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WHETZLER v. KRAUSE

March 31, 1976

WHETZLER, RICHARD P.
v.
DONALD KRAUSE, et al.



The opinion of the court was delivered by: GREEN

 GREEN, J.

 Pending before the Court is plaintiff's motion for preliminary injunctive relief against certain named individuals and certain corporations licensed to conduct horse racing activities in the State of Pennsylvania. At a hearing on said motion, the parties stipulated to many of the facts underlying this controversy. Also pending before the Court is a motion filed jointly on behalf of defendants Donald Krause, Continental Thoroughbred Racing Association, Inc. ("Continental"), Harry L. Rossi, Thoroughbred Racing Protective Bureau and the Thoroughbred Racing Association to dismiss plaintiff's complaint. A similar motion has also been filed jointly on behalf of defendants Eagle Downs Racing Association ("Eagle Downs"), and J. Thomas O'Brien. For the reasons hereinafter set forth, we deny the request for injunctive relief and grant the motions to dismiss as to Counts 1 and 2 of the complaint. *fn1"

 I. FACTS

 Plaintiff's complaint basically alleges that the defendants, while acting under color of state law, have conspired to deprive him of certain constitutional rights by denying him access to certain race tracks after his license as an assistant trainer of thoroughbred race horses was revoked and later reinstated by the Pennsylvania State Horse Racing Commission. The defendants' conduct, plaintiff alleges, constitutes a violation of §§ 1983 and 1985(3) of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3). Jurisdiction is properly invoked under 28 U.S.C. §§ 1331, 1343(3), (4).

 The operative facts giving rise to the instant action are detailed in the complaint as follows. Prior to August 28, 1973, plaintiff, a white male residing in Pennsylvania, was engaged in the occupation of groom and assistant trainer of thoroughbred race horses for 14 years and, during this 14 year period, was licensed to engage in said occupation by various state horse racing commissions, including Pennsylvania, New York, Maryland, Delaware and New Jersey. On August 28, 1973, plaintiff was employed in that capacity at the Liberty Bell Race Track by one Joseph Dougherty, a trainer of thoroughbred race horses, who was then participating in a pari-mutuel race meeting conducted by Continental. On or about that date, without notice or hearing, or any substantial evidence, plaintiff's license was revoked by defendant Russ *fn2" at the direction of defendant Krause who was then acting in the additional capacity of chief of security at Liberty Bell Race Track. Also, in conjunction with the action taken by defendants Krause and Russ, plaintiff was denied access to the premises of Liberty Bell Race Track in spite of the fact that he was employed at the meet then being conducted by Continental.

 Plaintiff petitioned the Commonwealth Court of Pennsylvania for an order compelling the Pennsylvania State Horse Racing Commission to grant him a hearing on the revocation of his license, said commission refusing to do so upon plaintiff's initial request. *fn3" The Court granted plaintiff's petition; and after a hearing before an examiner appointed by the Pennsylvania Horse Racing Commission, plaintiff's license was reinstated. However, despite the reinstatement of plaintiff's license by the Commission, plaintiff was thereafter and continues to be denied access or admission to, and hence, the right to work at, Liberty Bell Race Track and Keystone Race Track by the defendants Krause, Thoroughbred Racing Protective Bureau, Eagle Downs, O'Brien, Continental and Rossi.

 Count 1 of the complaint alleges a violation of § 1983 of the Civil Rights Act of 1871 in that plaintiff states therein that the actions and conduct of the defendants as set out hereinabove deprived plaintiff of his rights, privileges and immunities secured by the Constitution and laws of the United States by the fact that he has been deprived of the opportunity of earning his livelihood as an assistant trainer at Liberty Bell Race Track, Keystone Race Track and all thoroughbred horse race meetings in which said defendants participate. The complaint further alleges that the actions and conduct of the defendants were undertaken under color of state law, more particularly pursuant to § 12.1 of the Act of December 11, 1967, P.L. 707, as amended 15 P.S. § 2662.1. Plaintiff further alleges that thoroughbred horse racing in the Commonwealth of Pennsylvania is a monopoly organized and conducted by the state for the purpose of providing it revenue; that Continental and Eagle Downs are granted licenses by the state to conduct horse race meetings; and that said horse race meetings and the activities of Continental and Eagle Downs are controlled and supervised by the Commission. In addition, he asserts that he has been deprived of a meaningful hearing at which he could confront adverse witnesses, present witnesses on his own behalf, give testimony on his own behalf and, further, that by their actions the defendants have in effect nullified the Commission's ruling reinstating his license, thereby arbitrarily, capriciously, and maliciously depriving him of the opportunity to pursue his chosen occupation. Finally, plaintiff claims that the actions and conduct of the defendants have improperly and unlawfully stigmatized him as unfit to pursue his chosen occupation, depriving him of an important property right without due process of law.

 Count II alleges a violation of § 1985(3) of the Civil Rights Act of 1871 in that plaintiff states therein that the defendants have conspired to deprive him of the opportunity to pursue his occupation and have, thereby, injured him by depriving him of his livelihood.

 It is on the basis of the aforesaid allegations that we evaluate the complaint against defendants' motions to dismiss.

 II. § 1983

 In their motions to dismiss, defendants contend that plaintiff has not sufficiently alleged a violation of § 1983. Defendants' contention is based upon their position that (1) state action is not present in the instant action, (2) a constitutional right is not involved and (3) even if a constitutional right is involved there has not been any impermissible invasion of the right.

 In regard to defendants' position as to the state action question, we find that the complaint is replete with allegations of conduct by defendants committed under color of state law sufficient to establish a case of state action capable of withstanding dismissal at this stage of the proceedings. Included in the numerous allegations concerning state action are the assertions that "thoroughbred horse racing in the Commonwealth of Pennsylvania is a monopoly organized and conducted by the State for the purpose of providing revenues for the State; CONTINENTAL and EAGLE DOWNS are granted licenses by the State to conduct horse racing meetings, and the horse race meetings and the activities of CONTINENTAL and EAGLE DOWNS are controlled and supervised by the COMMISSION." *fn4" Plaintiff also alleges that "the actions and conduct of the aforesaid defendants constitute an abuse and misuse of power possessed by them by virtue of State law and the actions and conduct of the Defendants were undertaken under color of State law, more particularly § 12.1 of the Act of December 11, 1967, P.L. 707, 15 P.S. § 2662.1, as amended." *fn5" ...


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