Appeal from the Order of the Pennsylvania Horse Racing Commission in case of Commonwealth of Pennsylvania State Horse Racing Commission v. Glenn C. Smith, No. 74-005.
Edward S. Finkelstein, for appellant.
James F. Cendoma, for appellee.
Judges Kramer, Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Kramer.
This is an appeal by Glenn C. Smith (Smith) from an adjudication of the State Horse Racing Commission (Commission), dated May 16, 1974, which imposed a fine of $500 on Smith for alleged violations of Rules 7.02 and 11.05 of the Rules of Racing of the Commonwealth of Pennsylvania. Rule 7.02 provides that "[n]o horse in an overnight*fn1 shall be scratched without the approval of the stewards." Rule 11.05 provides that "[h]orses must be in the paddock at least 20 minutes before post time." On January 26, 1974, the Board of Stewards (Board) of the Penn National Race Track (Penn National) imposed a fine of $250 on Smith for alleged infractions of these rules. An appeal was taken to the Commission, and a hearing was held before a hearing examiner on April 24, 1974. The Commission affirmed the findings of the Board, and, in addition, increased the amount of the fine to $500.
Because of the approach we take to the disposition of this case, only a brief description of the events which occurred at Penn National on January 13, 1974 will be given here. Since many allegations of procedural error
are made by Smith, we will deal with each of them in turn and provide the relevant procedural facts in the appropriate sections of this opinion.
As to the events occurring at Penn National, Smith frankly admits that he intentionally violated the letter of the two rules set forth above. By way of justification, however, Smith contends that, due to the extreme weather conditions prevailing on the date in question, he could not, as a responsible trainer and horse owner, permit his horse, "Toeless Tom," to run in the eighth race at Penn National on January 13, 1974. The record indicates that the temperature on the morning of that date was ten degrees above zero, and there is sufficient evidence in the record to at least create a serious controversy about the fitness of the track for racing. Several other trainers testified either that they attempted unsuccessfully to withdraw their horses from races on that date, or that horses which actually ran returned with injuries which may have been caused by the hardness of the track.
Smith made considerable efforts to have his "scratch" of "Toeless Tom" approved by the track stewards. In addition to consulting with the stewards, he called the owner-manager of Penn National, and the Chairman of the Commission on the morning in question. All of his efforts were to no avail, and the stewards refused to allow Smith to withdraw his horse. Rather than risk injury to his horse, Smith chose to defy the rules, and the disciplinary action followed.
Our scope of review is governed by provisions of the Thoroughbred Horse Race Meeting Corporation statute (Horse Racing Act), Act of December 11, 1967, P.L. 707, § 20, 15 P.S. § 2662 (Supp. 1974-1975), and the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, § 44, as amended, 71 P.S. § 1710.44.*fn2 Section 44 of the Administrative Agency Law describes our review as follows:
"After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of sections thirty-one to thirty-five inclusive of this act have been violated in the proceeding before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." (Footnote omitted.) Norwood v. Commonwealth of Pennsylvania, State Horse Racing Commission, 16 Pa. Commonwealth Ct. 219, 328 A.2d 198 (1974).
Smith raises nine separate questions relating to actions by the Commission, its staff personnel and its hearing examiner. Several of his contentions may be disposed of quickly.
Smith first contends that any action by the Commission in this case is invalid because the Chairman of the Commission was never confirmed by the Senate of Pennsylvania. He points to the Supreme Court's ruling in Frame v. Sutherland, 459 Pa. 177, 327 A.2d 623 (1974), and argues, in effect, that Frame requires that all action taken by the Commission subsequent to the appointment of the Chairman is a nullity. It is sufficient answer to this argument to point out that, on its own terms, Frame in no way requires a retroactive application of its doctrine. We do not believe that the scope of the Supreme Court's opinion contemplates such an effect, and, even if it did, Smith does not even allege any specific date for the Chairman's appointment. Frame did not invalidate all appointments made without Senate confirmation -- only those made while the Senate was adjourned but while the House of Representatives was still in session.
Smith next argues that the hearing held before the examiner was "improper" in that the Commission never held an "official meeting" to set the hearing date or appoint the hearing examiner. The record contains "General Order No. 3 of 1974" of the Commission, bearing the names of two Commission members, and this document appears to duly appoint Peter V. Pagano as hearing examiner. There is no evidence in the record which allows us to conclude that Mr. Pagano was not duly appointed. As to the setting of the hearing date, it is true, as Smith alleges, that the record contains no formal order of the Commission designating April 24, 1974 as the date for Smith's hearing. The April 24th date, however, is recited in the "General Order" which appointed Mr. Pagano, and the record clearly establishes that Smith's counsel was in fact notified of the time and place of the hearing by the Commission's Counsel. Thus, we find no merit in Smith's second contention.
Smith's third issue involves the conduct of the General Counsel of the Commission. He alleges that the Commission's Counsel not only prosecuted the case before the hearing examiner (which is indisputable), but also authored the Commission's adjudication and, in effect, made the decision for the Commission. As evidence in support of this allegation, Smith points out that the adjudication and order contains the Counsel's original signature and only facsimilies of the signatures of two Commission members. He also alleges that the transcript of the testimony taken before the hearing examiner was prepared by the hearing reporter only one day before the adjudication was issued, ...