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decided: October 29, 1985.


Appeal from the Order of the Pennsylvania State Horse Racing Commission in the case of In Re: Robert A. Smith, No. 84-051.


Bruce E. Cooper, for petitioner.

John Wm. Schreck, with him, John B. Hannum, Jr., for respondent.

Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge MacPhail.

Author: Craig

[ 92 Pa. Commw. Page 473]

Robert A. Smith questions a November 8, 1984 order of the Pennsylvania State Horse Racing Commission that revoked his jockey license, on the basis of 58 Pa. Code § 167.58*fn1 Based on the results of an undercover investigation, and after a hearing, the commission concluded that Smith conspired to fix horse races. In this appeal Smith contends that the state, in its investigation, used procedures that, as a matter of law, entrapped Smith. He further contends that the commission, at its hearing, failed to allow him to use entrapment as a defense. We reverse.

Our limited scope of review in these cases requires us to affirm an adjudication of the commission unless that adjudication did not conform with law or procedure or if necessary findings of fact are not supported by substantial evidence. McKenna v. Pennsylvania State Horse Racing Commission, 83 Pa. Commonwealth Ct. 116, 476 A.2d 505 (1984).

[ 92 Pa. Commw. Page 474]

The first issue that we must consider is whether an entrapment defense may be available in an administrative disciplinary hearing at which a licensee's ability to practice a profession or business is at stake. The commission contends that, because it did not accuse Smith of committing any crime, an entrapment defense should not be available to Smith.*fn2 The commission further held, in its adjudication, that the license revocation resulted only from questions regarding Smith's experience, character, and general fitness.

Because this is a question of first impression, each party directs our attention to cases in other jurisdictions that either allow or disallow use of an entrapment defense in administrative disciplinary proceedings. We are persuaded that the correct view is to allow the use of an entrapment defense.

The case the commission cites, Ballew v. Ainsworth, 670 S.W. 2d 94 (Mo. App. 1984), (denying the use of an entrapment defense in an insurance license action), reflects an overriding interest in protecting the public, and does so "without regard to the niceties associated with the interpretation of criminal statutes." 670 S.W. 2d at 100. The case Smith cites, Patty v. Board of Medical Examiners, 9 Cal. 3d 356, 508 P.2d 1121 (1973), (allowing an entrapment defense in a medical

[ 92 Pa. Commw. Page 475]

    license action), is predicated on the twin ideas that we may have more to fear from an overzealous state effort to protect the public from a perceived harm than we do from a risk of the harm itself and that "preservation of the dignity of the legal process and of public confidence in it are as applicable to the conduct of administrative proceedings as to criminal trial. . . ." Id. at 59, 508 P.2d at 1122.

In Patty, the court reversed an order of the California Board of Medical Examiners which, based on a finding that a doctor had sold illegal narcotics to board investigators, imposed disciplinary sanctions on the physician. The doctor claimed that he had been entrapped and the court agreed, concluding that the "recognition of the defense of entrapment is crucial to the fair administration of justice. If this is true for proceedings before trial courts, it is no less true for proceedings before administrative agencies." 9 Cal. 3d at 364, 508 P.2d at 1126.

We agree with the Patty court that public concern for fair administration of justice attaches equally to administrative and judicial proceedings. A potential danger of excess and abuse is involved in permitting an agency to test all licensees to determine who possesses a possible ethical weakness.

We must next decide whether the state's investigation constituted entrapment under 18 Pa. C.S. § 313:*fn3

(a) General Rule. A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:

[ 92 Pa. Commw. Page 476]

(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

(b) Burden of Proof. Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.

(c) Exception. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening injury to a person other than the person perpetrating the entrapment.

This statute provides an objective test for entrapment which focuses on the conduct of the law enforcement officials and is not concerned with a defendant's previous criminal activity or predisposition to commit a crime. Commonwealth ...

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