Opinion
Argued June 2, 1981
July 15, 1981.
Argued June 2, 1981, before President Judge CRUMLISH and Judges MENCER, BLATT, WILLIAMS, JR. and CRAIG. Judges ROGERS, MacPHAIL and PALLADINO did not participate.
Original jurisdiction, No. 2665 C.D. 1978, in case of James Gilligan, John Wames, George Hammerschmidt and the Pennsylvania Division, Horsemen's Benevolent Protective Association v. Pennsylvania Horse Racing Commission; Andrew R. Johnson, Chairman; A. Marlyn Moyer, Commissioner; and William D. Gross, Commissioner. Petition for review in the Commonwealth Court of Pennsylvania challenging authority of respondent to set jockey fees. Answer filed. Respondent filed motion for judgment on the pleadings. Motion denied. Judgment entered for petitioner. ( 46 Pa. Commw. 595) Respondent appealed to the Supreme Court of Pennsylvania. Decision reversed. Case remanded. Respondent filed motion for judgment on the pleadings. Held: Motion denied.
Richard P. Brown, Jr., with him Joe C. Ashworth, Morgan, Lewis Bockius, and Bruce E. Cooper and David S. Kohn, for petitioners.
Bartholomew J. DeLuca, Jr., Deputy Attorney General, with him David H. Allshouse, Deputy Attorney General, Allen C. Warshaw, Chief, Civil Litigation, and LeRoy S. Zimmerman, Attorney General, for respondents.
Thomas B. Schmidt, III, with him Fred Speaker, Pepper, Hamilton Scheetz, for intervenor.
In Gilligan v. Pennsylvania Horse Racing Commission, 492 Pa. 92, 422 A.2d 487 (1980), the Supreme Court reversed our decision in Gilligan v. Pennsylvania Horse Racing Commission, 46 Pa. Commw. 595, 407 A.2d 466 (1979), and ruled that the Commission did have the legislatively-prescribed authority to promulgate rules setting fees to be paid by members to their jockeys. However, the Supreme Court directly remanded the matter back to us "for factual findings and legal conclusions on the issues raised by appellees but not reached below."
Gathering impetus from petitioners' initial alternative arguments, the Commonwealth requested that judgment be entered on the pleadings alone in that (1) the Commission's regulation of jockey fees does not interfere with the constitutionally guaranteed freedom of contract, and (2) the Commission did not satisfy statutorily mandated procedural requirements in promulgating the amendments to its administrative rules.
Given the express instructions of our Supreme Court, we have no choice but to deny the Commonwealth's Motion for Judgment on the Pleadings, and proceed with a hearing on the remaining issues, after which we will render a decision based upon findings of fact and conclusions of law.
Motion for Judgment on the Pleadings denied.
ORDER
The Commonwealth of Pennsylvania's Motion for Judgment on the Pleadings is denied.
Date: July 15, 1981.