(1971). Typically, those extenuating circumstances consist of administrative or practical inconvenience. No evidence was offered in the instant case to even suggest that a prior hearing would have been burdensome or for any reason contraindicated by some particular factor or circumstance. In fact, it appears that plaintiff was not even offered a subsequent hearing at the time he first was advised of his suspension a requirement in those cases which uphold a deprivation without prior hearing because of some overriding private or governmental interest. We conclude, therefore, that plaintiff was not accorded due process.
As to the existence of state action, plaintiff contends that his suspension and expulsion from the Meadows was "under color of state law" even though the ousting party was a private racing association instead of the state agency, the Commission itself. In support of this, plaintiff relies primarily on the fact that in Pennsylvania, racing associations, along with the rest of the harness racing industry, are extensively regulated by the state, that the Commission has granted defendant Mountain Laurel a virtual monopoly over racing in a substantial area of the state, and that broad law enforcement powers are delegated to the defendants by statute.
On the other hand, defendants argue that their action was strictly private in character. First, they contend that the expulsion of plaintiff was done under the provisions of an "Application for Stall Space," a type of lease executed by Mountain Laurel and plaintiff which, according to defendants, reserved to Mountain Laurel the right to expel plaintiff from any and all facilities at the Meadows for any reason. Notwithstanding that the reason specified for plaintiff's expulsion and suspension was inconsistent driving, which is a violation of the Rules and Regulations of the Commission, the defendants maintain that their conduct no more had the imprimatur of state involvement than that of any other landlord who evicts an undesirable tenant. The defendants argue, further, that the presence of extensive state regulation and monopoly status are insufficient to convert their otherwise private business and conduct into state action, and cite Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974) in support of this.
In Jackson the Court found that no state action was involved where a Pennsylvania utility company terminated service to a customer without prior notice and hearing. The fact that the state may have conferred monopoly status upon defendant was found to be insufficient to support a finding of state action since there was insufficient relationship between the challenged action of the entity involved and its monopoly status. 419 U.S. at p. 352, 95 S. Ct. 449. The court concluded that in the absence of a closer nexus between the state and the challenged activity, the fact of extensive state regulation would not in itself convert the utility's action into that of the state and even though the utility did submit a broad tariff to the state containing a provision explaining the utility's termination rights, it could not be said that the State "authorized and approved" the practice, since the provision was given minimal scrutiny at best. 419 U.S. at pp. 354-5, 95 S. Ct. 449.
We believe that "state action" was present in the instant case and that this conclusion is consistent with Jackson. Pennsylvania's relationship with private racing associations appears to be decidedly more "symbiotic," Jackson, supra, 419 U.S. at p. 357, 95 S. Ct. 449, than it is with public utilities. We note, for example, that under Rule 26 § 11 of the Commission's Rules and Regulations, racetrack judges, who are employees of the racing associations and not of the state and who were the persons at whose suggestion plaintiff was suspended are expressly empowered to enforce Commission rules governing the conduct of those directly involved in race meets; e.g., drivers, trainers, owners, employees of the racetrack.
Further, under Pennsylvania law, 15 P.S. § 2610.1, broad powers are conferred on racing associations to regulate the conduct of patrons of the track, including the right to employ security personnel with the "powers and duties of a peace officer" to enforce the criminal laws of the Commonwealth within the race meeting grounds or enclosure. They also are given the right to eject from the track any person whose presence is in their "sole judgment" inconsistent with the best interest of harness racing, and one so ejected is subject to fine or imprisonment if subsequently found at the track.
In these matters, racing associations and their employees are not only acting as Agents of the state but as Deputies thereof. And certainly nothing is more uniquely "state action," then the enforcement of its criminal laws.
Unlike Jackson, the state here Has specifically approved and authorized suspensions of racing related privileges by private persons, and, in fact, has completely delegated this authority. Furthermore, to the extent that the deputizing of privately-employed persons obviates the need of the Commission to hire additional enforcement personnel, the state has placed itself in the position of interdependence that the Court found absent in Jackson, 419 U.S. at pp. 357-8, 95 S. Ct. 449, but deemed controlling in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
As previously noted, the defendant Marshall testified that plaintiff was suspended because defendants felt that he had violated Commission Rule 18 § 5(c)(2) dealing with inconsistent driving, and, of course, the state has authorized such private persons to enforce Commission rules. The defendants maintain, nevertheless, that they expelled and suspended plaintiff by authority of the eviction clause in the lease for stall space. The parties agreed, however, that rental of stall space was not a prerequisite to Driving and Training horses at the Meadows and that many active drivers and trainers there keep their horses at stalls not controlled by Mountain Laurel. So, defendants, while claiming to have acted under a contractual right to evict plaintiff from Stalls and facilities he rented, cited Commission rule violations when they acted, went far beyond a simple eviction from rented space, and now seek to prevent injunctive relief by citing the harm which will result if plaintiff is permitted to continue Driving horses at the Meadows, a right not at all dependent on the rental of stall space.
It is clear to us, therefore, that plaintiff was suspended and evicted for allegedly violating a rule of the Pennsylvania State Harness Commission, an agency of the Commonwealth of Pennsylvania, that the defendants were specifically authorized by the state to enforce this rule, and that the asserted concurrent basis of private authority neither attenuates nor mitigates these facts.
Finally, defendants argue that notwithstanding any other consideration, plaintiff's claim will fail on the merits because he did not exhaust his administrative remedies as he was required to do as a prerequisite to this suit. We disagree. See U. S. ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1229 (3rd Cir., 1977).
We conclude, accordingly, that plaintiff has demonstrated sufficient likelihood of prevailing on the merits.
The foregoing discussion of the merits of plaintiff's claim is, of course, not a final determination. As previously stated, a petitioner seeking preliminary injunctive relief need only show a Likelihood of prevailing on the merits. And it is well settled that the degree of likelihood a court should require will vary depending upon the relative injury faced by the interested parties. See cases listed by Wright and Miller, Federal Practice and Procedure, at Volume II, Page 453, n. 60. In this case the balance of harm weighs decidedly in plaintiff's favor. Thus, while it may be that at a trial on the merits, should one be had, plaintiff will actually fail to establish his case, the court believes that a sufficient showing of probable success has been made at this time.