           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,              :
State Athletic Commission,                 :
                  Petitioner               :
                                           :
              v.                           :    No. 398 M.D. 2016
                                           :    Submitted: April 13, 2017
Jon P. Trosky, DBA Sanctuary               :
Wrestling,                                 :
                 Respondent                :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: July 20, 2017

              Presently before this Court are the preliminary objections of Jon P.
Trosky, pro se, to the State Athletic Commission’s (Commission) complaint in
equity seeking to enjoin Trosky from promoting professional wrestling events
without a promoter’s license.1 For the reasons that follow, we overrule Trosky’s
preliminary objections.
              The Commission is a state agency that regulates athletic events,
including amateur and professional wrestling. See 5 Pa. C.S. §103.2 Trosky is the


1
  On August 31, 2016, Trosky filed a document that recited preliminary objections, an answer to
the Commission’s preliminary injunction application, and a response to the Commission’s
complaint in equity. We treated Trosky’s filing as presenting preliminary objections to the
Commission’s complaint and an answer to the Commission’s injunction request. It was not
accepted as an answer to the Commission’s underlying complaint in equity.
2
  The Commission is charged with the duty of “promulgat[ing] rules and regulations regarding
professional and amateur wrestling contests….” 5 Pa. C.S. §103(b)(3).
owner and operator of the respondent designated “Sanctuary Wrestling,” which is
located in a former church in Hazleton.                 In 2016, the Commission began an
investigation into the activities at the Sanctuary in order to determine if Trosky was
promoting wrestling exhibitions without a promoter’s license in violation of
Section 2101(a) of the Wrestling Act, 5 Pa. C.S. §2101(a).3
                 On April 29, 2016, the Commission sent its inspector to attend an
event at the Sanctuary, which he photographed. See Complaint, Exhibit A. While
at the event, the inspector observed “a wrestling ring, a ring announcer, a referee,
an elevated walk out area that lead to the ring, a projector, a fog machine,
spotlights, cameras, and a modest crowd surrounding the ring.” Id., ¶11. The
inspector determined the event was a professional wrestling exhibition and
considered it the “best produced and most professional event” he had attended at
his time with the Commission. Id., ¶13. 4


3
    It states, in relevant part:
           (a) Required. – No promoter shall conduct, hold or promote any professional
           wrestling contest or exhibition unless the promoter has first obtained a promoter’s
           license from the commission.... A promoter’s license shall be issued by the
           commission upon the filing by an applicant of the following:
                    (1) A license fee of $100.
                    (2) A surety bond as required under Section 2102 [5 Pa. C.S. §2102]
                    (relating to promoter’s bonding requirements)
                    (3) An application form stating the name, address, phone number,
                    taxpayer identification number and nature of the entity applying for the
                    license.
5 Pa. C.S. §2101(a).
4
  The Wrestling Act defines a “wrestling exhibition” as
       an engagement in which the participants display their skills in a struggle against
       each other in the ring, with or without the use of accessories, without necessarily
       striving to win, provided that contests prohibited by law shall not be considered
       exhibitions.
(Footnote continued on the next page . . .)
                                                   2
              Based upon the inspector’s observations, on May 6, 2016, the
Commission’s Executive Director sent a letter to Trosky directing him to cease and
desist from holding “any more professional wrestling events at ‘The Sanctuary’”
because “[Trosky did] not have a promoter’s license.” Complaint, Exhibit B. On
that same day, the Commission’s Executive Director, the Commission’s
prosecutor, and Trosky held a conference call but were unable to reach a
resolution.
              Shortly thereafter, the Commission learned that an event was
scheduled at the Sanctuary on May 27, 2016. Complaint, ¶22. The event was
advertised as a teaching seminar hosted by “Brutal Bob Evans,” a member of a
professional wrestling organization, for a fee of $20.              Id., ¶23.    It was also
advertised that a free public exhibition would be held immediately following the
seminar. Two investigators from the Department of State attended the free public
event and took photographs. See id., Exhibit C.
              On July 13, 2016, the Commission filed this action in this Court’s
original jurisdiction seeking a permanent injunction to stop professional wrestling
events at the Sanctuary until Trosky obtains a promoter’s license.5                       The
Commission complains that Trosky is holding professional wrestling exhibitions at
the Sanctuary in violation of several provisions of the Wrestling Act, 5 Pa. C.S.
§§1901-2110.6 Trosky filed preliminary objections to the complaint, asserting that

(continued . . .)
5 Pa. C.S. §1902.
5
  The Commonwealth Court has original jurisdiction over all civil actions or proceedings by the
Commonwealth government. 42 Pa. C.S. §761(a)(2).
6
  Specifically, the complaint asserts Trosky is in violation of the following sections of the
Wrestling Act: Section 2101 (relating to promoter’s license requirements), 5 Pa. C.S. §2101;
Section 2103 (relating to gross receipt taxes), 5 Pa. C.S. §2103; Section 2104 (relating to
(Footnote continued on the next page . . .)
                                              3
the events held at the Sanctuary are not professional wrestling exhibitions, but
theatrical stunts and stage performances, which are not regulated by the Wrestling
Act.
               Along with the complaint, the Commission filed an application for a
preliminary injunction. On September 30, 2016, the Court conducted a hearing
and denied the Commission’s preliminary injunction request.                   State Athletic
Commission v. Trosky, (Pa. Cmwlth., No. 398 M.D. 2016, filed January 5, 2017).
The Court held that the Commission failed to establish either a clear legal right to
relief or that allowing Trosky to continue his activities at the Sanctuary would
cause immediate and irreparable harm.
               The Commission did not appeal the denial of the preliminary
injunction, and on January 23, 2017, the Court ordered the parties to file briefs on
Trosky’s preliminary objections. The preliminary objections are now ready for
disposition.
               Trosky has raised five preliminary objections to the Commission’s
complaint. First, Trosky asserts that his business is called the “Sanctuary Stunt
Studio,” not “Sanctuary Wrestling” as averred by the Commission, and contends
that the Commission cannot use semantics to assert jurisdiction over the activities
in the facility. Second, Trosky contends that the Commission, as a self-funded
agency, can exist only by exploiting the Wrestling Act to generate revenue, thereby
creating a conflict of interest. Third, Trosky contends that the sport of professional
wrestling has changed since the Wrestling Act was written in 1992, rendering the


(continued . . .)
physician requirements), 5 Pa. C.S. §2104; Section 2105 (relating to ambulance requirements), 5
Pa. C.S. §2105; and Section 2106 (relating to crowd control), 5 Pa. C.S. §2106.


                                              4
Act obsolete today. Fourth, Trosky contends that the Wrestling Act regulates
activities where “participants are engaged in a struggle in the ring;” however,
Sanctuary activities do not involve a struggle. Last, Trosky asserts the Sanctuary
activities do not take place in a “ring” as that term is contemplated in the Wrestling
Act. Thus, Sanctuary activities are not subject to the Commission’s regulation.
             Preliminary objections are a means to attack the sufficiency of a
party’s pleading.    Pennsylvania Rule of Civil Procedure 1028(a) sets forth
permissible grounds for preliminary objections. It states:

             (a) Preliminary objections may be filed by any party to
             any pleading and are limited to the following grounds:
                    (1) lack of jurisdiction over the subject matter of
                    the action or the person of the defendant, improper
                    venue or improper form or service of a writ of
                    summons or a complaint;
                    (2) failure of a pleading to conform to law or rule
                    of court or inclusion of scandalous or impertinent
                    matter;
                    (3) insufficient specificity in a pleading;
                    (4) legal insufficiency of a pleading (demurrer);
                    (5) lack of capacity to sue, nonjoinder of a
                    necessary party or misjoinder of a cause of action;
                    (6) pendency of a prior action or agreement for
                    alternative dispute resolution;
                    (7) failure to exercise or exhaust a statutory
                    remedy; and
                    (8) full, complete and adequate non-statutory
                    remedy at law.
Pa. R. C. P. No. 1028(a). In ruling on preliminary objections, this court must


                                           5
             accept as true all well-pleaded allegations of material facts as
             well as all of the inferences reasonably deducible from the
             facts…. For preliminary objections to be sustained, it must
             appear with certainty that the law will permit no recovery, and
             any doubt must be resolved in favor of the non-moving party….

Stilp v. Commonwealth of Pennsylvania, 927 A.2d 707, 709 (Pa. Cmwlth. 2007)
(citation omitted).
             Trosky’s brief does not explain why the facts pled in the
Commission’s complaint do not state a claim. Instead, he argues the merits of the
Commission’s request for a permanent injunction, using evidence presented at the
preliminary injunction hearing. Likewise, the Commission reargues the merits of
the Court’s denial of its preliminary injunction request.
             For example, Trosky objects to the Commission’s characterization of
the activities at the Sanctuary as “wrestling.” This argument goes to the ultimate
issue in the case, i.e., whether the Commission can offer sufficient evidence to
prove that the Sanctuary activities are subject to regulation under the Wrestling
Act. On the issue of whether there is a “struggle” in a “ring” under the Wrestling
Act, both Trosky and the Commission argue from evidence adduced at the
preliminary injunction hearing held by this Court on September 30, 2016.
However, it is well-settled that

             [p]reliminary objections in the nature of a demurrer require the
             court to resolve the issues solely on the basis of the pleadings;
             no testimony or other evidence outside of the complaint may be
             considered to dispose of the legal issues presented by the
             demurrer.

Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super.
2008) (quotation omitted).



                                          6
             Evidence presented at the preliminary injunction hearing cannot be
considered at this stage. At the preliminary objection stage, this Court accepts as
true all well-pleaded allegations of material facts and inferences reasonably
deducible therefrom.     The Commission’s complaint alleges that professional
wrestling exhibitions are being held at the Sanctuary.          The Commission’s
complaint is sufficient to survive Trosky’s preliminary objections.
             For these reasons, Trosky’s preliminary objections are overruled.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,        :
State Athletic Commission,           :
                  Petitioner         :
                                     :
            v.                       :   No. 398 M.D. 2016
                                     :
Jon P. Trosky, DBA Sanctuary         :
Wrestling,                           :
                 Respondent          :


                                  ORDER

            AND NOW, this 20th day of July, 2017, the preliminary objections of
Respondent, Jon P. Trosky, in the above-captioned matter are hereby
OVERRULED.        Trosky is directed to file an answer to the State Athletic
Commission’s complaint in equity in twenty (20) days.

                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
