15 Pa. Commw. 348 | Pa. Commw. Ct. | 1974
Opinion by
On December 19, 1973, while Shirley Rockwell (Ms. Rockwell), was a patron at the Liberty Bell Park race
On January 31, 1974, this Court granted the appellant’s request for supersedeas and directed the parties to argue the Association’s motion to dismiss her appeal. The following question, therefore, is now presented for our determination: What right, if any, did the Association have to eject or exclude Ms. Rockwell without affording her a hearing?
At common law, a person who was engaged in a public calling, such as an innkeeper or a common carrier, was held to be under a duty to the general public and was obligated to serve, without discrimination, all who sought service. Horney v. Nixon, 213 Pa. 20, 61 A. 1088 (1905). On the other hand, proprietors of private enterprises, such as places of amusement and resort, enjoyed the right to serve whomever they might please.
Here the Association argues that, absent statutory or constitutional provisions specifically to the contrary, such as civil rights statutes, the common law light of private proprietors to eject or exclude would attach to operators of private racetracks just as it did to a theater operator in Horney, supra. The Association has not cited any precedents in this Commonwealth, nor have we found any. The Association asserts, however, that courts of other jurisdictions have held that the doctrine advanced in Horney, supra, does apply to racetrack operations. Epstein v. California Horse Racing Board, 222 Cal. App. 2d 831, 35 Cal. Rptr. 642 (1963); Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 148 A. 2d 1 (1959); Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E. 2d 697 (1947).
Clearly if the common law doctrine does apply, an ejected racetrack patron merely has an action in contract, based on the purchase of the entrance ticket, for return of the admission price and no more. Marrone v. Washington Jockey Club of the District of Columbia, 227 U.S. 633 (1913). At least one commentator, however, has seen fit to argue that “[i]t might seem logical to conclude that the legal privilege of arbitrary expulsion of customers should be abolished.” Conrad, The Privilege of Forcibly Ejecting an Amusement Patron, 90 U. of Pa. L. Rev. 809, 819 (1942). This commentator points out that the doctrine is based only upon the notion that a patron has nothing more than a revocable license and has no property right in his seat. A property right, it is argued, can be given only by deed. Bee Marrone v. Washington Jockey Club of the District of
(Act No. 210), amending the Act of December 11, 1967, P. L. 707, 15 P.S. §2662.1, empowers the State Horse Racing Commission or a racing association to “refuse admission to and eject from [the] enclosure of the racetrack operated by any association, any person whose presence there is, in the sole judgment of the State Horse Racing Commission or the association, inconsistent with the orderly or proper conduct of a race meeting or whose presence or conduct is deemed detrimental to the best interest of horse racing. The action of the State Horse Racing Commission or any association in refusing any person admission to or ejecting him from a race meeting ground or enclosure shall be reviewable by the Court of Common Pleas of Dauphin County [now the Commonwealth Court of Pennsylvania, through the Appellate Court Jurisdiction Act of July 31, 1970, P. L. 673, 17 P.S. §211.508(a) (113)] as provided in the act of June 4, 1945 (P. L. 1388) [71 P.S. §1710.31], known as the ‘Administrative Agency Law.’ ” (Emphasis added.) This section clearly abrogates the common law doctrine permitting the ejection of patrons without cause. The Association argues, of course, that the doctrine is nullified only where the ejection results from conduct inconsistent or detrimental to horse racing, leaving the doctrine intact where the ejection is for any other cause, or, as is the case here, for no cause at all. No reasonable construction of this sec
The Association questions the applicability of Administrative Agency Law review procedures to actions taken by the Association, admittedly a non-governmental body. The statute here in question, however, merely designates that the review procedure shall be in accord with Administrative Agency Law; it does not require or indicate that the associations covered by the statute are or need to be governmental agencies in fact.
The Association clearly did not provide Ms. Bock-well with an opportunity to be heard, as mandated by the Administrative Agency Law, before she was ejected and permanently barred from the racetrack grounds. We find it necessary, therefore to remand this action
Order
The above action is hereby remanded to the Continental Racing Association, Inc. for a hearing and an adjudication with findings of fact and supporting reasons in accordance with procedures described in the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, 71 P.S. §1710.1 et seq.
Ms. Rockwell’s appeal was also extended to any attendant action of the Pennsylvania State Horse Racing Commission, and on January 18, 1974 the Commission likewise filed a motion to dismiss. Action upon that motion has been deferred pending disposition of the Association’s motion.
The court has not overlooked the fact that in Jacobson, supra, the operation of the racing association was found to be state action whereas in Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E. 2d 697 (1947), a similar operation was not found to be state action. Among the distinctions drawn by the New York court was the fact that in the former case the association was a franchisee of the state and the latter a licensee. We note that the appellee Association herein operates pursuant to a license granted by the Commonwealth of Pennsylvania rather than a franchise. Act of December 11, 1967, P. L. 707, 15 P.S. §2653. We caution, however, that this distinction alone may not suffice to delineate for constitutional purposes the extent of state involvement in horse-racing operations.