decided: March 28, 1978.
CARL STRIKER, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT
Appeal from the Order of the Pennsylvania State Horse Racing Commission in case of Pennsylvania State Horse Racing Commission v. Carl Striker, No. 76-064.
Clyde P. Bailey, with him Bailey and Bailey, for appellant.
Larrick B. Stapleton, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.
[ 34 Pa. Commw. Page 374]
Carl Striker (Striker) appeals to this Court from an order of the Pennsylvania State Horse Racing Commission (Commission) dated December 27, 1976. The order suspended Striker's license to race horses in Pennsylvania for a period of 5 years for violating Rules 1.11, 1.12, 25.01, and A-16 of the Pennsylvania Rules of Racing.*fn1
[ 34 Pa. Commw. Page 375]
Our scope of review is governed by provisions of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, § 44, as amended, 71 P.S. § 1710.44. Smith v. Pennsylvania State Horse Racing Commission, 18 Pa. Commonwealth Ct. 1, 333 A.2d 798 (1975). Section 44 of the Administrative Agency Law describes our review as follows:
[ 34 Pa. Commw. Page 376]
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 [71 P.S. §§ 1710.31-.35] 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.
On July 19, 1976, Striker was asked to appear before the Board of Stewards of Commodore Downs. He was questioned as to whether he knew certain persons whom the Commission subsequently determined to be men of poor reputation. Striker denied any relationship with the men, and no evidence to the contrary is of record. Further, Striker was questioned concerning a conversation he had had with Michael Hodges, another jockey at Commodore Downs. Hodges had signed a written statement, which he subsequently disavowed, that in part read:
[ 34 Pa. Commw. Page 377]
Striker offered me money if I would pull a horse during the running of a race. I replied, No. No specific horse or race were mentioned.
Striker denied making such a statement and explained that his conversation with Hodges was prompted by seeing Hodges, for no apparent reason, jump off a horse during a race. Striker asserted that he attempted to ascertain from Hodges whether someone was trying to impede horses during the running of races so that he could avoid those horses in some way and still ride his horse to win.
Striker's own testimony could be summarized as follows: that he was suspicious of misconduct on the part of one or more other jockeys; that he sought information from Hodges to clarify the nature and extent of the misconduct; that he planned to use the information obtained to his own benefit in the riding of his mounts in future races; and that he did not disclose his suspicions or information obtained from Hodges to the Commission, its representatives, or anyone in authority at Commodore Downs, although specifically asked whether he knew of anything going on, prior to meeting with the stewards on July 19, 1976.
The Commission made the following so-called conclusion of law:
11. That although there is no evidence that the Petitioner Striker himself was engaged in concert with those other jockeys in arranging to fix races, it is clear that upon [his] own admission he was planning to take advantage of such fixes and such arrangements to plan and benefit his own running.
We have examined the record, keeping in mind that it was for the Commission to weigh the evidence and resolve conflicts in the testimony, Norwood v. Pennsylvania Horse Racing Commission, 16 Pa. Commonwealth Ct. 219, 328 A.2d 198 (1974), and we must conclude
[ 34 Pa. Commw. Page 378]
that there is substantial evidence in support of the findings and conclusions of the Commission in so far as Striker's violating Rules 1.11 and A-16 of the Pennsylvania Rules of Racing.*fn2
However, Striker contends that a 5-year suspension for his conduct is excessive. After careful consideration of the record in this case, we agree.*fn3 Although we recognize that the evidence presented against Striker is sufficient to sustain the Commission's suspension of his license, the actions are not such as to warrant a 5-year suspension. The Commission itself concluded that there was no evidence that Striker was engaged in concert with other jockeys in arranging to fix races. In addition, the Commission concluded that Striker engaged in conduct which constituted a violation of Rules 1.12 and 25.01 of the Pennsylvania Rules of Racing but, as we noted in footnote 2, supra, this record does not support such a conclusion. Although this certainly does not excuse his actions, we believe that it sufficiently mitigates the degree of the offenses committed. Under the facts of this case, the revocation of Striker's license for 5 years is too severe. See Pennsylvania State Horse Racing Commission v. DiSanto, 29 Pa. Commonwealth Ct. 574, 372 A.2d 487 (1977).
[ 34 Pa. Commw. Page 379]
And Now, this 28th day of March, 1978, the order of the Pennsylvania State Horse Racing Commission, dated December 27, 1976, suspending the license privileges of Carl Striker for 5 years is modified, and said license is suspended for 2 years, commencing on July 30, 1976, the date fixed by the Pennsylvania State Horse Racing Commission.
Affirmed as modified.