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CHARLES E. MCKENNA v. COMMONWEALTH PENNSYLVANIA (06/07/84)

decided: June 7, 1984.

CHARLES E. MCKENNA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania State Horse Racing Commission in case of In Re: Charles E. McKenna, No. 82-022CD.

COUNSEL

Dennis B. Rafferty, for petitioner.

John B. Hannum, Jr., Chief Counsel, with him, Gerald T. Osburn, Counsel, for respondent.

Judges MacPhail, Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 83 Pa. Commw. Page 117]

Petitioner, Charles Edward McKenna (McKenna), appeals here a decision of the Pennsylvania State Horse Racing Commission (Commission) which ordered, inter alia, that he divest himself of ten shares of stock in Lakelands Racing Association, Inc. (Lakelands).

Lakelands is a racing association licensed by the Commission. On August 11, 1981, the Security Bank of Erie, Pennsylvania, the transfer agent for Lakelands' stock, transferred ten shares of Class A nonvoting stock to McKenna. Prior to this, McKenna had executed an affidavit, dated July 24, 1981, which stated that, inter alia, he had never been convicted of any crime involving moral turpitude. A subsequent investigation, however, revealed that McKenna pled guilty to various federal criminal offenses, which included mail fraud, wire fraud, and interstate travel in a scheme to defraud, and that he received a suspended sentence and was subsequently placed on probation in the Western District of New York. Documents from the probation officer in Western New York also indicated that McKenna, while on probation, lived at 208 Bennington Road, Snyder, New York, which is the same address as the petitioner's here, and, while there, he violated his parole conditions and was then bound over to the Attorney General to serve the remainder of his sentence. The records of the probation office indicated further that McKenna's social security number is 159-18-9060, which is the same social security number on the aforementioned affidavit executed by McKenna. The probation officer also supplied a picture

[ 83 Pa. Commw. Page 118]

    of Charles McKenna, which was entered into the record, and which is the same McKenna known to the Commission. Security Bank, furthermore, issued a report entitled "Activity of August, 1981" for Lakelands which indicated that ten shares of the above-mentioned stock were transferred on Lakelands corporate books to McKenna. On February 9, 1982, the Commission ordered McKenna to divest himself of his stock interest in Lakelands within twenty days. After a hearing on May 19, 1982, the Commission again ordered the stock divestiture, and the instant appeal ensued.

Our limited scope of review requires that we affirm an adjudication of the Commission unless constitutional rights were violated, the adjudication was not in accordance with the law, procedural rules were violated, or necessary findings of fact are unsupported by substantial evidence. Russo v. Pennsylvania State Horse Racing Commission, 61 Pa. Commonwealth Ct. 576, 434 A.2d 857 (1981). Substantial evidence, of course, is evidence that a reasonable mind would accept as adequate to support a conclusion. Daly v. Pennsylvania State Horse Racing Commission, 38 Pa. Commonwealth Ct. 77, 391 A.2d 1134 (1978).

Section 204 of the Race Horse Industry Reform Act (Act), Act of December 17, 1981, P.L. 435, as amended 4 P.S. ยง 325.204, provides in pertinent part, as follows:

(a) Whenever a transfer of stock of any licensed corporation or of any corporation . . . shall be made, there shall be filed, simultaneously, with the corporation which issued such stock the following:

(1) In duplicate, an affidavit executed by the transferee stating that he is to be the sole beneficial owner ...


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