IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eduardo E. Rojas, :

Petitioner :

 :

v. : No. 1256 C.D. 2017

 : Argued: December 4, 2017

Pennsylvania State Horse Racing :

Commission (Department of :

Agriculture), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: March 1, 2018

Eduardo E. Rojas (Petitioner) petitions for review of an Order of the 

Pennsylvania State Horse Racing Commission (Commission), Department of 

Agriculture, which affirmed his ejection from Penn National Race Course (Penn 

National) pursuant to Section 9326 of the Agriculture Code, 3 Pa. C.S. § 9326,

1

 

1 Section 9326(a) provides, in pertinent part, that:

[A] licensed racing entity may refuse admission to and eject from the racetrack 

enclosure operated by the licensed racing entity any person licensed by the 

[C]ommission under this chapter and employed at an occupation at the racetrack if 

the person’s presence is deemed detrimental to the best interests of horse racing and 

after citing the reasons for the determination in writing.
2

which is commonly called the Race Horse Industry Reform Act.2 For the reasons 

set forth below, we vacate the Commission’s Order and remand the matter for a new 

hearing.

Petitioner is a licensed thoroughbred horse trainer within the Commonwealth 

of Pennsylvania. On July 6, 2017, Petitioner received a Notice of Ejection from 

Penn National that stated it was permanently ejecting Petitioner from its race track:

following the June 30, 2017 conviction of his wife, Murray Rojas, on 

multiple counts of misbranding of prescription drugs in violation of 21 

U.S.C. §[ ]353(f)(1)(C). In light of this conviction and the Rojas’ 

history of transferring horses back-and-forth between each other creates

[sic] a negative perception of racing and pari-mutuel racing at Penn 

National and undermines and puts at risk the integrity and reputation of 

racing and pari-mutuel wagering in general as embodied at 58 Pa. Code

§[ ]163.60.

[3]

(Reproduced Record (R.R.) at 119a.)

The ejection letter further stated that the above conduct violated Penn 

National’s Horsemen’s Guide, which sets forth the following standards of conduct:

B. Dishonest, Offensive or Illegal Conduct

While criminal activity is clearly outside the scope of permissible 

conduct, and persons who engage in criminal activity will be subject to 

the appropriate legal actions, the standards of behavior for Racing 

Participants are considerably higher than merely avoiding conviction of 

a crime. Instead, persons must conduct themselves in a way that is not 

 

3 Pa. C.S. § 9326(a). The overarching purpose of the statute governing horse racing is to “foster 

an image of horse racing that would make the image of that ‘industry’ an irreproachable one, even 

in the eyes of the skeptical public.” Helad Farms v. Pa. State Harness Racing Comm’n, 470 A.2d 

181, 184 (Pa. Cmwlth. 1984). 

2 Act of October 28, 2016, P.L. 913, 3 Pa. C.S. §§ 9301-9374.

3 This regulation provides that “[d]isqualification of one spouse applies to the other only if 

it can be demonstrated that the horses owned or controlled by the disqualified spouse are also under 

the ownership or control of the spouse who has not been disqualified.” 58 Pa. Code § 163.60. 
3

only “lawful,” but that also promotes a high degree of Integrity within 

the industry. Persons who fail to live up to this standard are subject to 

sanctions by the Racetrack. By way of example only, and not intended 

as an exclusive list, the following activities are prohibited (whether 

within or outside of the Racetrack grounds):

 Criminal offenses of any kind;

 Violent or threatening behavior;

 Conduct that creates a negative public perception of [Penn National]

or the Racetrack;

 Conduct that undermines or puts at risk the integrity and reputation 

of the pari-mutuel wagering and gaming industry in general;

 Violation of the Racetrack’s safety policies or rules;

 Failure to comply with the lawful directions of authorized Racetrack 

representatives; and 

 Misrepresentation in any application or form or other disclosure 

statements made to the Racetrack or to any governmental regulatory 

body.

(R.R. at 119a-20a (quoting 2017 Horsemen’s Guide, at 6 Hr’g Tr., Ex. 2).) 

According to the ejection notice, Petitioner’s conduct was a detriment to racing at 

Penn National. (Id. at 120a.)

Petitioner timely appealed this ejection to the Commission, which held a 

hearing on July 26, 2017. Eric Johnston, director of racing operations at Penn 

National, was the sole witness for Penn National. Petitioner did not testify or present 

any witnesses. 

Following the hearing, the Commission issued Findings of Fact, which 

included, in pertinent part, the following:

11. On March 29, 2015, trainer Murray Rojas transferred her entire 

stable to her husband, [Petitioner]. A total of 32 horses. 

12. Mr. Johnston testified that on March 29, 2015, that [sic] the FBI 

sent “target letters” to approximately 40-50 trainers in the stable 

area looking at their records and possible indictments. 
4

13. Mr. Johnston testified that on July 26, 2017,[4][Petitioner] 

transferred 20 horses back to his wife Murray Rojas because of 

personal issues between them. 

14. On August 12, 2015, Murray Rojas authorized the transfer of 

twelve (12) horses to [Petitioner]. 

15. On August 12, 2015, the [U.S.] Attorney’s Office indicted Murray 

Rojas on charges of wire fraud and conspiracy to administer drugs 

to horses on race day. 

16. Mr. Johnston testified that he took the transfer of horses back and 

forth between Murray Rojas and [Petitioner] into consideration 

when he drafted the July 6, 2017 Ejection since it was difficult for 

Penn National to define a separation of operations between them. 

17. Mr. Johnston testified that [Petitioner]’s conduct of transferring 

horses back and forth with Murray Rojas created a “negative public 

perception” of Penn National and “undermines or puts at risk the 

integrity and reputation of the pari-mutuel wagering and gaming 

industry in general” and formed the basis of the ejection. 

* * *

21. Mr. Johnston reviewed the trainer profiles for Mr. and Mrs. Rojas:

Murray Rojas starts: in 2007 – 628 starts; in 2008 – 565 starts; in 

2009 – 511 starts; in 2010 – 543 starts; in 2011 – 507 starts; in 2012 

– 450 starts; in 2013 – 401 starts; in 2015 – 87 starts; in 2016 – 0 

starts; in 2017 – 0 starts[];

[Petitioner] starts: in 2007 – 0 starts; in 2008 – 0 starts; in 2009[ –

]0 starts; in 2010 – 0 starts; in 2011 – 0 starts; in 2012 – 0 starts; in 

2013 – 0 starts; in 2014 – 2 starts; in 2014 – 335 starts; in 2015 –

169 starts; in 2016 – 199 starts; in 2017 [–] 114 starts.

[5]

22. Mr. Johnston reviewed the 2015 calendar year performance by 

horse and by start for Murray Rojas and [Petitioner] and determined 

that in 2015 “there was a lot of crossover in horses that were in 

 

4 The actual date of transfer was July 26, 2015, not July 26, 2017. (See R.R. at 40a-41a, 

115a-16a.)

5 There also appears to be an error in the number of starts in 2014. The evidence shows 

Murray Rojas had 335 starts in 2014, and Petitioner had just 2 starts in 2014. (R.R. at 46a-49a.) 
5

Murray Rojas’ care being run right back under [Petitioner]’s care,” 

which corresponded with earlier horse “transfers.” 

23. Mr. Johnston testified that 23 of 35 horses that Murray Rojas ran in 

2015 were also run by [Petitioner]. In 2015, 67 of 87 starts were 

common horses between Murray Rojas and [Petitioner]. 

24. In 2015, [Petitioner] ran 45 horses that year, 23 of which were 

common horses between [Petitioner] and Murray Rojas. 

25. [Petitioner] had 169 starts in 2015 – 115 of those starts were 

common horses also started by Murray Rojas that same year. 

* * *

27. In August 2015, after Murray Rojas transferred her horses back to 

[Petitioner], the foal certificate records[6]indicate that Murray 

continued to access those specific horse’s [sic] files. 

28. Mr. Johnston testified that after the federal jury verdict on June 30, 

2017, Murray “cleaned out the balance of the foal certificates” for 

horses in the files. Mr. Johnston testified that even after Murray 

Rojas’ conviction[,] “she came in and picked up foal certificates 

and was doing work for Eddie [Petitioner].” 

29. After her conviction on June 30, 2017, on July 4 and 5, 2017, 

Murray Rojas removed the foal certificates of 36 horses from the 

“Foal Certificate” list. Five (5) of those horses had been previously 

run by Murray Rojas and by [Petitioner] in 2015. 

* * *

31. Penn National Exhibit 9 indicates that:

 On June 1, 2017, the #5 horse (Chapel of Love) was 

entered for Trainer [Petitioner] and saddled by “his wife” 

[–] Murray Rojas;

 On June 8, 2017, the #3 horse (Jolly’s Calling) was trained 

by [Petitioner] and saddled by his wife Murray Rojas;

 

6

“[F]oal certificate[s] reflect who has possession of a specific horse.” (Comm’n 

Adjudication, Findings of Fact (FOF) ¶ 26.)
6

 On June 9, 2017, the #2 horse (Wolfie) was trained by 

[Petitioner] and saddled by his wife Murray Rojas;

 On June 10, 2017, the #11 horse (I’m Perfection) was 

trained by [Petitioner] and saddled by his wife Murray 

Rojas;

 On June 21, 2017, the #4 horse (Toss the Tub) was trained 

by [Petitioner] and saddled by his wife Murray Rojas.

32. [Petitioner] had 9 starts in June [2017] – Murray Rojas saddled five 

(5) of those horses.

33. Mr. Johnston testified that these records strengthened the decision 

to eject [Petitioner] because there was no separation between the 

[Petitioner] and Murray Rojas. 

34. On June 9, 2017[,] the horse named Wolfie trained by [Petitioner] 

won the 3rd Race. The winning photograph of the “winners circle” 

does not depict [Petitioner], but depicts Murray Rojas. 

35. On August 12, 2015, following the initial indictment of Murray 

Rojas, Penn National officials met with Murray Rojas and 

[Petitioner] to come to an agreement regarding the participation of 

Murray in [Petitioner]’s training business.

36. Penn National sought an Agreement by the Rojas[es] to keep a 

complete separation of duties between Murray Rojas and 

[Petitioner].

37. Murray Rojas and [Petitioner] did not sign the proposed agreement 

between the parties. 

38. On August 12, 2015, the U.S. Attorney’s Office issued a press 

release indicating that trainer Murray Rojas[] had been indicted for 

wire fraud and conspiracy to administer prohibited substances to 

horses on race day. 

39. On June 2, 2016, the U.S. Attorney’s Office issued a press release 

indicating that additional criminal charges were being brought 

against trainer Murray Rojas[] for 21 counts of wire fraud and 

conspiracy to administer prohibited substances to horses on race 

day. 
7

40. On July 5, 2017, the U.S. Attorney’s Office issued a press release 

announcing the June 30, 2017 conviction of Murray Rojas on 14 

felony counts for misbranding prescription drugs, conspiracy[,] and 

the administration of prohibited drugs to horses on race day. 

41. Mr. Johnston testified that the press releases identified the “trainer” 

[Murray Rojas] as being from Penn National or being associated 

with Penn National[, which] is detrimental to Penn National’s 

gaming and racing license. [(Second alteration added.)]

42. Mr. Johnston testified that press releases, and press reports and 

public comments create the general perception that “racing is less 

than honest” and those perceptions affected the decision to eject 

[Petitioner]. Mr. Johnston concluded that no one can prove that 

[Petitioner] and Murray Rojas are not acting as one operation. 

* * *

44. Mr. Johnston, on cross-examination, testified that the horse 

transfers were all proper and approved by the stewards. 

45. Penn National demonstrated no violation of any racing regulation 

or any conviction by [Petitioner]. 

* * *

47. Five (5) horses currently trained by [Petitioner] were previously 

trained by Murray Rojas. 

48. Mr. Johnston testified that [Petitioner] has not shown separation 

between he [sic] and Murray Rojas and that they still operated as 

one even in June [of 2017] when Murray saddled [Petitioner]’s 

horses and Murray picked up the foal certificates. [(First and third 

alterations added.)]

49. [Petitioner] presented no testimony or documentary evidence at the 

July 26, 2017 hearing. 

50. On July 6, 2017, the Commission, through the Bureau of 

Thoroughbred Horse Racing, issued Ruling No. 17053C 

permanently revoking the owners/trainers’ licenses of Murray 

Rojas based upon her June 30, 2017[] conviction on 14 felony 

counts for conspiring with three veterinarians to have drugs 
8

administered on race day; [and] backdating invoices and records 

with the intent to defraud and mislead the Commission. 

(Comm’n Adjudication, Findings of Fact (FOF) ¶¶ 11-17, 21-25, 27-29, 31-42, 44-

45, 47-50 (citations omitted).) 

Based upon these facts, the Commission concluded that:

Documentary evidence of [Petitioner]’s continuous and ongoing 

conduct, racing transactions and business relationship and association 

with a trainer (regardless of marital status) who was indicted and 

ultimately convicted of 14 felony counts of misbranding prescription 

drugs for horses on race day and conspiring with three veterinarians to 

have drugs administered to horses on race day, supports Penn 

National’s decision that [Petitioner]’s presence at Penn National is 

inconsistent with the best interests of racing or the orderly conduct of 

the race meeting at Penn National. 

(Id., Conclusion of Law ¶ 9 (citations omitted).) In reaching this conclusion, the 

Commission explained that the evidence presented by Penn National “clearly 

demonstrated the ongoing business connection between Murray Rojas and 

[Petitioner].” (Comm’n Adjudication at 19.) It dismissed Petitioner’s argument that 

the transfers between Murray Rojas and Petitioner were approved by the Board of 

Stewards (Stewards), stating:

[w]hile that aspect maybe [sic] true, [Petitioner] fails to grasp that the 

continuous transfer of horses and the running of the very same horses 

back and forth between Murray Rojas and [Petitioner] certainly 

generated the appearance of a joint business enterprise. . . . Standing 

alone, each piece of documentary evidence might not be sufficient to 

support Penn National’s ejection of [Petitioner;] however, taken as a 

whole, the records demonstrate to this Commission a seamless pattern 

of business between Murray [Rojas] and [Petitioner] such that could 

create a negative public perception. This determination is not taken 

lightly.
9

(Id. at 20.) 

Further, the Commission found that, although it took no action in relation to 

Petitioner’s license, that did “not alter Penn National’s statutory authority to exercise 

its private property rights.” (Id. at 21.) Finally, the Commission concluded 

Petitioner’s marital status to Murray Rojas was irrelevant because it “would 

conclude that [Penn National]’s ejection was reasonable even if Murray Rojas and 

[Petitioner] were not married.” (Id. (emphasis in original).) Although the 

Commission affirmed Penn National’s decision to eject Petitioner, it modified the 

decision by reducing the ejection from permanent in duration to a term of 1,095 days 

(3 years). (Id. at 21-22, Comm’n Order.) 

On September 8, 2017, Petitioner filed a timely Petition for Review 

(Petition).

7

 On appeal,8 Petitioner contends the Commission abused its discretion in 

finding he was a detriment to racing based upon what was specifically charged in 

the ejection letter and that his due process rights were violated when the Commission 

relied upon a “joint business enterprise” theory to uphold the ejection, a theory that 

was not charged and, even if it was, is not prohibited. In addition, Petitioner argues 

there is not substantial evidence to support the Commission’s finding that he is a 

detriment to racing and that the Commission improperly shifted the burden of proof 

 

7 Petitioner also filed an Application for Stay Pending Appeal (Application for Stay) and 

Application for Expedited Stay Decision and for Advancement of Argument (Application to 

Expedite) on October 16, 2017. The Application to Expedite was granted in part and argument on 

the Application for Stay was held via teleconference on October 26, 2017. The Court subsequently 

granted Petitioner’s Application to Expedite argument on his Petition by Order dated October 30, 

2017, which scheduled argument on the merits of his Petition for the December term. By Order 

dated November 9, 2017, the Court denied his Application for Stay. 

8 On appeal, “[w]e are 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.” Kulick v. Pa. State Harness Racing Comm’n, 540 

A.2d 620, 623 (Pa. Cmwlth. 1988). 
10

to him instead of Penn National. Finally, in his brief, he argues the Commission 

violated its own regulations by having only one member sign the adjudication, not 

two, rendering the Commission’s decision a nullity. 

The Commission argues that Penn National had express statutory authority to 

eject Petitioner from its racetrack once it deemed him a detriment to racing. All that 

Penn National needed to show was that the reason for ejecting Petitioner was 

reasonable. Based upon the evidence presented by Penn National, which was 

unrebutted, the Commission argues there was ample evidence to find the ejection 

was reasonable. It also contends the ejection notice was proper and Petitioner knew 

or had reason to know that his association with Murray Rojas was the true issue as 

it was raised as a concern long before his actual ejection. The Commission disputes 

that the burden of proof was wrongfully placed on Petitioner and insists it was on 

Penn National. Finally, it maintains the Adjudication and Order was unanimously 

voted upon by the nine-member Commission and is consistent with the law.

Penn National9stresses its right as a private-property owner to eject persons 

from its track who are detrimental to racing, even if the person remains licensed by 

the Commission. It notes, like the Commission, that it merely needs to make a 

reasoned determination based upon an appearance of impropriety. Based upon the 

evidence it presented, including the transfer of horses between the Petitioner and 

Murray Rojas, the fluctuating statistics, the number of common horses, and Murray 

Rojas’s continued access and involvement with Petitioner’s training activities, even 

after her indictment, Penn National argues there is more than substantial evidence to 

support its decision to eject Petitioner. Penn National also argues that Petitioner’s 

conduct need not be criminal in nature or even violate a specific racing rule or 

 

9 Penn National Turf Club, LLC and Mountainview Thoroughbred Racing Association, 

LLC, intervened in this action and are referred to throughout as “Penn National.”
11

requirement; it merely needs to create an appearance of impropriety, which the 

continued close association certainly created. Penn National maintains its notice of 

ejection was proper, as was the Commission’s final Adjudication and Order. 

Because it raises a threshold question implicating the Court’s jurisdiction, we 

begin with Petitioner’s argument that the Commission violated its own regulations 

by having only one member sign the adjudication, not two, rendering the 

Commission’s decision a nullity. In support thereof, Petitioner cites 58 Pa. Code 

§ 165.184(a), which provides in pertinent part that “[a] final order or adjudication 

shall be signed and approved by two members of the Commission who shall have 

the right to enter the final order or adjudication based upon the record made at the 

hearing or hearings conducted by the Commission.” 

The Adjudication and Order here is signed only by Russell C. Redding, 

Chairman of the Commission. As the Commission points out, the regulation at issue, 

58 Pa. Code § 165.184(a), was promulgated in 1969 under the former statute, which 

was repealed and replaced by the Race Horse Industry Reform Act. The new statute 

specifically provides that all rules and regulations previously promulgated “remain 

in effect except to the extent that they are in direct conflict with this chapter.” 

Section 9311(h)(1) of the Race Horse Industry Reform Act, 3 Pa. C.S. § 9311(h)(1). 

Here, the regulation is in direct conflict with the current statute. Under the current 

statute, there are nine voting commissioners and actions of the Commission require 

a simple majority vote. 3 Pa. C.S. § 9311(b), (f)(1). Under Section 201(a) of the 

prior act, there were only three commissioners. Act of December 17, 1981, P.L. 

435, as amended, formerly 4 P.S. § 325.201(a), repealed by Section 5(f) of the Act 

of February 23, 2016, P.L. 15. The regulation requiring an adjudication to be signed 

and approved by two members necessarily conflicts with the current statute because 
12

otherwise two commissioners could bind the nine-member Commission, despite the 

statute specifically requiring more. In addition, the Adjudication was in accordance 

with the new procedures the Commission adopted to govern hearings related to 

ejections, which simply require the decision be made at the close of the hearing and 

a written adjudication supporting the decision be issued within 15 days of the 

decision.10 It was not reversible error for the Adjudication to contain the signature 

of only the Chairman of the Commission acting on behalf of the commissioners 

present at the hearing, who unanimously agreed with the decision. 

We next turn to Petitioner’s claim that the Commission abused its discretion 

in finding he was a detriment to racing based, not upon the allegations charged in 

the ejection notice but instead upon an allegation not charged: his alleged operating 

as “one business enterprise” with Murray Rojas. By going outside of the allegations 

charged by Penn National, Petitioner claims he was denied due process. 

“In an administrative hearing, due process requires, at a minimum, notice and 

the opportunity to be heard.” Vaders v. Pa. State Horse Racing Comm’n, 964 A.2d 

56, 58 (Pa. Cmwlth. 2009). Here, Petitioner did receive notice and a hearing. 

However, the Notice of Ejection does not specifically contain an allegation that

Petitioner operated “one business enterprise” with Murray Rojas, the offense that the 

Commission relied upon in upholding Petitioner’s ejection. The July 6, 2017 Notice 

of Ejection states that Petitioner was being permanently ejected from Penn National:

following the June 30, 2017 conviction of his wife, Murray Rojas, on 

multiple counts of misbranding prescription drugs . . . . In light of this 

conviction and the Rojas’ history of transferring horses back-and-forth 

between each other creates a negative perception of racing and pari-

 

10 A copy of the new procedures is available in the Joint Supplemental Record at pages 

42b-47b. The Commission’s new procedures were published in the Pennsylvania Bulletin on June 

3, 2017, and were served on Petitioner along with the Notice of Hearing. (Id. at 36b.)
13

mutuel racing at Penn National and undermines and puts at risk the 

integrity and reputation of racing and pari-mutuel wagering in general 

as embodied in 58 Pa. Code §[]163.60.

(R.R. at 119a.) 

The Commission and Penn National claim that it was apparent from the start 

of the hearing that Petitioner’s association with Murray Rojas was at issue, and that

Petitioner did not object. While it is true that Petitioner’s association with Murray 

Rojas was a common theme throughout the hearing, this alone is not adequate. The 

Notice of Ejection did not provide notice that his association with Murray Rojas was 

at issue, or charge him with operating as “one business enterprise,” and referenced

just the transfer of horses between the two. We, therefore, cannot say that Petitioner 

was apprised of the charges against which he needed to defend himself. As a result, 

his due process rights were violated. 

Petitioner requests that the Order of the Commission be reversed, the ejection 

notice be vacated, and all rights, benefits, and privileges he previously held be 

restored. However, “[i]t is axiomatic that a violation of a party’s right to due process 

does not entitle an aggrieved defendant to dismissal of the claim.” Wilkins Twp. v. 

Wage Policy Comm. of Wilkins Twp. Police Dep’t, 162 A.3d 581, 588 (Pa. Cmwlth. 

2017). If notice is inadequate, “the remedy is a remand for an additional hearing 

after a new notice.” Caba v. Weaknecht, 64 A.3d 39, 66 (Pa. Cmwlth. 2013).

Accordingly, we vacate the Commission’s determination and remand for a 

new hearing after new notice.

11

 

11 Given our disposition, we need not reach Petitioner’s remaining issues.
14

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eduardo E. Rojas, :

Petitioner :

 :

v. : No. 1256 C.D. 2017

 :

Pennsylvania State Horse Racing :

Commission (Department of :

Agriculture), :

Respondent :

O R D E R

NOW, March 1, 2018, the Order of the Pennsylvania State Horse Racing 

Commission (Commission), in the above-captioned matter, is VACATED, and the 

matter is REMANDED to the Commission for further proceedings.

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eduardo E. Rojas, :

Petitioner :

:

v. : No. 1256 C.D. 2017

: Argued: December 4, 2017

Pennsylvania State Horse Racing :

Commission (Department of Agriculture), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY PRESIDENT JUDGE LEAVITT FILED: March 1, 2018

Respectfully, I dissent. 

I agree with the majority that Eduardo Rojas1 had no notice of Penn 

National’s newly articulated reason for ejecting him from its racetrack and, thus, was

denied due process. I disagree, however, with the majority’s decision to remand the 

matter to give Penn National a second chance to prove its case. Because Penn 

National did not make its case against Rojas on its own written charges, the 

Commission’s adjudication should be reversed. 

On July 6, 2017, Penn National sent Rojas a Notice of Ejection, which 

stated: 

Mr. Eduardo Rojas is hereby permanently ejected from Penn 

National Race Course (“Penn National”) following the June 30, 

2017 conviction of his wife, Murray Rojas, on multiple counts of 

misbranding prescription drugs in violation of 21 U.S.C. 

§353(f)(1)(C). In light of this conviction and the Rojas’ [sic] 

 

1 Rojas is a horse trainer.
MHL-2

history of transferring horses back-and-forth between each other 

creates a negative perception of racing and pari-mutuel racing at 

Penn National and undermines and puts at risk the integrity and 

reputation of racing and pari-mutuel wagering in general as 

embodied in 58 Pa. Code §163.60. 

Reproduced Record at 119a (R.R. __). Rojas appealed the ejection to the 

Commission and came to the hearing prepared to defend the two very specific 

charges Penn National listed in its notice: (1) Rojas’ wife’s recent conviction; and 

(2) horse transfers between Rojas and his wife. 

On the first charge, Rojas asserted that his wife’s conviction could not 

be attributed to him without evidence that implicated him in her criminal 

misconduct. None was offered by Penn National. On the second charge, Rojas 

produced evidence that each transfer of horses had been specifically approved by the 

Commission. 

At the hearing Penn National effectively dropped these two charges. 

Instead, it pursued a new charge that Rojas’ wife operated as his “alter ego” in a 

single business enterprise. Notes of Testimony, 7/26/2017, at 39; R.R. 43a. Rojas 

repeatedly objected to this evidence as wholly irrelevant to the written charges on 

which Penn National based its ejection. Rojas had every right to believe the 

Commission would sustain his relevancy objections and reverse his ejection when

Penn National provided no evidence to support the charges in its ejection notice. 

Instead, the Commission created its own due process violation by upholding Rojas’ 

ejection on the basis of Penn National’s newly claimed “one business enterprise” 

theory.2 

 

2 Even if Rojas received adequate notice of the “one business enterprise” theory, Penn National 

failed to carry its burden on that charge. Its key piece of evidence was a family picture showing 

Murray Rojas standing beside one of her husband’s winning horses. R.R. 121a. Other proffered

evidence consisted of commission-approved horse transfers between Murray and Eduardo Rojas, 
MHL-3

The majority holds that a remand is the proper remedy where due 

process rights are violated by reason of an agency’s inadequate notice. Caba v. 

Weaknecht, 64 A.3d 39, 66 (Pa. Cmwlth. 2013). However, the Commission did not 

issue the notice; rather, the notice came from a private third party, Penn National. 

Moreover, Penn National’s notice was not “deficient” as to the listed charges. It was 

plain: the ejection was based on (1) Rojas’ wife’s recent conviction; and (2) horse 

transfers between Rojas and his wife. Penn National simply failed to make its case 

on those listed charges. 

The purpose of a remand is not to give a party who has failed to sustain 

its evidentiary burden a second chance. Williams v. Bonair Foundry Co., 257 A.2d 

69, 72 (Pa. Super. 1969). Repeatedly, this Court has held that we will not remand 

to give a party “the proverbial second bite at the apple” and will not allow a party to 

present evidence that was available, or could have been available, at the time of the 

first hearing. Primecare Medical, Inc. v. Unemployment Compensation Board of 

Review, 760 A.2d 483, 488 (Pa. Cmwlth. 2000). Because Penn National has failed 

to provide any admissible evidence to support its charges, the Commission erred as 

a matter of law in upholding the ejection. 

Accordingly, instead of remanding for a do-over by Penn National, I 

would reverse.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

and a website printout of their individual starts in thoroughbred races over several years. R.R. 

112a-118a; Supplemental Reproduced Record at 8b-35b. These pieces of circumstantial evidence 

fall short of proving that Rojas and his wife were operating one business enterprise. Penn National 

offered no direct or documentary evidence to support its business enterprise theory.