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

844 A.2d 62, 2004 Pa. Commw. LEXIS 155
CourtCommonwealth Court of Pennsylvania
DecidedMarch 4, 2004
StatusPublished
Cited by18 cases

This text of 844 A.2d 62 (Pittsburgh Palisades Park, LLC v. Pennsylvania State Horse Racing Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pittsburgh Palisades Park, LLC v. Pennsylvania State Horse Racing Commission, 844 A.2d 62, 2004 Pa. Commw. LEXIS 155 (Pa. Ct. App. 2004).

Opinions

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.

[65]*65MEC 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 com[66]*66pel 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.

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Pittsburgh Palisades Park, LLC v. Pennsylvania State Horse Racing Commission
844 A.2d 62 (Commonwealth Court of Pennsylvania, 2004)

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Bluebook (online)
844 A.2d 62, 2004 Pa. Commw. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittsburgh-palisades-park-llc-v-pennsylvania-state-horse-racing-pacommwct-2004.