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

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