Pittsburgh Palisades Park, LLC v. Pennsylvania State Horse Racing Commission

OPINION BY

Judge SIMPSON.

We are asked to decide whether, on remand for further proceedings, the Pennsylvania State Horse Racing Commission (Commission) erred by failing to permit intervention by a new applicant for a license.

After various proceedings but without a trial-type hearing, a license was granted to Presque Isle Downs, Inc. (Presque Isle) to conduct thoroughbred horse racing with pari-mutuel wagering in accordance with the Race Horse Industry Reform Act (Reform Act).¹ Appeals were taken by two objectors. Following argument before this Court, one of the objectors, MEC Pennsylvania Racing, Inc. (MEC), sought permission to withdraw its appeal requesting a formal hearing. A few days later, this Court entered an order granting MEC the relief it requested on appeal, namely vacation of the Presque Isle license and remand to the Commission for a trial-type hearing for the objectors. MEC Pennsylvania Racing, Inc., v. Pennsylvania State Horse Racing Comm’n, 827 A.2d 580, 590-91 (Pa.Cmwlth.2003).² The Court simultaneously denied MEC’s tardy offer to withdraw its appeal.

During this extended process, two events material to the present appeal occurred. First, the current appellant, Pittsburgh Palisades Park, L.L.C. (Pittsburgh Palisades), which was not in existence when the license was granted initially to Presque Isle, filed an application for a thoroughbred racing license. Second, the Commission, recognizing the keen competition among numerous applicants for one remaining license, published as policy a new review process. Under the new review policy, “[a]ll applications received by the application closing date set forth in the Application Notice shall be placed into a single group for comparative consideration. ...” 7 Pa.Code § 133.5(a).

After our vacation of the Presque Isle license and remand, the Commission held a special meeting to address the license at which Pittsburgh Palisades appeared.³ It sought intervention, invoking the new review policy.

MEC did not appear at the special meeting; rather, MEC notified the Commission that it no longer wanted a formal hearing on its objections to the Presque Isle license, that it would not participate, and that it waived its right to a hearing. Considering MEC’s position, the Commission denied the request to intervene and reinstated the license to Presque Isle without a trial-type hearing.

Timely appeal to this Court by Pittsburgh Palisades followed. Pittsburgh Palisades’ petition for review also requests declaratory relief in this Court’s original jurisdiction. Both the Commission and Presque Isle seek summary relief on this request.

The Administrative Agency Law⁴ governs appeals under the Reform Act. MEC Pennsylvania Racing. Pursuant to the Administrative Agency Law, we shall affirm unless the administrative agency’s adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with the law, or that the provisions relating to practice and procedure of Commonwealth agencies (2 Pa.C.S. §§ 501-08) have been violated in the proceedings before the agency, or its adjudication is not supported by substantial evidence. 2 Pa.C.S. § 704.

On its appeal, Pittsburgh Palisades raises several arguments. Essentially, it condemns the Commission’s failure to hold a trial-type hearing. In addition, it contends that the Commission committed error by failing to apply its new review policy and to grant intervention. We conclude that the Commission was not compelled to grant intervention, and it committed no error.

It is well settled that granting or denying a petition to intervene is within the sound discretion of the agency involved. West Chester Area Sch. Dist. v. Collegium Charter School, 571 Pa. 503, 812 A.2d 1172 (2002); Wilkinsburg Educ. Ass’n v. Sch. Dist. of Wilkinsburg, 690 A.2d 1252 (Pa.Cmwlth.1996). A decision on intervention will not be disturbed unless there has been a manifest abuse of discretion. Wilkinsburg Educ. Ass’n.

Neither the Reform Act nor the Administrative Agency Law addresses intervention. We therefore turn to the General Rules of Administrative Practice and Procedure. Section 35.28, entitled “Eligibility to intervene,” states in pertinent part:

(a) Persons. 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:

(1) A right conferred by statute of the United States or of this Commonwealth.

(2) 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: consumers, customers or other patrons served by the applicant or respondent; holders of securities of the applicant or respondent; employees of the applicant or respondent; competitors of the applicant or respondent.

(3) Other interest of such nature that participation of the petitioner may be in the public interest.

1 Pa.Code § 35.28(a).

Pittsburgh Palisades fails to satisfy any of these requirements so clearly as to compel intervention contrary to the Commission’s exercise of discretion. First, it is undisputed that there is no statutory right of intervention. Nor is there anything in our opinion in MEC Pennsylvania Racing authorizing participation by new entities during remand.

Second, Pittsburgh Palisades is not “directly affected” by the reinstatement of the Presque Isle license under the previous review process. In this regard, we note that Pittsburgh Palisades does not have a license, and thus is not a competitor of Presque Isle. There is no contention that Pittsburgh Palisades is a consumer, customer, patron, employee or security holder of Presque Isle. Pittsburgh Palisades did not object to or participate in the prior review of the Presque Isle application. Also, Pittsburgh Palisades is not bound by the Commission’s decision because it possesses no rights or obligations as a result of the reinstatement of the license to Presque Isle. See Collegium Charter School, 571 Pa. at 527, 812 A.2d at 1186. Further, any interest Pittsburgh Palisades may have as one of many applicants for a future license is too speculative to compel intervention as of right.

Third, Pittsburgh Palisades’ interest in the Presque Isle license is not sufficient to compel intervention “in the public interest.” On this issue, Pittsburgh Palisades contends it defends the public’s interest in open, honest government, subject to the rale of law rather than to caprice or favoritism. What these noble contentions ignore is the public interest in finality. Presque Isle’s initial application was submitted in June, 2001. There followed 16 months of noticed public meetings and written submissions involving 25 entities, including current license holders, industry associations and elected officials. MEC Pennsylvania Racing. As none of the participants in those extensive proceedings assigns error or seeks enlargement of the record, the public’s interest in finality preponderates against purifying the process by reinitiating with a new party.

The Commission’s new review policy does not compel a different result. When Presque Isle’s application was filed in June, 2001, there were licenses available and no “comparative group consideration” policy in existence. Also, when Presque Isle’s application was approved and a license issued in November, 2002, at least one other license remained available, and there was no “comparative group consideration” policy.

This was the situation when the new policy was published on May 3, 2003.⁵ Under the new review policy the Commission publishes an Application Notice. 7 Pa. Code § 133.3(2). This event commences the process. The Application Notice contains an application closing date, after which no new applications shall be accepted. 7 Pa.Code § 133.4(5)(C). Applications received between the Application Notice date and the closing date comprise the group for comparative consideration. 7 Pa.Code § 133.5(a). However, no Application Notice was published and no closing date was ever set for the license issued to Presque Isle and reinstated thereafter. Clearly, the new review policy was never applied to this license, and no group for comparative consideration was established.

No error is evident in the decision to apply the new review policy prospectively to licenses ungranted at the time of policy publication. No statute, regulation or precedent to the contrary exists.⁶ Furthermore, the decision is within the wide discretion vested in the Commission. Cashdollar v. Pennsylvania State Horse Racing Comm’n, 143 Pa.Cmwlth. 650, 600 A.2d 646 (1991). This is especially true here, where application of the new policy to the license at issue will require abandoning significant work and reinitiating the application and review process.

Also, no error is evident in the Commission’s decision to forgo a trial-type hearing. As discussed, it was within the Commission’s discretion to deny belated intervention to Pittsburgh Palisades. Since no other participant preserved a demand for such a hearing, no error was committed by the reinstatement of Pres-que Isle’s license based on the ample record already developed.

As to that part of Pittsburgh Palisades’ petition addressed to our original jurisdiction, an action seeking declaratory judgment is not an optional substitute for established or available remedies and should not be granted where a more appropriate remedy is available. Greenberg v. Blumberg, 416 Pa. 226, 206 A.2d 16 (1965). Where another remedy has already been sought in a pending proceeding, a declaratory judgment action should not ordinarily be entertained. Id. See also, 11 Standard Pennsylvania Practice 2d, §§ 66.10 — 66.11 (1996 ed.). Because Pittsburgh Palisades sought a more appropriate remedy, appeal, we decline to exercise original jurisdiction. Accordingly, we grant summary relief and dismiss the request for declaratory relief.

We do not decide whether the Commission can improve its procedures so as to enhance its image in the eyes of a skeptical public. Rather, we simply discern neither error nor abuse of discretion in denying intervention after the completion of considerable proceedings. For the forgoing reasons, we affirm the July 17, 2003, decisions of the Commission. Further, we grant summary relief and dismiss that portion of the petition for review seeking declaratory relief.

ORDER

AND NOW, this 4th day of March, 2004, the oral decision of the Pennsylvania State Horse Racing Commission denying intervention and the written Order of July 17, 2003, by the Pennsylvania State Horse Racing Commission reinstating the license of Presque Isle Downs, Inc. to conduct live thoroughbred horse race meetings with pari-mutuel wagering, with condition, are AFFIRMED.

In addition, the applications for summary relief are GRANTED, and the request for declaratory relief addressed to the Court’s original jurisdiction is DISMISSED.

1 . Act of December 17, 1981, P.L. 435, as amended, 4 P.S. §§ 325.101 — 325.402.

2 . One objector waived its right to a trial-type hearing.

3 . Pursuant to our order, the Commission on July 15, 2003 scheduled a formal administrative hearing for the next day. Also on July 15, 2003, MEC notified the Commission that it no longer sought a hearing and would not participate.

The next day, July 16, 2003, the Commission cancelled the formal hearing, citing MEC’s notification. Then, the Commission published notice of a "special meeting” to take place the following day, July 17, 2003.

The purpose of the special meeting was to consider the Presque Isle license.

4 . 2 Pa.C.S. §§ 501-08, 701-04.

5 . 33 Pa. B. 2172 (2003).

6 . North Hills Passavant Hosp. v. Dep’t of Health, 674 A.2d 742 (Pa.Cmwlth.1996), relied upon by Pittsburgh Palisades, is easily distinguished. Unlike the present case, the statute in North Hills required simultaneous and comparative review of applications. Moreover, after administrative action no relevant licenses remained available.