUONGO

 Plaintiff Alex Stokes brought this civil rights suit against defendant Joseph Lecce, charging that Lecce, acting under color of state law by reason of his position as Chairman of the Pennsylvania State Horse Racing Commission, took actions which deprived Stokes of the opportunity to work at his occupation as a horse racing official. The case was tried to a jury on January 21 through 23, 1974, and a verdict was rendered in favor of plaintiff and damages were assessed at $10,000. Before the court are (1) Lecce's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and (2) plaintiff's motion for assessment of attorney's fee.

 The trial adduced the following facts. At the time of the events here at issue, Stokes had worked as a racing official for 14 years at tracks in New Jersey, Pennsylvania, Ohio, Delaware, Florida and Maryland. In the mid-1960's he began to work as a racing steward. Stewards are the highest ranking officials at a race track and are ultimately responsible for supervising the races and making them official. Their tasks include, among others, deciding whether horses can be scratched from races once they are on the card; choosing riders for horses if the trainers or owners fail to do so; reviewing video tape replays of the races when necessary; resolving disputes in the stables and disciplining licensees. In Pennsylvania the position pays $125 per day. Stokes' reputation in the racing world as an official in general and as a steward in particular was uniformly excellent: he was regarded as conscientious and his integrity was beyond reproach.

 In 1968, when Pennsylvania legalized thoroughbred horse racing (harness racing had earlier been legalized) and the State Horse Racing Commission (hereinafter Commission) was appointed, Stokes was working as a steward at Monmouth Park, New Jersey. On the recommendation of its advisor, the newly-formed Commission interviewed Stokes for the position of steward and appointed him as such in the summer of 1968. In Pennsylvania there are three stewards at every racing meet, one appointed by the Commission and two appointed by "management," i.e., the racing associations which operate the meets. Stokes was the "commission steward" at Liberty Bell Race Track and he served in that capacity until February 1972, the end of the winter meet. In January 1972, Lecce was appointed Chairman of the Commission. In the spring of 1972 Stokes learned that he was not being reappointed as commission steward. *fn1" In early May 1972, Howard Battle, Racing Secretary for Eagle Downs and Continental Racing Associations, the two racing associations which conducted meets at Liberty Bell Park (hereinafter referred to jointly as the Associations or the racing associations) offered Stokes a job as a placing judge. Placing judge is a subordinate position to steward in the hierarchy of racing officials. Placing judges help the stewards to fill the racing cards. At the finish of each race, they "place" the horses with the aid of a photo finish camera. They also interpret the photo finish films. In general, the position of placing judge entails far less responsibility than that of steward and pays only $50 a day. Although Stokes had worked as a placing judge in the past, to return to the job after serving as a steward represented a clear step-down for him. However, because he did not learn that he had lost his job as "commission steward" until shortly before the beginning of the spring racing season and he had no other job prospects, Stokes accepted the assignment as placing judge. It is this position and the fact that Stokes ultimately did not get it which is at issue in this lawsuit.

 As Racing Secretary for the Associations, Battle was in charge of the actual hiring of racing officials for the Associations subject to approval by the Commission. *fn2"

 On May 9, 1972, Phillip Baker, General Manager of Liberty Bell, and Battle's immediate superior, sent a letter to the Executive Secretary of the Commission, James LeJohn, submitting a list of racing officials for whom the Association requested approval. The name of Alex Stokes was one of six listed as "placing & patrol judges." On May 17, the Commission approved a list of officials which included all the names submitted on May 9 except that the name of John Padgett appeared in place of Alex Stokes. At trial, it became evident that Mr. LeJohn, the Executive Secretary, had physically made the change.

 Defendant contests plaintiff's theory of the case, arguing that Baker instructed LeJohn to remove Stokes' name, but that the evidence did not show Lecce's involvement and that the jury's verdict was against the clear weight of the evidence, necessitating a new trial. Additionally, defendant argues that even if plaintiff's theory of Lecce's complicity is accepted, Lecce's action would not constitute a violation of the Civil Rights Act, and therefore judgment must be entered in his favor notwithstanding the verdict.

 1. (a) Motion for New Trial

 It is axiomatic that it is within the sound discretion of the trial court to grant a motion for a new trial when a jury's verdict is against the weight of the credible evidence. Morris Brothers Lumber Co. v. Eakin, 262 F.2d 259 (3d Cir. 1959); Sokol v. Gussack, 367 F.2d 576 (3d Cir. 1966); 6A Moore's Federal Practice P 59.08[5]. However, a review of the trial record convinces me that the jury's verdict, that Lecce, using the power of his office, caused plaintiff's name to be removed or withdrawn from the list submitted to the Commission for approval, was amply supported by the evidence.

 There was testimony by Louis Baranello, who served as a racing steward appointed by the Commission at Pocono Downs and Pitt Park from July 1971 to January 1972, that around March 15, 1972, he had a conversation with Lecce in Florida concerning Baranello's prospects for appointment as a steward in the next season, and that Lecce responded that he had not yet made up his mind about Baranello or many other things, "and the only thing he was sure of at the time was that Alex Stokes would not be back." (N.T. 87; 90).

 Phillip Baker, who at the time of the events in issue was General Manager of the Associations, was called by plaintiff's counsel to testify. *fn3" The substance of Baker's testimony was that at a meeting at Liberty Bell Race Track, Stokes was discussed, and "it was intimated [by Lecce] that it would be much wiser" if the Association "had another official." (N.T. 101). Baker went on to clarify what transpired at the meeting: "It was Mr. Lecce in that board room -- I didn't say he wouldn't approve him. What I said, for the sake of harmony, he would much rather not have Alex Stokes there." *fn4" (N.T. 102).

 James LeJohn, who was hired as Executive Secretary of the Commission after Lecce became Chairman, testified that Stokes' name was on the list of officials which the Association submitted in early May, but that he removed it at Baker's request. LeJohn also testified that before Baker instructed him to strike Stokes' name, he tried to sound out LeJohn about whether Stokes would be approved. (N.T. 272, 275). LeJohn was non-committal on the point but denied having any particular doubts that Stokes would be approved. (N.T. 280). LeJohn denied that he had removed Stokes' name on Lecce's instructions.

 Defendant Lecce, called by plaintiff as on cross-examination, testified that he was an electrical contractor and that he had had no prior connection with racing before he was appointed Chairman of the Commission in January 1972. He remembered speaking to McDevitt about Stokes, but could recall few of the details of the conversation. Lecce conceded that he might have made the "ex-manager" remark to McDevitt; he explained it by commenting that "it might be embarrassing for somebody to be replaced as a manager sitting on the same bench . . . that would make sense to me." He denied, however, caring whether Stokes got a job as placing judge, asserting that in fact he personally liked Stokes and considered him qualified for the position. (N.T. 182). Lecce denied that Stokes had been "disapproved;" rather, his name had never formally been before the Commission. Later, as part of his defense, Lecce explained his statement to Baranello (that Stokes would not be returning) as pertaining only to the position as a steward, not as placing judge. He explained this on the ground that a Mr. Robertson had already been appointed by the Commission to replace Stokes as steward. He denied ordering or directing the removal of Stokes' name as a placing judge. He did concede that LeJohn had advised him that Stokes' name had been submitted to the Commission and then withdrawn, a fact of which another Commissioner, Thomas Livingston, had not been informed.

 In rebuttal to Lecce's testimony, John Finley, President of Eagle Downs Racing Association, and Baker's superior, testified that he had wanted to hire Stokes as a placing judge for the meet beginning at Liberty Bell in May 1972. He also testified that he told Baker "that I wanted Alex Stokes and I wanted to push hard for him. I didn't see any reason why we shouldn't have him," (N.T. 329), but later, following another conversation with Baker, Finley directed Baker to withdraw ...

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