                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. Lerman,                              :
                              Petitioner        :
                                                :
                      v.                        :
                                                :
State Horse Racing Commission,                  :    No. 1362 C.D. 2017
                      Respondent                :    Submitted: March 16, 2018


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: July 17, 2018


               Michael A. Lerman (Lerman) petitions pro se from the State Horse
Racing Commission’s (Commission) July 26, 2017 Adjudication and Order1
affirming the Stewards’2 January 31, 2017 ruling (Ruling) not to disqualify Big Saver


       1
          The Commission’s July 26, 2017 Adjudication and Order was mailed August 4, 2017.
Lerman Br. Ex. 1 at 1 (Commission Order).
        2
           Stewards are among the racing officials tasked with enforcing the Commission’s
Regulations at Commission-licensed race meetings in the Commonwealth. See 58 Pa. Code §§
163.331, 163.332. They are expressly authorized to regulate and supervise the conduct of owners,
trainers and jockeys during races. See 58 Pa. Code § 163.340(a). Three Commission-approved
stewards must be present and on duty in the stand at each race meeting. See 58 Pa. Code §§
163.332, 163.341(a), (e). The stewards’ duties include, inter alia, promptly investigating and
rendering decisions on protests. See 58 Pa. Code § 163.342(b). Their orders supersede the orders
of other racing officials. See 58 Pa. Code § 163.340(a).
        Further, Section 163.281(k) of the Commission’s Regulations provides: “The stewards are
vested with power to determine the extent of disqualification in cases of fouls. They may place the
offending horse behind the horses in their judgment it interfered with, or they may place it last.” 58
Pa. Code § 163.281(k). “In all cases, the [s]tewards shall render an opinion in accordance with the
generally[-]accepted customs and usages of racing in conformity with equitable standards of
justice.” 58 Pa. Code § 165.201.
from the eighth thoroughbred horse race conducted at Parx Racing (Parx) in
Philadelphia on January 31, 2017 (Race).3 The issue before the Court is whether the
Commission erred by upholding the Stewards’ Ruling.4 After review, we affirm.
               The facts of this case are not disputed. On January 31, 2017, Lerman
was the Pennsylvania-licensed trainer of S.S. Minnow, a thoroughbred horse that Big
Saver competed against in the Race. Big Saver won the Race in a close finish - by a
nose.5 Lerman lodged a timely protest6 and S.S. Minnow’s jockey Carol Cedeno
(Cedeno) claimed a foul7 against Big Saver for bumping S.S. Minnow during the
Race. The Stewards had observed the live Race but, in response to the objections,
they interviewed Lerman, Cedeno and Big Saver’s jockey, Angel Castillo (Castillo),
and watched a video recording (DVD or video) of the Race.8 Based upon their
investigation, the Stewards ruled that although the horses bumped during the Race,




       3
          The Race was six furlongs (i.e., three-quarters of a mile). Reproduced Record Tab 12,
Notes of Testimony, May 2, 2017 (N.T.) at 45-46.
        4
          Lerman’s Statement of Questions Involved lists five issues: (1) whether substantial
evidence supported the Commission’s conclusion that Big Saver did not willfully jostle S.S.
Minnow during the Race; (2) whether the Commission erred by concluding that Pennsylvania horse
racing is a contact sport; (3) whether the Commission relied upon unpromulgated regulations; (4)
whether the Commission capriciously disregarded evidence of willfulness; and, (5) whether the
Commission’s decision was consistent with the policy that Pennsylvania horse racing shall be
pristine and project an image of irreproachable integrity. See Lerman Br. at 4. Because these issues
are subsumed in the analysis of whether the Commission erred by upholding the Ruling, the issues
have been combined herein.
        5
          A nose is “an inch or two maximum.” N.T. at 50. Lerman asserts that the inch in this case
cost S.S. Minnow $12,000.00. See N.T. at 83.
        6
          A “protest” is defined in Section 161.3 of the Commission’s Regulations as “[a] formal
complaint filed after a race with the [s]tewards in accordance with the rules, protesting the right of
any horse to a place, purse, award . . . in a race . . . .” 58 Pa. Code § 161.3.
        7
          A “foul” is defined in Section 161.3 of the Commission’s Regulations as “an infraction of
the rules of racing involving physical conduct occurring during the actual running and course of a
race.” 58 Pa. Code § 161.3.
        8
          The DVD contains three viewpoints of the Race: a pan, head-on and from behind. See
N.T. at 40. It was admitted into the record without objection. See N.T. at 61-62.
                                                  2
the contact was mutual and did not affect the outcome, so Big Saver was not
disqualified.
                On February 5, 2017, Lerman appealed from the Stewards’ Ruling to the
Commission.        The Commission granted the appeal and Lerman’s request for
supersedeas to stay distribution of the Race winner’s purse. A hearing was conducted
on May 2, 2017 before a hearing officer.                Based upon the evidence presented,
including the DVD, the hearing officer recommended that the Commission adopt the
Stewards’ Ruling. On July 26, 2017, the Commission adopted the hearing officer’s
recommendation and issued the Adjudication and Order upholding the Ruling.
Lerman appealed to this Court.9
                The parties agree upon the applicable law.              Section 163.234 of the
Commission’s Regulations states: “During the running of a race, . . . a horse may not
cross or weave in front of other horses in such a way that would impede them or
constitute or cause interference or intimidation.” 58 Pa. Code § 163.234 (emphasis
added). Moreover, “[a] horse or jockey may not willfully jostle another horse.” 58
Pa. Code § 163.235 (emphasis added). Further, “[d]uring a race, a jockey may not
willfully strike or touch another jockey or the horse or equipment of another jockey
for the purpose of interfering with that horse or jockey.” 58 Pa. Code § 163.236
(emphasis added).
                At the hearing, Michael Melendez (Melendez) testified that he has been
a Commonwealth thoroughbred horse racing steward since 200910 and was one of the
three Stewards who observed the Race and conducted the investigation in response to


       9
          “This Court will only disturb an order of the Commission where constitutional rights have
been violated, where an error of law has been committed, or where necessary findings of fact are
not supported by substantial evidence.” Racing GAMbit, LLC v. State Horse Racing Comm’n, 184
A.3d 192, 195 n.5 (Pa. Cmwlth. 2018).
        10
           Melendez explained that he has been a racing official for over 30 years and has officiated
tens of thousands of races. See N.T. at 30.
                                                 3
Lerman’s and Cedeno’s objections.11 Melendez explained that the Stewards “decide
whether the infraction is severe enough or merits a disqualification. And if it affects
the outcome of the race, we certainly would [] grant[] a disqualification.”
Reproduced Record Tab 12, Notes of Testimony, May 2, 2017 (N.T.) 12 at 53.
Melendez recalled that, despite having determined that there was contact between Big
Saver and S.S. Minnow during the Race, the Stewards “didn’t feel that there was a
foul or that the incident was sever[e] enough that it required disqualification.” N.T.
at 35; see also N.T. at 64.
              According to Melendez’s testimony:

              [Commission’s counsel Carly J. Wismer (Wismer):] . . .
              [I]s a bump mid-stretch, in your opinion always - does that
              require the disqualification of a horse?
              [Melendez:] Not always, no.
              [Wismer:] And what, when would such a thing require
              disqualification, in your opinion?
              [Melendez:] In my opinion, if I feel that it has something to
              do with the outcome of the race, . . . if it’s severe[] enough
              where such horse was prevented from running the race, if . .
              . it affected the outcome of the race, it’s what we’re looking
              at, in our judg[]ment. Because what we do is judg[]ment
              calls a lot of times.
              ....
              [Wismer:] And did you feel that that contact [between S.S.
              Minnow and Big Saver during the Race] was [the cause] of
              S[.]S[.] Minnow not winning that race?
              [Melendez:] No, I do [sic] not.

       11
          The hearing examiner overruled Lerman’s objection that only one of the three stewards
attended the hearing. See N.T. at 8-13.
       12
           Lerman’s reproduced record is not consecutively numbered with Arabic numerals
followed by a small “a,” as required by Pennsylvania Rule of Appellate Procedure 2173 (relating to
numbering of pages). Therefore, this Court will herein make reference to the pages in the
Commission hearing notes of testimony.
                                                4
              ....

              [A]fter the contact was made, [S.S. Minnow] was still in
              front of Big Saver. And it wasn’t until the last few jumps
              before the wire[13] that Big Saver put her nose in front,
              basically a head bob[14] if you want to call that, to win the
              race by a photo [finish].

N.T. at 38-39; see also N.T. at 50.
              As the hearing examiner watched the DVD of the Race, Melendez
recounted why the Stewards ruled that the contact between Big Saver and S.S.
Minnow was mutual:

              If you look at some of the tracks, you can see how the
              tracks of S[.]S[.] Minnow are slightly going out. And that
              causes them to – they’re together. They’re close. And they
              were close the entire race from the half-mile pole down to
              the stretch. And they’re both paddling fairly, what we felt
              all the way to the wire. And at some point, the rumps of the
              horses, their rear-ends kind of get together. And in our
              opinion, they, both hind-ends sweep out simultaneously.
              And then they continue.

N.T. at 55; see also N.T. at 65, 73.
              Melendez opined that Cedeno was leaning left during the Race because
“[t]hat’s what jockeys do when they’re close to each other. One will lean out. The
other one will lean into the other one to try to urge the horse.” N.T. at 57. Based on
the DVD footage, Melendez described:

              So [] Cedeno is sitting left-handed. And still appears as
              slightly coming out into Big Saver. And it’s a nice, fair
              battle. And, you know, they’re going to lean into each
              other.
              ....


       13
         The wire is the finish line. See Commission Adj. at 10.
       14
         Melendez explained: “A head bob is . . . one horse’s head is going down. The other one
is coming up to the finish.” N.T. at 49. “[I]t’s a very close finish.” N.T. at 49.
                                              5
             One goes out. . . . Then [] Cedeno is leaning to her outside
             and getting ready to hit, strike her horse. All right. As the
             horse’s hind-end kind of come together. And that’s why
             she seems like she’s off-balance. That was our opinion. . . .
             So the pole’s coming up. So they’re coming near the wire.
             Probably 200 yards prior to the wire, finish line. And as I
             pointed out earlier, even at this point, S[.]S[.] Minnow has
             not lost a lead. It was always a head or half a head in front.
             So they’ll get close again. One more time after separating,
             they’ll get close again. I still see, you know, [Cedeno]
             leaning. You can see how her body’s turned toward
             [Castillo] on Big Saver[], in my opinion, straighter than the
             other rider.
             ....
             Our opinion was that what any other rider would do is try to
             get away from this inside horse. . . . So that’s probably why
             [Cedeno] commences to lean out a little bit, try to ease her
             way. Perhaps entice the other rider of Big Saver, [to] kind
             of fan out a little bit so she could stay away from the horse
             inside of her. And any rider would do that. So that’s why
             we felt that she decided to lean out from the top of the
             stretch.
             ....
             And at that point, she’s trying to switch, take her whip out
             from her right hand to her left.

N.T. at 58-61; see also N.T. at 64-65, 77-78.
             Melendez interpreted: “[T]hey were in close quarters. And [Cedeno]
probably knew that she wouldn’t be able to . . . hit right[-]handed.             Same as
[Castillo]. He couldn’t switch left[-]hand because if they hit the other horses [or] that
jockey with the whip, that would be a foul.” N.T. at 78-79. Melendez expounded:

             I would expect that the jockey on the outside hitting right[-
             ]handed, that the horse is going to drift in a little bit. And
             the jockey on the inside hitting left[-]handed, that the horse
             is going to drift out a little bit. Especially if the rider of an
             inside horse is leaning towards the outside. Riders use their
             weight to shift a horse and make them switch leads, to steer


                                            6
             them, to try to lean out or in. And in this particular case, I
             believe that that’s what [] Cedeno was doing at the time.

N.T. at 74. Accordingly, Melendez represented that the Stewards’ Ruling “was
unanimous that . . . [the bumping] was miniature, . . . didn’t affect the outcome of the
race[,] . . . [a]nd . . . never had a negative effect on S[.]S[.] Minnow[] that would have
prevented . . . him from winning the race.” N.T. at 53; see also N.T. at 64.
             Based upon the same evidence, Lerman declared that the contact
between the horses during the last twelve to fifteen seconds of the Race “doesn’t fall
within the general standards that are accepted,” N.T. at 84, and clearly affected the
Race’s outcome. See N.T. at 82-83. Relying on the DVD, Lerman explained:

             [I]t’s [around the eight pole] where Big Saver first makes
             contact with S[.]S[.] Minnow’s hind-end. And then
             continues an inward path all the way to the wire. The
             moment you see Cedeno, is because S[.]S[.] Minnow’s been
             knocked off stride and she’s trying to keep her balance.
             ....
             And from this point on, Big Saver continues his path, not in
             anything resembling a straight line or maintaining his lane
             as you described it. And as they went for the wire, . . . Big
             Saver, is clearly impeding [S.S. Minnow’s] momentum
             impact.
             ....
             And that certainly, unquestionably, undoubtedly made a
             differen[ce] of an inch, as opposed to victory and loss.
             There’s no way you can dispute it.
             ....
             [A]s they cut the corner here, you can see that [] Castillo on
             the outside of the green, is waring right on her, and
             intimidating her virtually from this point on, all the way to
             the wire. He’s got the whip in his left hand, all he’s trying
             to do is race around or intimidate [S.S. Minnow]. As they
             straighten, he first makes contact with the back-end there
             turning . . . S[.]S[.] Minnow, slightly outside. It appeared

                                            7
             that he came in and went all the way to the wire, he’s
             veering in at any angle towards the inside. Almost striking
             his horse right in. Whereas if you made any effort to
             correct that and straighten this horse out, there wouldn’t
             have been any contact there. And the momentum from
             S[.]S[.] Minnow wouldn’t have been taken away. And he
             surely would have been the victor.

N.T. at 87-89.
             Lerman pronounced that Castillo’s repeated right-handed whipping
caused Big Saver to continue on an inward path toward S.S. Minnow, resulting in
“more than an . . . inch of momentum loss due to fouling,” N.T. at 90, so “[a]ny
objective standard . . . would dictate that there’s an absolute disqualification in this
case.” N.T. at 91. Lerman further opined:

             I think that Big Saver continually carried, intimidated, and
             impeded S[.]S[.] Minnow in the last eighth of a mile. []
             Cedeno, our rider did not move around on the horse and
             shift Big Saver’s rider came in, bumped first the back-end
             of [S.S. Minnow], which gave the appearance on the video
             of [S.S. Minnow] turning slightly outward. And when we
             made contact the second, third, fourth, and fifth times, you
             know, practically knocked [Cedeno] out of the saddle.
             [Castillo] continued hitting right[-]handed all the way down
             the stretch, carrying [S.S. Minnow] in multiple paths. And
             certainly cost him more than an inch, which was a marginal
             victory, our loss I mean, to call it, like you said, excessive
             and repeated contact which clearly affected the momentum
             and the outcome of the race, there is absolutely no doubt.
             ....
             And certainly the contact wasn’t mutual. It wasn’t even
             close, you know. And for three [S]tewards who have
             watched thousands and thousands of races to say that that
             was incidental contact or mutual contact is patently absurd.
             And this is why we object.

N.T. at 81-82; see also N.T. at 84-85, 91.




                                             8
Based upon the evidence, the Commission held, in relevant part:

There is no dispute that . . . ‘Big Saver’ made contact with
Lerman’s horse, ‘S.S. Minnow.’ However, as the language
of the rules suggests, horse racing is a contact sport. This
Commission has long understood that during the running of
a race, horses do occasionally cross and weave in front of
other horses. Likewise, horses and/or jockeys do
occasionally bump, push and shove other horses during
the conduct of the race. The critical inquiries for the
Stewards and, ultimately this Commission, are whether the
crossing or weaving caused interference or intimidation
and whether the jostling of another horse was willful.
According to Melendez, one of three [S]tewards who
unanimously made a decision in this matter, the standard
for a foul requires that the incident must be severe
enough to prevent the fouled horse from running the
race and affect the outcome of the race. ([N.T. at]
38[])[.] We agree.
....
According to the testimony and video of the [R]ace, S.S.
Minnow held a slight lead to the left or inside of Big Saver
and at the stretch, Big Saver and S.S. Minnow made
‘mutual’ contact. ([N.T. at] 38-39, 53; Exhibit C-4)[.]
Melendez described the contact as a ‘bump.’ In his opinion,
a horse ‘bumped’ mid-stretch does not always require
disqualification. ([N.T. at] 38). Melendez testified that the
[] Cedeno (aboard S.S. Minnow) was whipping left[-
]handed and [] Castillo (aboard Big Saver) was whipping
right[-]handed and that riders often use their weight by
shifting a horse to steer them. ([N.T. at] 73-74). Melendez
described that the horses’ rear-ends came together, but in
his opinion, ‘felt that [n]either one of [the horses] was[]
affected by it’ ([N.T. at] 55). According to Melendez and
as the video bears out, S.S. Minnow never relinquished the
lead until just prior to the wire (finish line). ([N.T. at] 49,
52)[.]
....



                              9
            Upon review, the [S]tewards did not disqualify Big Saver
            based upon their conclusion that there was no violation of
            the Commission’s [R]egulations at [S]ections 163.234 or
            163.235 and thus no ‘foul.’ Furthermore, the Stewards
            concluded that the bump/contact between the horses was
            not severe enough to warrant a disqualification as it did not
            affect the outcome of the race.
            [] Lerman disagrees with the Stewards’ decision.
            According to Lerman, . . . Big Saver ‘continually carried,
            intimidated and impeded S.S. Minnow in the last eighth of a
            mile.’ He further asserts that there were numerous contacts
            which ‘certainly cost [S.S. Minnow] more than an inch.’
            ([N.T. at] 81-82). Finally, Lerman also asserts that the
            ‘contact wasn’t mutual.’
            Lerman’s disappointment in the outcome of this race is
            understandable. Nonetheless, this Commission concludes
            that the evidence of record, including Exhibit C-4
            (DVD), supports the Stewards’ decision. The unanimous
            opinion of the [Stewards] was that disqualification of Big
            Saver was not warranted. The Stewards are vested with
            power to make this determination. 58 Pa. Code §
            163.281(k). . . . [T]he evidence proffered by Lerman is
            insufficient to overturn the non-disqualification decision of
            the Stewards.

Commission Adj. at 9-11 (emphasis added).
            This Court has held:

            It is clear that matters of evidence taking, and the admission
            of testimony and exhibits, are matters committed to the
            sound discretion of the hearing body. [When t]he matter to
            be adjudicated [is] of a technical nature, [] this Court may
            not substitute judicial discretion for administrative
            discretion in matters involving technical expertise and
            which are within the special knowledge and competence of
            the [Commission].

Pa. Game Comm’n v. Dep’t of Envtl. Res., 509 A.2d 877, 887 (Pa. Cmwlth. 1986)
(citation omitted), aff’d, 555 A.2d 812 (Pa 1989). Accordingly, “[q]uestions of
evidentiary weight and resolutions of evidentiary conflicts are for the [Commission],


                                         10
not the reviewing court.” Pinero v. Pa. State Horse Racing Comm’n, 804 A.2d 131,
135 (Pa. Cmwlth. 2002). Moreover, in reviewing a Commission decision, “[this
C]ourt must give considerable weight and deference to [the Commission’s]
interpretation of its own regulations. . . . [which] is controlling unless clearly
erroneous, inconsistent with the regulation or statute, or unreasonable.”                 Racing
GAMbit, LLC v. State Horse Racing Comm’n, 184 A.3d 192, 195 n.5 (Pa. Cmwlth.
2018) (citation omitted). Ultimately, this Court is “required to affirm an order of the
Commission unless it is not in accordance with the law or is an arbitrary, capricious
or unreasonable determination lacking substantial evidence in support of its
findings.”15 Kulick v. Pa. State Harness Racing Comm’n, 540 A.2d 620, 623 (Pa.
Cmwlth. 1988); see also Bocachica v. Pa. State Horse Racing Comm’n, 843 A.2d
450 (Pa. Cmwlth. 2004). Lerman’s disagreement with the Commission’s conclusion
is not a basis on which the Adjudication and Order may be reversed.
              Here, the applicable Regulations make clear that willful and/or
intimidating or interfering contact during the Race was prohibited. Although contact
occurred between Big Saver and S.S. Minnow during the Race, there was no record
evidence that Big Saver “cross[ed] or weave[d] in front of [S.S. Minnow] in such a
way that [] impede[d] [S.S. Minnow] or constitute[d] or cause[d] interference[,]” 58
Pa. Code § 163.234 (emphasis added); “willfully jostle[d] [S.S. Minnow],” 58 Pa.
Code § 163.235 (emphasis added); or, “willfully str[uck] or touch[ed] [Cedeno or S.S.
Minnow] . . . for the purpose of interfering with [them],” 58 Pa. Code § 163.236
(emphasis added), and thus violated the Commission’s Regulations.16 Rather, based


       15
           “Substantial evidence necessary to support an administrative finding of fact is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Belote v.
State Harness Racing Comm’n, 688 A.2d 264, 268 (Pa. Cmwlth. 1997).
       16
           Contrary to Lerman’s claim, neither the Stewards nor the Commission based their
decisions upon unpromulgated regulations. Rather, both expressly relied upon language in the
Regulations in reaching their decisions.
                                                11
upon a review of the record, including the DVD, and “giv[ing] considerable weight
and deference to [the Commission’s] interpretation of its [] regulations” as we must,
this Court concludes that substantial evidence supports the Commission’s
determination that the bumping between Big Saver and S.S. Minnow was generally-
accepted contact incidental to horse racing that did not alter the Race’s outcome.
Racing GAMbit, LLC, 184 A.3d at 195 n.5.           Accordingly, the Commission’s
determination was not “arbitrary, capricious or unreasonable. . . .” Kulick, 540 A.2d
at 623.
            Based on the foregoing, the Commission’s Adjudication and Order is
affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael A. Lerman,                     :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
State Horse Racing Commission,         :   No. 1362 C.D. 2017
                      Respondent       :


                                     ORDER

            AND NOW, this 17th day of July, 2018, the State Horse Racing
Commission’s July 26, 2017 Adjudication and Order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
