Int'l Chapter of Horseshoers and Equine Trades, Local 947 v. PA State Horse Racing Commission (PA Dept. of Ag.) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
International Chapter of Horseshoers :
and Equine Trades, Local 947, :
:
Petitioner :
:
v. : No. 338 M.D. 2016
: Argued: September 11, 2017
Pennsylvania State Horse Racing :
Commission (Pennsylvania :
Department of Agriculture), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: October 3, 2017
Presently before the Court are the preliminary objections of the
Pennsylvania State Horse Racing Commission (Pennsylvania Department of
Agriculture) (Commission) to the Amended Petition for Review in Mandamus
(Amended Petition)1 filed by the International Chapter of Horseshoers and Equine
1
As the Pennsylvania Supreme Court has explained:
It is axiomatic that mandamus is an extraordinary writ which lies
to compel the performance of a ministerial act or a mandatory duty
where there is a clear legal right in the plaintiff, a corresponding
(Footnote continued on next page…)
Trades, Local 947 (Union). We sustain the preliminary objections and dismiss the
Amended Petition.
The Union is a labor organization with its principal office at 3 Main
Street, Kings Park, NY 11754. Amended Petition at ¶1. The Union represents,
among others, racetrack employees and is the recognized representative of various
employees at the Hollywood Casino at Penn National Race Track (Penn National)
in Grantville, Dauphin County, Pennsylvania. Id. at ¶¶2, 3. The Union represents
farriers2 working at Penn National including George Geist. Id. at ¶¶15, 16.
On February 21, 2017, the Union filed the instant Amended Petition
alleging that the Commission regulates the licensing of individuals employed in the
(continued…)
duty in the defendant, and a want of any other appropriate and
adequate remedy. Mandamus does not lie to compel the
performance of discretionary acts except where the exercise or
non-exercise of discretion is arbitrary, fraudulent, or based upon a
mistaken view of the law.
Valley Forge Racing Association v. State Horse Racing Commission, 297 A.2d 823, 825 (Pa.
1972) (citations omitted).
2
See WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 465 (1984) (defining
“farrier” as “[o]ne that shoes horses or treats them medically.”); Section 32(11) of the Veterinary
Medicine Practice Act, Act of December 27, 1974, P.L. 995, as amended, 63 P.S. §485.32(11)
(“This act shall not apply to . . . [f]arriers or persons actively engaged in the art or profession of
horseshoeing.”). See also the New York State Department of Labor’s website,
https://labor.ny.gov/stats/olcny/farriers.shtm (last visited 9/1/17) (“Farriers remove worn or
defective shoes from hooves using nail snippers and pincers. They examine hooves to detect
bruises and cracks, determine required trimming, and trim and shape hooves using knives and
snippers. They measure hooves using calipers and steel tape and select aluminum or steel shoes
to match the hoof measurement and usage. They also place leather pads, sponges, or oakum-pine
tar mixtures on bruised or cracked hooves for protection. They shape shoes to fit hooves using
swage, forge, and hammer. They nail shoes to hooves and file hooves flush with the shoe.”).
2
horse racing industry in the Commonwealth and that farriers must be licensed as a
prerequisite to employment. Id. at ¶¶9, 10.3 The Union asserts that the
Commission has failed to require any organization or entity to conduct an
examination of applicants for a farrier’s license, failed to require applicants to
submit to such testing or obtain a passing score, and granted licenses to applicants
without having taken or successfully passing the examination as required by its
regulations and application. Id. at ¶¶19, 20, 21, 23, 24.4 The Union avers that the
Commission has also “taken minimal or no steps to ensure the moral character and
law abiding nature of applicants for licensure” and has issued licenses to applicants
who have engaged in “disqualifying activities” or who are unqualified for
licensure. Id. at ¶¶24, 28, 29, 30.5
3
See Section 9311(a) of the Agriculture Code, 3 Pa. C.S. §9311(a) (“The State Horse
Racing Commission is established as a commission within the Department of Agriculture to
independently regulate the operations of horse racing, the conduct or pari-mutuel wagering and
the promotion and marketing of horse racing in this Commonwealth . . . .”); Section 9323(a) of
the Agriculture Code, 3 Pa. C.S. §9323(a) (“The commission shall develop a licensing or other
classification system for the regulation of racing vendors, trainers, jockeys, drivers, horse
owners, backside area employees and other individuals participating in horse racing and all other
persons required to be licensed as determined by the commission. The license shall not be a
property right.”); Section 163.51(a)(10) of the Commission’s regulations, 58 Pa. Code
§163.51(a)(10) (“The following are required to be licensed by the Commission before engaging
in an activity related to a race meeting licensed by the Commission. The annual license fee and
expiration date[] are set forth after each occupation: . . . Farrier--$15—December 31.”).
4
See Section 163.52(a) of the Commission’s regulations, 58 Pa. Code §163.52(a) (“The
issuance of a farrier’s license shall be dependent upon the ability of the applicant to satisfactorily
complete an examination of his capabilities. The examination . . . shall be conducted by an
organization or entity appointed by the Commission. In order to complete the examination, the
applicant shall attain a satisfactory score. That score shall be determined by the organization
giving the examination and approved by the Commission.”).
5
See Section 163.56 of the Commission’s regulations, 58 Pa. Code §163.56 (“The
Commission may refuse to issue a license under this section, if it finds the applicant: (1) Has
(Footnote continued on next page…)
3
The Union claims that it and its members “are directly, and
negatively, impacted by the nonfeasance, misfeasance, and malfeasance of the
Commission . . . .” Id. at ¶18.6 Specifically, the Union asserts: “individuals
whose qualifications are uncertain (and unproven) are competing for jobs with the
Union’s well-qualified and tested members”; “horses at thoroughbred racetracks in
this Commonwealth are at risk”; there is a “diminishment of qualifications and
character of the labor pool of farriers”; “damage[] to the good name and reputation
of the members of the Union” has resulted; and there is “a lack of appropriate
safety in the work environment.” Id. at ¶¶25, 32.
Based on the foregoing, the Union asks this Court to issue an order
requiring the Commission to pay its costs and attorney fees, and to comport with
the law by: (1) appointing a testing entity as required by Section 163.52 of the
Commission’s regulations, 58 Pa. Code §163.52; (2) requiring the testing of all
new applicants for a license; (3) revoking all improperly issued licenses; (4)
(continued…)
been convicted of a crime involving moral turpitude. (2) Has engaged in bookmaking or another
form of illegal gambling. (3) Has been found guilty of fraud or misrepresentation in connection
with racing or breeding. (4) Has been found guilty of a violation or attempt to violate a law, rule
or regulation of racing in a jurisdiction, for which suspension from racing might be imposed in
the jurisdiction. (5) Has violated rules, regulations or order of the Commission. (6) Is not
financially responsible.”).
6
The Union alleges that its representatives and those of the University of Pennsylvania’s
School of Veterinary Medicine “addressed the Commission’s dereliction of its responsibilities at
Commission meetings, as well as with Commission representatives via telephone and email,”
and that they “had initially been assured that the Commission will begin to follow the law,” but
that the Commission’s Acting Bureau Director “has articulated the Commission’s true position
that there will be no changes in order to comport with the law.” Amended Petition at ¶¶26, 27.
The Union also asserts that “[c]omplaints to other agencies about the above-described matters
have been referred back to the Commission, which has failed and refused to act.” Id. at ¶31.
4
requiring the testing of all improperly licensed farriers who cannot produce
verification of the successful completion of the testing; (5) enforcing a regimen for
license applications and renewals to comply with Section 163.56 of the
Commission’s regulations, 58 Pa. Code §163.56; and (6) ensuring that racetracks
and others under the Commission’s authority comply with all applicable laws,
including workers’ compensation laws.
On March 23, 2017, the Commission filed the instant preliminary
objections to the Amended Petition,7 first alleging that the Union is not entitled to
mandamus relief because it has failed to exhaust a statutory remedy. Preliminary
Objections at ¶¶20-29. Specifically, the Commission asserts that the Union “had
two possible administrative remedies available to it: filing of a formal complaint
under 1 Pa. Code §35.9[8] or filing of a petition for declaratory order under 1 Pa.
Code §35.19.[9]” Id. at ¶24.
7
“In reviewing preliminary objections, all material facts averred in the complaint, and all
reasonable inferences that can be drawn from them, are admitted as true. However, a court need
not accept as true conclusions of law, unwarranted inferences, argumentative allegations, or
expressions of opinion. ‘Preliminary objections should be sustained only in cases that are clear
and free from doubt.’” Seitel Data, Ltd. v. Center Township, 92 A.3d 851, 859 (Pa. Cmwlth.
2014), appeal dismissed, 111 A.3d 170 (Pa. 2015) (citations omitted).
8
Section 35.9 of the General Rules of Administrative Practice and Procedure (GRAPP)
states, in relevant part:
A person complaining of anything done or omitted to be done by
a person subject to the jurisdiction of an agency, in violation of a
statute or regulation administered or issued by the agency may file
a complaint with the agency. . . . A copy of the complaint will be
forwarded by the agency to the respondent who will be called upon
to satisfy the complaint or to answer the same in writing . . . . If, in
the judgment of the agency, a violation of a statute or regulation
administered or issued by the agency has been alleged and has not
been satisfied adequately the agency will either invite the parties to
(Footnote continued on next page…)
5
As this Court has explained:
A party challenging administrative decision-
making that has not exhausted its administrative remedies
is precluded from obtaining judicial review by mandamus
or otherwise. The primary purpose of the exhaustion
doctrine is to ensure that claims will be heard, as a
preliminary matter, by the body having expertise in the
area. It further provides the agency with the opportunity
to correct its own mistakes and to moot judicial
controversies.
Matesic v. Maleski, 624 A.2d 776, 778 (Pa. Cmwlth. 1993) (citations omitted).
(continued…)
an informal conference, set the matter for a formal hearing, or take
another action which in the judgment of the agency is appropriate.
See also Section 165.171(a) of the Commission’s regulations, 58 Pa. Code §165.171(a) (defining
“complaint” as “[a] written statement of facts under oath submitted by a person which accuses
the licensee of a violation of statute or of the rules and regulations promulgated by the
Commission.”); Section 165.173, 58 Pa. Code §165.173 (“Complaints, appeals, affidavits,
petitions, motion and other formal papers shall be filed with the Commission at its executive
offices in Harrisburg, Pennsylvania. The same shall be legible and in paragraph form and shall
contain all principal allegations of fact and rules or issues of law believed to be relevant.
Complaints, appeals, original petitions or similar motions shall be sworn by the applicant.”); St.
Clair Area School District v. Department of Education, 584 A.2d 384, 386 (Pa. Cmwlth. 1990)
(“The [GRAPP] apply to agency proceedings unless a statute sets forth different rules on the
same subject, or unless the agency itself has promulgated inconsistent rules. 1 Pa. Code §31.1.
With respect to the department’s action in this case, there are no statutory or procedural
provisions that preempt the application of the [GRAPP].”).
9
Section 35.19 of the GRAPP states:
Petitions for the issuance, in the discretion of an agency, of a
declaratory order to terminate a controversy or remove uncertainty,
shall state clearly and concisely the controversy or uncertainty
which is the subject of the petition, shall cite the statutory
provision or other authority involved, shall include a complete
statement of the facts and grounds prompting the petition, together
with a full disclosure of the interest of the petitioner.
6
Further:
The courts of this Commonwealth have long held
that a party challenging administrative decision-making
must first exhaust administrative remedies before seeking
judicial review; where such remedies exist, courts lack
jurisdiction. This doctrine is not inflexible, and it is not
applied where administrative remedies are not available
or are not adequate. A remedy is not adequate if it does
not allow for adjudication of the issue raised or if it
permits irreparable harm to occur to the plaintiffs during
the pursuit of the statutory remedy. In addition,
exhaustion has not been required in some cases where a
complaint stated a direct constitutional attack upon a
statute, such that administrative proceedings would
contribute little to the ultimate adjudication, or where
pursuit of an existing remedy would be futile.
Pennsylvania Pharmacists Association v. Department of Public Welfare, 733 A.2d
666, 672 (Pa. Cmwlth. 1999) (citations omitted). Moreover, “[c]ourts should not
lightly assume the futility of a party’s pursuing an administrative remedy; instead,
it is to be assumed that the administrative process, if given the opportunity, will
discover and correct its errors.” Id. at 673 (citations omitted).10
In Coder v. State Board of Chiropractic Examiners, 471 A.2d 563(Pa. Cmwlth. 1984), George Coder, D.C., and the Pennsylvania Chiropractic
Society (Society) filed a formal complaint with the State Board of Chiropractic
Examiners (Board), pursuant to Section 35.9 of the GRAPP, to prevent the Board
from continuing in effect 52 chiropractic licenses that the Board had issued to
graduates of the ADIO Institute of Straight Chiropractic, Inc. (ADIO) and to enjoin
10
See also Schmidt v. Boardman Company, 11 A.3d 924, 942 n.17 (Pa. 2011) (“The
presumption in favor of exhaustion must be emphasized . . . and hence courts are very skeptical
of exception claims and such claims only rarely succeed.”) (quoting CHARLES H. KOCH, JR., 4
ADMIN. L. & PRAC. §12:22 (2d ed. 2010)).
7
the further issuance of such licenses to ADIO graduates.11 In a June 1982 special
meeting, a majority of the Board had adopted a motion that gave ADIO “interim
approval” for one year to allow its graduates to sit for the license examination and
ordered that licenses be issued to all ADIO graduates who pass the examination
during that period. Coder and the Society filed the formal complaint against the
issuance of these licenses, and the Board met in July 1982 to consider the
complaint. At that meeting, and a subsequent September 1982 meeting, a majority
of the Board adopted orders which resulted in the issuance of the 52 licenses to the
ADIO graduates during this period of “interim approval.”
11
We summarized the crux of the dispute in that case as follows:
Throughout this case, there has echoed the intensive controversy
which exists in the chiropractic profession over two disparate
approaches to that healing art: (1) the “straight” chiropractic
approach, to which ADIO purports to adhere (along with other
schools not in Pennsylvania), in which treatment is confined to the
adjustment of spinal subluxations by hand; and (2) the remaining
view, colloquially labeled the “mixer” approach, which also
involves, in addition, adjunctive treatment and the use of
“modalities,” i.e., treatment equipment and devices.
Clearly, the young people graduated from ADIO have become
the victims of this dispute among their professional elders. The
board, having authorized ADIO to function as a school and thus to
receive as income the tuition paid by the young students—who
have also committed years of their lives to study at ADIO—has
granted licensure to some of those students, and those licenses
have become the subject of the intra-professional warfare.
Coder, 471 A.2d at 564. See also id. at 568 (“The essence of the question before this court has
been whether or not the court should intervene in the actions of the board, as it seeks to
administer its function, under the governing statute, in the context of the intra-professional
warfare described above.”).
8
Coder and the Society appealed the Board’s action to this Court,
arguing that this Court should: (1) overturn the Board’s grant of licenses to the 52
ADIO graduates because ADIO is a school of chiropractic and not a college
authorized to confer degrees; (2) overturn the Board’s licensure action because it
was ineffective due to the Board’s failure to publish and post notice of the special
meeting; (3) overturn the Board’s grant of interim approval of ADIO and licenses
to its graduates because they were invalid adjudications under Section 507 of the
Administrative Agency Law, 2 Pa. C.S. §507; and (4) declare the Board’s action in
granting the licenses to 52 ADIO graduates invalid based on the nature of the
approval status that the Board conferred upon ADIO. See Coder, 471 A.2d at
568.12 However, we ultimately rejected the merits of the claims raised on appeal
and refused to order the revocation of the 52 licenses issued by the Board to the
ADIO graduates. See id. at 569-572.
In the instant case, the Union could have filed a formal complaint with
the Commission under Section 35.9 of the GRAPP based on the Acting Bureau
Director’s “articulation” that “there will be no changes in order to comport with the
law” with respect to the purportedly improperly issued and renewed farrier licenses
after the Union had been assured by the Commission that it would, in fact, follow
the law in this regard. Amended Petition at ¶¶26, 27.13 See 1 Pa. Code §35.9 (“A
12
Coder and the Society also initiated an action in our original jurisdiction; however, we
noted that “[a]lthough the litigation has proceeded without objection from either side, in part as
an original jurisdiction proceeding in the nature of equity, the issues presented . . . essentially call
upon this court to review actions of the [board], taken pursuant to that board’s extended, but
nevertheless complete, administrative process.” Coder, 471 A.2d at 568. As a result, that action
was ultimately dismissed. See id. at 572.
13
There is no indication who made the alleged complaints to other agencies that were
referred back to the Commission and not acted upon or whether they preceded or followed the
(Footnote continued on next page…)
9
person complaining of anything done or omitted to be done by a person subject to
the jurisdiction of an agency, in violation of a statute or regulation administered or
issued by the agency may file a complaint with the agency.”). Such a course
would have given the Commission the opportunity to correct its own purported
mistakes with respect to the issuance and renewal of these licenses and moot the
instant judicial controversy, Matesic, and the Commission’s disposition of the
formal complaint will be reviewed by this Court on appeal. Coder.14, 15 Moreover,
(continued…)
Commission’s assurance that the law would be followed. Amended Petition at ¶31.
Nevertheless, any such complaints should have been filed with the Commission itself under
Section 35.9 of the GRAPP as in Coder.
14
See also Section 165.185 of the Commission’s regulations, 58 Pa. Code §165.185(“Within 30 days after the entry of an adjudication or another final order or decision of the
Commission, a party shall have the right to appeal therefrom to the Commonwealth Court under
42 Pa. C.S. §763 (relating to direct appeals from government agencies.). Parties interested
jointly, severally or otherwise in the same adjudication may join in an appeal therefrom even
though the interested parties do not join therein.”).
15
In its preliminary objections, the Commission also asserts that the Union’s claims with
respect to Section 163.52(a) of the Commission’s regulations are now moot as a result of the
Commission’s July 27, 2016 order at Admin. Docket: 2016-3 which states, in relevant part:
[I]t is hereby ORDERED and DIRECTED that the [Commission]
shall conform all policies and procedures in operation at the three
Thoroughbred racetracks in the Commonwealth to the text of 58
Pa. Code §163.52 and any and all written procedures to the
contrary . . . are hereby superseded. Specifically, the following
shall be adhered to by all [Commission] employees:
(a) The issuance of a farrier’s license shall be dependent upon the
ability of the applicant to satisfactorily complete an examination of
his capabilities.
(b) The examination of the applicant shall be conducted by an
organization or entity appointed by the Commission. The
(Footnote continued on next page…)
10
there is no indication that the Commission could not adjudicate the issues or that
following such a procedure would cause irreparable harm, and it must be assumed
(continued…)
University of Pennsylvania, School of Veterinary Medicine,
New Bolton Center, is so appointed.
(c) In order to complete the examination, the applicant shall attain
a satisfactory score.
(d) That score shall be determined by the organization giving the
examination and approved by the Commission.
(e) Persons holding a farrier’s license in this Commonwealth on
March 27, 1982, are exempt from the examination requirements of
subsection (a).
(f) If a license is terminated by action of the Commission or by
failure to renew, the examination shall be required for reissuance,
unless excused by action of the Commission.
(g) If an applicant fails to satisfactorily complete the farrier’s
examination, the applicant may apply for retesting no earlier than
14 days after the initial failure and no earlier than 90 days after
each subsequent failure.
Preliminary Objections at Exhibit A (emphasis in original). However, as noted by the Union, the
consideration of the Commission’s July 27, 2016 order is not appropriate on preliminary
objection, but may be considered as new matter in a responsive pleading. See, e.g., Cardella v.
Public School Employees’ Retirement Board, 827 A.2d 1277, 1282 (Pa. Cmwlth. 2003) (holding
that the Public School Employees’ Retirement Board could not take official notice of the Public
School Employees’ Retirement System’s (System) files and use information from the files to
sustain the System’s preliminary objections in the nature of a demurrer and dismiss an
employee’s request to elect specific class membership in the System); Martin v. Department of
Transportation, 556 A.2d 969, 971-72 (Pa. Cmwlth. 1989) (holding that a court of common
pleas erred in considering an affidavit attached to preliminary objections in the nature of a
demurrer regarding county ownership of a road and ditch and could not take judicial notice as to
ownership).
11
that the Commission, if given the opportunity, will discover and correct its errors.
Pennsylvania Pharmacists Association.
Similarly, in Pennsylvania Pharmacists Association, the Pennsylvania
Pharmacists Association (Association) and seven individual pharmacies filed a
petition for review in our original jurisdiction against the Department of Public
Welfare (Department) seeking declaratory, equitable, and mandamus relief. The
petition alleged that the pharmacies participated in the Medical Assistance (MA)
Program under Title XIX, Sections 1901-1935, of the Social Security Act (Title
XIX), 42 U.S.C. §§1396-1396v, under standard agreements with the Department.
The petition sought a declaration that the outpatient pharmacy rates under a
managed-care program16 were implemented in violation of the law and the standard
agreements; requested an order enjoining the Department from permitting
continued reimbursements to providers under the managed-care program using the
then-current outpatient pharmacy rates and directing the Department to require
reimbursement at a prior rate; and asked for mandamus relief in the form of an
order directing the Department to implement the managed-care program rates in
conformity with federal and state law and an award of damages equal to that which
would have been paid under the prior rates.
16
Under the managed-care program, recipients were required to receive medical services,
including pharmaceutical services, from one of four designated health maintenance organizations
(HMOs) with which the Department had contracted. The HMOs contracted with pharmacy
benefit managers to administer the outpatient pharmacy services and they, in turn, contracted
with the individual pharmacies. Pennsylvania Pharmacists Association, 733 A.2d at 668-69. As
we explained, “[t]he gravamen of Petitioners’ complaint is that the pharmacy benefits managers,
without oversight from [the Department], systematically decreased the outpatient pharmacy
benefit rates to unreasonably low levels and that [the Department’s] method of implementing the
[managed-care] program to permit this result violated state and federal statutes and regulations,
the [standard a]greements and the [managed-care program] waiver.” Id. at 669.
12
The Department filed preliminary objections alleging, inter alia, that
the Association and the pharmacies had failed to exhaust the administrative remedy
of Section 35.19 of the GRAPP under which they could petition the Department’s
Secretary to review the outpatient rates being offered to pharmacies under the
managed-care program and to recalculate them to conform to Title XIX and the
federal regulations. Pennsylvania Pharmacists Association, 733 A.2d at 671-72.
In fact, the Department noted, the Association and the pharmacies had, in effect,
pursued this remedy via a letter to the Secretary formally requesting review of the
current outpatient rates. Id.In sustaining this preliminary objection and dismissing the petition for
review, we explained:
Petitioners have advanced no compelling reason why [the
Department’s] consideration of their claims through any
of these procedures is not potentially sufficient to secure
the relief that they seek. . . . Although the position that
[the Department] has taken in the present litigation is
contrary to that of Petitioners, the Court expects that the
Secretary will conduct a fair and impartial review of the
issues Petitioners have raised. In addition, because the
issue here involves the technical question of the
interpretation and application of Title XIX, the Court
concludes that initial consideration by the entity with
expertise in implementing the [MA] Program is
appropriate.
Id. at 672-73.
Likewise, the Union could have filed a formal petition for a
declaratory order with the Commission under Section 35.19 of the GRAPP based
on the Commission’s purported failure to follow statutory and regulatory law in
issuing and renewing the farrier licenses. Pennsylvania Pharmacists Association.
Such a course would have given the Commission, the entity with the expertise in
13
implementing the Agriculture Code with respect to thoroughbred horseracing, the
initial opportunity to consider its purported misinterpretation and misapplication of
the Agriculture Code and its own regulations, and any error with respect to the
Commission’s disposition of the formal petition will be reviewed by this Court on
appeal. Id.; 58 Pa. Code §165.185. Again, there is no indication that the
Commission could not adjudicate the issues or that following such a procedure
would cause irreparable harm, and it must be assumed that the Commission, if
given the opportunity, will discover and correct its errors. Pennsylvania
Pharmacists Association.17
17
Finally, there is yet another administrative remedy that George Geist and the other
Union members may avail themselves to contest the issuance or renewal of the farrier licenses.
Section 35.23 of the GRAPP states that “[a] person objecting to the approval of an application
. . . which is, or will be, under consideration by an agency may file a protest.” 1 Pa. Code
§35.23. However, Section 35.23 provides that “[t]he filing of a protest does not make the
protestant a party to the proceeding; a separate petition to intervene is required for this purpose.”
Nevertheless, Section 35.28(a)(2) states that “[a] petition to intervene may be filed by a person
claiming a right to intervene or an interest of such nature that intervention is necessary or
appropriate to the administration of the statute under which the proceeding is brought. The right
or interest may be one of the following: . . . An interest which may be directly affected and
which is not adequately represented by existing parties, and as to which petitioners may be
bound by the action of the agency in the proceeding. The following may have an interest: . . .
[C]ompetitors of the applicant or respondent.” 1 Pa. Code §35.28(a)(2). See also Jochen v.
Horn, 727 A.2d 645, 648 (Pa. Cmwlth. 1999) (“Moreover, in carrying out its enforcement duties
under the Act [of April 27, 1927, P.L. 465, as amended, 35 P.S. §§ 1221–1235.1 (commonly
referred to as the Fire and Panic Act (Act))], [the Department of Labor and Industry (L&I)] has
subjected all of its enforcement proceedings . . . to the [GRAPP]. Under these general rules,
Petitioners have available to them several other administrative procedures. For example,
Petitioners could file the following with [L&I’s Industrial] Board: an informal complaint, 1 Pa.
Code §35.5; a formal complaint, 1 Pa. Code §35.9; a protest in an action already under
consideration regarding Act violations, 1 Pa. Code §35.23; or a petition to intervene in a pending
action, 1 Pa. Code §35.30.”).
14
Accordingly, the Commission’s preliminary objection is sustained and
the Union’s Amended Petition is dismissed.18
MICHAEL H. WOJCIK, Judge
18
Based on our disposition of the Commission’s first preliminary objection, we will not
reach the remaining preliminary objections.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
International Chapter of Horseshoers :
and Equine Trades, Local 947, :
:
Petitioner :
:
v. : No. 338 M.D. 2016
:
Pennsylvania State Horse Racing :
Commission (Pennsylvania :
Department of Agriculture), :
:
Respondent :
ORDER
AND NOW, this 3rd day of October, 2017, the Preliminary Objection
of the Pennsylvania State Horse Racing Commission (Pennsylvania Department of
Agriculture) is SUSTAINED and the Amended Petition for Review in Mandamus
filed by the International Chapter of Horseshoers and Equine Trades, Local 947 is
DISMISSED.
__________________________________
MICHAEL H. WOJCIK, Judge