Appeal from the Order of the Pennsylvania State Horse Racing Commission in the case of In Re: William Worthington, No. 82-168K.
John B. Lampi, with him, Nicholas Bybel, Jr., Shumaker and Williams, for petitioner.
John Wm. Schreck, with him, John B. Hunnum, Jr., for respondent.
Judges MacPhail and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge Colins.
[ 100 Pa. Commw. Page 184]
William Worthington, trainer of the horse Duke Leon, appeals here the adjudication and order of the Pennsylvania State Horse Racing Commission imposing a sixty day suspension of Worthington's racing privileges due to the positive finding of the prohibited substance Acepromazine in a urine sample obtained from Duke Leon after the fifth race in which he placed second at Keystone Race Track on June 27, 1982.
[ 100 Pa. Commw. Page 185]
Rule 15.02(1) of the Rules of Racing, 58 Pa. Code § 163.302(a)(1), prohibits any horse participating in a race from carrying in its body any foreign substance with certain exceptions not pertinent in the instant case.*fn1 After hearing, at which Worthington and three witnesses on behalf of the Commission appeared and testified, the Commission found that the blood and urine samples extracted from Duke Leon after the fifth race June 27, 1982 at Keystone indicated the presence of the prohibited drug, Acepromazine, and that the split sample sent to the University of Kentucky's laboratory at Worthington's request*fn2 also tested positive for Acepromazine. Although the Commission specifically found that Worthington did not cause the substance to be administered to Duke Leon by his veterinarian, responsibility for the presence of the drug in the horse was assigned Worthington pursuant to 58 Pa. Code § 163.309 which charges trainers with the obligation to guard the horse against the administration of any drug and 58 Pa. Code § 163.303(b) which provides that a finding that a foreign substance is present in the test sample shall be prima facie evidence that the trainer and his agents responsible for the care or custody of the horse may have been negligent in the handling or care of the horse. See Sipp v. Pennsylvania State Horse Racing Commission, 77 Pa. Commonwealth Ct. 561, 466 A.2d 296 (1983).
Worthington first argues before this Court, as he did before the Commission, that he was prejudiced by the
[ 100 Pa. Commw. Page 186]
twenty-one month delay between the date he was notified of the positive finding and the date of the hearing. Worthington had filed a motion to dismiss with the Commission pursuant to 58 Pa. Code § 165.189 which permits the Commission, in its discretion, to dismiss cases pending more than four months before the Commission which have, due to fault or neglect, neither been duly continued nor prosecuted. The sole basis for Worthington's asserted prejudice due to delay was his inability to locate two key witnesses, grooms in Worthington's employ in June of 1982, who could offer testimony on his behalf. Worthington testified at the hearing that, although he was aware of the whereabouts of one of the grooms, he had made no effort to ensure his attendance at the hearing by subpoenaing him*fn3 nor had he attempted to locate the other groom. The Commission, therefore, concluded that Worthington's blanket allegation of prejudice, without more, was insufficient to cause the Commission to dismiss the charge against Worthington.
In response to Worthington's repeated assertion of prejudice to this Court, we hold that the Commission did not abuse its discretion in so denying the motion. Worthington may not benefit from a hardship which is, to a great extent, self-imposed. Certainly, if Worthington had attempted to secure both grooms' attendance at the hearing and failed his argument of prejudice would be entitled to greater weight. Worthington did not ...