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12/19/97 BENSALEM RACING ASSOCIATION v.

December 19, 1997

BENSALEM RACING ASSOCIATION, INC. AND KEYSTONE TURF CLUB, INC., D/B/A "PHILADELPHIA PARK", PETITIONERS
v.
PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT



Appealed From Order dated January 15, 1997. State Agency, Pennsylvania State Horse Racing Commission.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY President Judge Colins.

The opinion of the court was delivered by: Colins

OPINION BY

PRESIDENT JUDGE COLINS

FILED : December 19, 1997

Petitioner, Philadelphia Park, *fn1 has filed a petition for review in the form of an appeal of the order of the Pennsylvania State Horse Racing Commission (Commission). Petitioner seeks reversal of the order of the Commission issued January 15, 1997, directing petitioner to within ten days of the date of the order, give Burton Sipp notice of ejection in accordance with Section 215 of the Race Horse Industry Reform Act (Act), *fn2 4 P.S. § 325.215(c), or admit Burton Sipp to the racetrack facility. We affirm the order of the Commission.

On February 12, 1993, Burton Sipp was ejected from Philadelphia Park. Sipp appealed the ejection to the Commission. After a hearing, the Commission entered an order directing Philadelphia Park to allow Sipp to engage in his occupation of owner and trainer at Philadelphia Park. Philadelphia Park appealed that ruling to this Court. On July 12, 1994, this Court reversed the order of the Commission finding that the Philadelphia Park reasonably exercised its discretion in ejecting Sipp from their grounds. *fn3

In August 1996, Philadelphia Park denied admittance to Sipp as an owner and trainer based on Sipp's 1993 ejection. Sipp's request for a hearing before the Commission was granted and heard in October 1996. The Commission deemed Philadelphia Park's August 1996 refusal of admittance a new ejection and directed Philadelphia Park to give Sipp a notice of ejection conforming to the requirements of Section 215(c) of the Act, 4 P.S. 325.215(c), or admit Sipp to the racetrack facility. Philadelphia Park has appealed that order to this Court.

On appeal to this Court, Philadelphia Park argues that the Commission failed in its obligation under the rules of racing set forth at 58 Pa. Code § 163.16 to exclude Sipp from engaging in the occupation of horse owner or trainer at Pennsylvania racetracks. The Commission responds that Philadelphia Park's failure to raise this issue at the October 1996 hearing results in a waiver of the issue. We agree.

Pa. R.A.P. 1551(a) states in pertinent part:

no question shall be heard or considered by the Court which was not raised before the Government unit except:

(1) Questions involving the validity of a statute.

(2) Questions involving the jurisdiction of the government unit over the subject matter of the adjudication.

(3) Questions which the Court is satisfied that the petitioner could not by the exercise of due diligence have ...


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