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R. A. SMITH v. COMMONWEALTH PENNSYLVANIA (05/04/88)

decided: May 4, 1988.

R. A. SMITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT



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

COUNSEL

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.

Author: Craig

[ 115 Pa. Commw. Page 623]

R.A. Smith earlier appealed from a decision of the Pennsylvania State Horse Racing Commission revoking his jockey's license. Smith's appellate brief presented three claims: 1) that the defense of entrapment should apply to administrative proceedings that are of a punitive nature; 2) that the conduct of the special agents of the Attorney General's office constituted entrapment; and 3) that the special agents failed to comply with provisions of the Wiretapping and Electronic Surveillance Control Act.*fn1

This court, concluding that the defense of entrapment is available in an administrative disciplinary hearing at which a licensee's ability to practice a profession is at stake, and that the conduct of investigators of the attorney general's constituted entrapment, reversed the decision of the racing commission. Smith v. Pennsylvania State Horse Racing Commission, 92 Pa. Commonwealth Ct. 472, 501 A.2d 303 (1985).

[ 115 Pa. Commw. Page 624]

Because we reversed the commission solely on the basis of the entrapment issue, we did not address Smith's assertion that the special agents of the Attorney General's office violated the Wiretapping and Electronic Surveillance Control Act.

The Pennsylvania Supreme Court allowed an appeal and reversed, stating that, although "instances may arise where a defense like 'entrapment' may be properly afforded in the administrative context, we do not view the matter before us as such a case." Smith v. Pennsylvania Horse Racing Commission, 517 Pa. 233, 239, 535 A.2d 596, 599 (1988). Accordingly, the Supreme Court remanded this case for our consideration of Smith's assertion that the special agents violated provisions of the Wiretapping and Electronic Surveillance Control Act when intercepting oral communication between the agents and Smith.

Because we conclude that there was no violation of the wiretap law, we must affirm the commission's decision.

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

The facts as found by the commission*fn2 were summarized by the Supreme Court as follows:

Early in 1984, Smith met another jockey, one Vergara, who was unknowingly acting as an agent of investigators from the Attorney General's office. Vergara was participating in a scheme to entice other jockeys to agree to fix a race at

[ 115 Pa. Commw. Page 625]

    some time in the future. In return for his agreement, each jockey received $500. Vergara received $100 per ...


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