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Mosher v. Revington

United States District Court, M.D. Pennsylvania

April 19, 2017

MARC MOSHER, Plaintiff
v.
BRETT REVINGTON, as an individual and in his position as Standardized Bureau Director of the Pennsylvania Horse Racing Commission, Defendant

          MEMORANDUM

          Yvette Kane, District Judge

         Before the Court is Plaintiff Marc Mosher's (“Mosher”) Motion for Preliminary Injunction. (Doc. No. 4.) The parties have briefed the motion (see Doc. Nos. 2, 8, 11), and on April 10, 2017, the Court held a hearing on the motion. For the reasons that follow, the Court will deny Mosher's Motion for Preliminary Injunction.

         I. BACKGROUND [1]

         A. Mosher's Complaint

         On March 17, 2017, Mosher filed a complaint pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated by Defendant's failure to provide him with adequate due process regarding his ejection from The Meadows Race Track (the “Meadows”), where he alleges that he pursued a career as a licensed trainer, driver, and worker of standardbred race horses. (Doc. No. 1 ¶¶ 1, 2, 6.) Defendant is Brett Revington (“Defendant”), an individual serving as Standardbred Bureau Director of the Pennsylvania Horse Racing Commission (the “Commission”). (Doc. No. 1 ¶ 7.) Mosher alleges that Defendant “presides over all aspects of the everyday work of the Commission, ” including “issuing rulings on a supersedeas and the administrative function of seeing that hearings are scheduled by the Commission.” (Id.)

         Mosher alleges that he is licensed and in good standing with the Commission as a trainer, driver and worker. (Id. ¶ 8.) He alleges that he “had some problems in the past but was given a second chance by the Commission five years ago.” (Id. ¶ 9.) Specifically, Mosher asserts that he was ejected by the Meadows on January 20, 2017.[2] (Id. ¶ 10, Doc. No. 1-2 at 1.) The “Notice of Ejection” issued by the Meadows states that Mosher's actions “have been inconsistent with the integrity of harness racing and the successful business operation of the Meadows.” (Doc. No. 1-2 at 1.) As a consequence of the ejection, the notice directed that no horses “owned, trained, or in any way under your control are permitted to race, train, or be stabled at The Meadows.” (Id.) Mosher alleges that the horse owners that he works with seek to race their horses in the Commonwealth of Pennsylvania, where there are three standardbred race tracks: the Meadows, Harrah's Philadelphia and Pocono Downs. (Doc. No. 1 ¶ 13.) Mosher's complaint alleges that only the Meadows is currently conducting races, and thus, is the only place in Pennsylvania that Mosher can run his horses. (Id.)

         On January 21, 2017, through his counsel, Mosher appealed his ejectment to the Commission and Defendant, requesting a hearing on the ejection and a supersedeas, or stay of enforcement, pending a final decision on his appeal. (Doc. No. 1 ¶ 11, Doc. No. 1-2 at 2.) In support of his appeal of the ejection and request for a stay of enforcement, Mosher submitted only the letter of his counsel, which stated “[n]ot allowing his participation will cause irreparable harm to Mr. Mosher. He will lose his clientele if the penalty is imposed before he has his hearing. He will suffer further damage to his reputation and the action is likely to be given reciprocity in other jurisdictions.” (Doc. No. 1-2 at 2.) On January 25, 2017, Defendant issued Commission Ruling 17008C granting Mosher a hearing on his appeal of the ejection but denying his request for a stay of enforcement of the ejection pending a decision on his appeal. (Doc. No. 1 ¶ 12, Doc. No. 1-2 at 3.) Mosher did not seek reconsideration of Defendant's denial of his request for a supersedeas, nor did he exercise his right to appeal the denial to the Commonwealth Court of Pennsylvania pursuant to the Pennsylvania Rules of Appellate Procedure. See Pa. R. A. P. 1501, 1512, 1732.

         A hearing on Mosher's appeal of his ejection was scheduled for April 11, 2017. (Id. ¶ 17.) Mosher received notice of the hearing date on February 22, 2017.[3] (Def. Exh. 4.) After receiving notice of his hearing date on February 22, 2017, Mosher did not seek an expedited hearing date. Instead, three and a half weeks later, he filed his complaint with this Court on March 17, 2017.

         Mosher alleges that his hearing rights are governed by the hearing procedures of 58 Pa Code 165.231, and cites the case of Moreno v. Penn National, 904 F.Supp.2d 414 (M.D. Pa. 2012), where the court found 58 Pa Code 165.231 unconstitutional as written and as applied for failure to provide a prompt hearing where no stay of enforcement was in place. (Doc. No. 1 ¶¶ 18-19.) Mosher alleges that after the Moreno decision, the Commission began to issue a stay of enforcement in almost all cases so that its hearing procedures would comply with constitutional due process standards. (Id. ¶ 20.) However, Mosher alleges that recently the Commission has “backslid to its old ways” by initiating a policy of granting hearings but denying a stay of enforcement, while doing nothing to ensure that the hearing and final decision occur within a constitutionally appropriate timeframe. (Id. ¶ 21.)

         Mosher's complaint alleges two claims for relief: count one asserts a 42 U.S.C. § 1983 claim against Defendant for violation of his constitutionally guaranteed right to due process, and count two seeks a declaratory judgment to the effect that the “hearing system for ejections as defined in 3 PaCS 9326 and Pennsylvania Act 7 is unconstitutional as written and applied as it fails to guarantee the licensee a hearing and its result in a timely manner.” (Id. ¶¶ 24-32.)

         Mosher filed a Memorandum of Law in Support of Application for T.R.O. and Preliminary Injunction (Doc. No. 2).[4] Following a telephone conference with the Court, Defendant filed his brief in opposition to Plaintiff's motion on March 28, 2017.[5] (Doc. No. 8.) Mosher subsequently filed a reply brief. (Doc. No. 11.) On April 4, 2017, the Court issued an order denying Plaintiff's request for a temporary restraining order and scheduling a hearing on his request for preliminary injunction for April 10, 2017. Mosher seeks a preliminary injunction enjoining Defendant from continuing to enforce the ejection of Mosher from the Meadows until he receives a hearing and final decision on his appeal of his ejection/denial of access. (See Doc. No. 2 at 5.)

         B. Evidence Offered by Mosher at the Preliminary Injunction Hearing

         At the April 10, 2017 hearing, Mosher offered only his own testimony and that of Defendant Revington in support of his motion for preliminary injunctive relief. Mosher testified that he currently works as a trainer, driver, and assistant trainer of horses. He testified that he had “some incidents” in the past, but was relicensed by the Commission in March of 2012. Mosher testified that he drives horses in most of the county fair races in Pennsylvania, trying to accumulate enough points to race horses at the Meadows in the Pennsylvania Fair Stakes finals. He further testified that during the time since the January 18, 2017 ejection, he has had the opportunity to drive horses and work as an assistant trainer at the Meadows for a trainer named Toni Freitas, but could not take advantage of the opportunity because of his denial of access to the Meadows. As a result, he has lost income.

         Mosher also offered the testimony of Defendant in support of his motion for injunctive relief. Mosher's counsel questioned Defendant about the process he engaged in related to the issuance of Commission Ruling 17008C, which granted Mosher's appeal but denied his request for a supersedeas. He also questioned Defendant about the process involved in scheduling a hearing on an appeal of a Commission Ruling, and the Commission's issuance of a final decision on an appeal following a hearing. Defendant confirmed that Mosher's April 11, 2017 hearing[6] on his appeal was scheduled approximately 81 days after the date of his appeal, which was the earliest available date. Defendant also confirmed that it could take two to four months after the hearing to receive a final decision from the Commission, due to the production of a transcript, potential briefing, the drafting of a decision by the hearing officer, and final approval of the decision by the Commission. Mosher's counsel bases his claim for injunctive relief on what he views as the Commission's unconstitutional procedures related to an appeal of an ejection.

         C. Evidence Offered by ...


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