Appeal from the Order of the Pennsylvania State Horse Racing Commission in the case of In Re: Ralph J. Delaney, Jr., No. 83-083K.
Daniel D. Radich, with him, Richard G. Phillips, Richard G. Phillips Associates, for petitioner.
John B. Hannum, Jr., for respondent.
Judge Colins, and Senior Judges Barbieri and Narick, sitting as a panel of three. Opinion by Judge Colins.
[ 112 Pa. Commw. Page 408]
Ralph J. Delaney (petitioner), trainer of the thoroughbred horse "Mr. Duce," appeals from an adjudication and order of the Pennsylvania State Horse Racing Commission (Commission) imposing a Two Hundred Fifty Dollar ($250.00) fine on petitioner due to the finding of an excessive amount of the anti-inflammatory substance Phenylbutazone (Bute), in urine and blood samples obtained from "Mr. Duce" after the fourth race in which he placed third at Keystone Racetrack on June 22, 1983. We reverse for the reasons hereinafter stated.
After the fourth race on June 22, 1983, at Keystone Park, pursuant to Commission rules, blood and urine samples were taken from the horse.*fn1 These samples were split.*fn2 One sample was sent to the state laboratory in West Chester, Pennsylvania, and the other retained in the detention barn. Tests performed at the West Chester laboratory indicated the presence of Bute in the amount of 2.7 micrograms per milliliter in the horse's blood.*fn3 Petitioner received the results of the state examination on June 25, 1983, and pursuant to a receipt of a positive report, a search was conducted of petitioner's barn and tack areas. No prohibited substances or items were found. In accordance with the rules of racing,*fn4 petitioner requested that the split sample be sent to Cornell Laboratory for testing. Before the sample was shipped to Cornell, a fire broke out in the detention barn. The area where the split samples were kept was not damaged by fire; however, there was water
[ 112 Pa. Commw. Page 409]
and smoke damage to this area. The sample in question and that of another horse had been removed from the refrigerator in the office in anticipation of being shipped to Cornell Laboratory. These samples were not destroyed by the fire, but the vials containing the samples were soot covered. Subsequently, these samples were destroyed by the Commission's employees acting at the direction of a supervisor. No determination was made as to whether these samples were still capable of being tested.
Petitioner was notified that the split sample taken from his horse would not be tested due to the fire at the barn. The stewards then disqualified "Mr. Duce" and fined petitioner $250.00 for positive test results. Petitioner appealed this decision to the Commission, and after eighteen months, a hearing was held. On July 18, 1985, the Commission upheld the stewards' fine of petitioner. It is from this July 18, 1985, order of the Commission that petitioner appeals.
Our scope of review requires the Court to affirm the imposition of a fine unless the adjudication does not conform with the law or procedure, or necessary findings of fact are not supported by substantial evidence. Smith v. Pennsylvania State Horse Racing Commission, 92 Pa. Commonwealth Ct. 472, 501 A.2d 303 (1985).
[ 112 Pa. Commw. Page 410]
Petitioner initially argues that he was prejudiced by the eighteen month delay between the date he was notified of the positive finding and the date of the hearing. Petitioner's motion to dismiss was denied by the Commission, because petitioner failed to show any prejudice as a result of the delay.*fn5 In Worthington v. Department Page 410} of Agriculture, State Horse Racing Commission, 100 Pa. Commonwealth Ct. 183, 514 A.2d 311 (1986), we held that the ...