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Moreno v. Penn National Gaming, Inc.

United States District Court, M.D. Pennsylvania

November 14, 2012

Tito MORENO, Plaintiff
v.
PENN NATIONAL GAMING, INC. a.k.a. Hollywood Casino at Penn National Race Course, and Mark Loewe, as Director of Racing and as an Individual, Defendants.

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[Copyrighted Material Omitted]

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Alan Pincus, Las Vegas, NV, for Plaintiff.

Joseph Wolfson, Stevens & Lee, P.C., King of Prussia, PA, Stacey A. Scrivani, Stevens & Lee, Reading, PA, for Defendant.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Presently before the court are two motions: (1) Defendants' Motion to Vacate August 22, 2012 Order Granting Preliminary Injunction (Doc. 27); and (2) Plaintiff's Motion to Overturn the Ejection of Tito Moreno Because 58 Pa.Code § 165.231 is Unconstitutional (Doc. 30). Both motions stem from this court's granting of Plaintiff's motion for a preliminary injunction (Doc. 20) wherein Plaintiff, a licensed horse trainer, argued at a hearing before this court that his constitutional rights to due process were violated as a result of sanctions issued against him without a hearing before the Pennsylvania State Racing Commission (the " Commission" ). For the following reasons, Defendants' motion will be denied and Plaintiff's motion will be granted.

I. Background

A. Facts

The underlying facts of this case are discussed more fully in this court's August 22, 2012 memorandum and order granting Plaintiff's request for a preliminary injunction (Doc. 20; Moreno v. Penn Nat'l Gaming, Inc., 2012 WL 3637316, 2012 U.S. Dist. LEXIS 118551 (M.D.Pa. Aug. 22, 2012).) For present purposes, it is sufficient to state the following as background.

On August 1, 2012, two inspectors of the Pennsylvania State Racing Commission (" state inspectors" ) witnessed Moreno and his son exit a stall in Barn 4 at Penn National with two syringes and an injectable bottle of Catosal. Pennsylvania state racing regulations provide that it is illegal to possess injection equipment on the track grounds. See 58 Pa.Code § 163.302(3). Defendant Mark Loewe, Vice President of Racing at Penn National, was informed of the incident by David Bailey, Racing Secretary. Loewe scheduled a meeting with Moreno on August 3, 2012, to discuss the incident and the actions that would be taken in response to the alleged violations. Following a meeting between Loewe and Plaintiff's counsel, Alan Pincus, Loewe acquiesced to Pincus's request to issue a series of sanctions against Moreno in lieu of a formal ejection. On August 3, 2012, Loewe issued the following sanctions (" August 3 Sanctions" ):

Effective as of this date, no entries will be accepted on Mr. Moreno's horses at an PNG property prior to the release of any information or any of the PSHRC.
Any horses currently In To Go will be scratched. (A special exemption has been made for Top Exchange due to his entry in a Stake Race on August 3.)
Any further violation of any Penn National rule or policy, or should Mr. Moreno receive any other rule violations from any other recognized jurisdiction, will result in immediate ejection from the grounds of Penn National Race Course and revocation of all racing privileges.
No horses currently under Mr. Moreno's care may be transferred without the approval of the racing office.

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All horses under Mr. Moreno's care must be off the grounds of Penn National by Monday August, 13 at 12 noon.
Penn National reserves the right to take further action after the findings of the PSHRC have been released.

On August 4, 2012, Moreno appealed the sanctions. Moreno argued that the sanctions amounted to an " ejection" or at least a " constructive ejection" thus entitling him to a hearing under the state horse racing regulations. The Commission did not grant Moreno's request for an appeal, asserting that because Moreno was not formally ejected, he was not entitled to a hearing under the regulations.

B. Procedural History

In light of the Commission's refusal to grant Plaintiff's request for an appeal, Plaintiff filed a complaint in this court requesting a temporary restraining order and preliminary injunction. (Doc. 1.) Plaintiff argued that the severity of the August 3 Sanctions rendered those sanctions tantamount to an ejection and Defendants' failure to provide a hearing under 58 Pa.Code § 165.231 violated his rights to due process. On August 10, 2012, this court granted Plaintiff's request for a temporary restraining order and preliminary injunction. (Doc. 6.) The court also scheduled a hearing on the preliminary injunction for August 16, 2012. On August 14, 2012, Mountainview and the Turf Club formally ejected Moreno from Penn National facilities (" August 14 Ejection" ). Following the August 16, 2012 hearing, this court issued a memorandum and order granting Plaintiff's motion for a preliminary injunction. (Doc. 20.) In that memorandum, the court first rejected Defendants' jurisdictional argument, finding sufficient evidence of state action to support a Section 1983 claim.[1] The court also found that the severity of the August 3 Sanctions were tantamount to an ejection,[2] thus entitling Plaintiff to the notice and hearing rights in 58 Pa.Code § 165.231. The court then addressed the preliminary injunction criteria. After finding that the possibility of harm to Plaintiff outweighs any harm to the Defendants, the court considered Plaintiff's likelihood of success on the merits. To that end, the court was informed by way of letter from defense counsel dated August 20, 2012, that a hearing was scheduled for August 28, 2012, regarding Moreno's August 14 Ejection. The hearing notice, however, made clear that the hearing ...


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