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ROBERT J. KULICK v. COMMONWEALTH PENNSYLVANIA (04/22/88)

decided: April 22, 1988.

ROBERT J. KULICK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE HARNESS RACING COMMISSION AND POCONO DOWNS, INC., RESPONDENTS



Appeal from the Order of the Pennsylvania State Harness Racing Commission, in the case of In Re: Pocono Downs, Inc. v. Robert J. Kulick, License No. 22268.

COUNSEL

Daniel Radich, with him, Richard G. Phillips, for petitioner.

John B. Hannum, Jr., for respondent, Pennsylvania State Harness Racing Commission.

Jerry B. Chariton, with him, Steven M. Greenwald, Shaffer & Chariton, for respondent, Pocono Downs, Inc.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 115 Pa. Commw. Page 409]

Robert Kulick, licensed owner and trainer of standardbred racing horses (petitioner) appeals an Order of the Pennsylvania State Harness Racing Commission (Commission) affirming his exclusion by Pocono Downs, Inc. from its premises at Pocono Downs Race

[ 115 Pa. Commw. Page 410]

Track pursuant to Section 215(c) of the Race Horse Industry Reform Act (Act).*fn1

Pocono Downs' action in ejecting petitioner followed his alleged involvement in certain betting and racing irregularities pertaining to races held on August 29 and 30, 1985. The first incident, on August 29, involved the so-called Twin Triple, a race in which the bettor must pick the exact order of finish of the win, place and show horses in two consecutive races. Bettors who successfully select the precise order of those horses in the first race of the Triple may exchange each winning ticket for cash (one-half of the amount wagered in the pari-mutuel pool divided by the number of winning tickets) and an opportunity to bet in the second race, again selecting the win, place and show horses. In the event no bettor wins the Twin Triple, the remaining betting pool is carried over to the subsequent running of such race. In track parlance, this is referred to as the "carryover pool." On August 29, the Twin Triple involved the ninth and tenth races and was valued at approximately $56,000. Petitioner placed $7,000.00 in various bets on the first half of the Twin Triple. The Commission characterized his betting pattern in this race as highly irregular, due to the exclusion of the track favorite, a horse named Boardwalk Fella. Such exclusion, according

[ 115 Pa. Commw. Page 411]

    to the Commission, raised the inference that petitioner had advance knowledge that the ninth race was "fixed". In a separate appeal involving disciplinary action against the driver of Boardwalk Fella, this Court affirmed the Commission's finding that Boardwalk Fella was restrained by his driver (referred to as "held" in racetrack vernacular). See Frizalone v. Pennsylvania State Harness Racing Commission, 112 Pa. Commonwealth Ct. 285, 535 A.2d 288 (1987), for a complete discussion of the bizarre incidents surrounding this race.

The second incident allegedly involving petitioner in the instant matter occurred on August 30, 1985, when petitioner's own horse, Late Bid, was favored to win the fifth race, a Triple. After Late Bid passed the "recall pole," he broke stride and failed to compete effectively in the race; his driver was ultimately cited for failing to contest the race. An associate of petitioner, one Ted Reap, won substantial sums of money by betting against petitioner's horse despite the horse's status as track favorite, again raising the inference that the outcome of the race was less than fortuitous. According to Pocono Downs, a "near riot" surrounded Mr. Reap's collection on his bet, a crowd reaction resulting from its awareness of the unusual discrepancy ...


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