OPINION NOT REPORTED

MEMORANDUM OPINION BY MICHAEL H. WOJCIK, Judge.

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 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 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

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) 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 §35.98 or filing of a petition for declaratory order under 1 Pa. Code §35.19.9" Id. at ¶24.

As this Court has explained:

Matesic v. Maleski, 624 A.2d 776, 778 (Pa. Cmwlth. 1993) (citations omitted).

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 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."

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 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, 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.

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.

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:

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 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

Accordingly, the Commission's preliminary objection is sustained and the Union's Amended Petition is dismissed.18

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.