COMMONWEALTH OF PENNSYLVANIA

STATE BOARD OF EDUCATION

:
IN RE: :
:
APPLICATION OF ERIE COUNTY : Docket No. 2019-001
SEEKING TO ESTABLISH A :
COMMUNITY COLLEGE :
:

EMPOWER ERIE, LLC’S REPLY TO INTERVENOR SENATOR JOSEPH SCARNATI,

III’S ANSWER AND PROTEST TO APPLICATION TO SUPPLEMENT HEARING
EXHIBITS AND MOTION TO STRIKE PROPOSED SUPPLEMENT

Intervenor Empower Erie, LLC (hereinafter “Empower Erie”), by and through its

undersigned counsel, hereby files this Reply to Intervenor Senator Joseph Scarnati, III’s

(hereinafter “Scarnati”) Answer and Protest to Intervenor Empower Erie’s Application to

Supplement Hearing Exhibits and Motion to Strike Proposed Supplement. As outlined infra, the

General Rules of Administrative Practice and Procedure (hereinafter “GRAPP”) specifically

permit the State Board of Education (hereinafter the “Board”) to accept the evidence proffered

by Empower Erie via its Application to Supplement Hearing Exhibits. Said evidence speaks

directly to the merits of these proceedings and the acceptance of the same into the record will not

prejudice the public interest or the rights of any participant hereto.

In further response to Scarnati’s Answer, Protest, and Motion to Strike, Empower Erie

avers as follows:

1. Denied. Answering further, on January 27, 2020, the State Board of Education’s

Ad Hoc Committee on the Erie County Community College Plan Hearing (hereinafter the “Ad

Hoc Committee”) issued an Order, directing the parties to this matter that “[a]ll documentary

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evidence intended to be presented at the hearing on March 18, 2020, shall be pre-marked and

submitted to the Board by Friday, March 6, 2020, at 4:00 p.m.”

2. Admitted.

3. Admitted.

4. This paragraph refers to regulations that speak for themselves. It is also denied

that the regulations cited are applicable to Empower Erie’s Application to Supplement Hearing

Exhibits or the Erie Regional Chamber and Growth Partnership’s (hereinafter the “ERCGP”)

Report, entitled Erie County’s 21st Century Plan to Effectively Grow the Talent Pipeline

(hereinafter the “ERCGP Report”).

5. Admitted.

6. Admitted.

7. Admitted.

8. Admitted.

9. Denied as stated. It is admitted that Erie County submitted its expert reports as

required by the Ad Hoc Committee’s January 27, 2020 Order. It is denied that Intervenors the

Norther Pennsylvania Regional College (hereinafter the “NPRC”) and Scarnati timely submitted

expert reports.

10. Admitted.

11. Admitted.

12. Denied as stated. It is admitted that Empower Erie filed its Application to

Supplement Hearing Exhibits on May 18, 2020. That document, however, speaks for itself.

13. Admitted.

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 14. Denied as stated. It is admitted, upon information and belief, that the ERCGP

Report was the result of an independent study commissioned entirely outside of this process by

the ERCGP pursuant to its own organizational objectives under the direction of its President and

CEO, James Grunke (hereinafter “Grunke”). It is further admitted that two representatives of the

NPRC (Aldo Jackson and Mary Bula) were members of a steering committee formed relative to

the study and had some level of participation therein, including reviewing a draft iteration of the

ERCGP Report. It is also admitted, upon information and belief, that the NPRC was aware of

the ERCGP study and the report’s commissioning, as both an executive-level employee and

member of its Board of Trustees participated in the creation of the ERCGP Report.

15. This paragraph contains both a prayer for relief and a conclusion of law to which

no responses are required. To the extent that the averments of this paragraph are determined to

be factual in nature, they are denied.

16. Denied as stated. It is admitted that Erie County concurred with and joined in the

filing of Empower Erie’s Application to Supplement Hearing Exhibits. It is denied, however,

that Empower Erie was required to seek the concurrence of either the NPRC or Scarnati prior to

filing its Application with this Board.

17. Admitted. Answering further, the ERCGP Report was not referenced in

Empower Erie’s Application to Amend its Pre-Hearing Statement because it did not yet exist at

the time of that document’s filing.

18. Denied. Answering further, the ERCGP Report is not an expert report prepared

by Empower Erie for purposes of this matter. Rather, the ERCGP Report was produced pursuant

to a wholly independent and unrelated study commissioned by the ERCGP, the results of which

are instructive in this proceeding and speak directly to the statutory determinations the State

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Board of Education must make in its final adjudication of Erie County’s Application for a

Community College. More specifically, the ERCGP Report is vital to demonstrate Erie

County’s existing and prospective need for a community college – a principal question before

this Board for resolution. 24 P.S. § 19-1902-A(d). The ERCGP Report is a compilation of the

most current and comprehensive data that speaks to Erie County’s urgent need for additional

higher education opportunities.

19. Denied as stated. It is admitted that the Report’s author was not listed as a

witness for the same reason that the ERCGP Report was not previously identified as an exhibit –

the Report was not yet finished, and Empower Erie and Erie County were not even aware of the

commissioning of the study at the time Pre-Hearing Statements were due to be filed in this

matter. Additionally, Empower Erie has already indicated that the Report’s author, Debra

Lyons, will be made available to testify during the hearing should this Board deem her testimony

necessary. Grunke, as the President and CEO of the ERCGP, can and will testify as to details of

the study the ERCGP commissioned, and the results of that study, in his capacity as a fact

witness.

20. Denied. For the reasons already stated herein, the ERCGP Report is not an expert

report. Consequently, no supplementation is required.

21. Denied. Empower Erie incorporates by reference its answer to Paragraph 20 in

further response.

22. Denied. Answering further, the averments of this paragraph constitute an “apples

to oranges” comparison. Scarnati failed to timely submit his expert report in compliance with

the Ad Hoc Committee’s January 27, 2020 Order in this matter. It is further denied that said

report will be authenticated and accepted by this Board as an expert report.

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 23. This paragraph contains neither factual averments nor conclusions of law.

Consequently, no response is required. Answering further, Empower Erie has merely identified

new evidence as an exhibit for purposes of this hearing that only become available after the

deadlines imposed by this Board as well as a potential authentication witness to the extent her

testimony may be necessary.

24. Denied as stated. It is admitted that the identification of the Report is beyond the

deadline set forth in the Ad Hoc Committee’s January 27, 2020 Order. It is denied that the

January 27, 2020 Order addressed evidence that did not exist at the time of the Order’s deadline.

There is nothing under GRAPP, or set forth in any Order issued by this Board, that prohibits a

party from offering new evidence at the time of hearing, or this Board from accepting the same.

25. Denied as stated. Empower Erie is without information sufficient to determine

the truth of the averments of this paragraph. Consequently, there are denied. Answering further,

Intervenors Scarnati and the NPRC are aligned in mission in this matter and have acted in

concert throughout these proceedings. Consequently, Empower Erie believes it reasonable to

assume the NPRC is sharing information with Scarnati. Empower Erie also notes that, in his

response, Scarnati does not affirmatively state whether he knew of the existence of the study or

the ERCGP Report prior to the filing of Empower Erie’s Application to Supplement Exhibits.

26. Denied as stated. Empower Erie’s assertions are set forth in its Application to

Supplement Exhibits – a document that speaks for itself. Any characterization of those

assertions by Scarnati is specifically denied. After reasonable investigation, Empower Erie is

without information sufficient to determine whether and to what extent the NPRC objected to the

contents of the Report and its basis for the same. The NPRC is free to testify as to any

objections it had, and the basis for those objections, during the hearing.

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 27. Denied as stated. It is admitted that the Report states the following as its first of

six recommendations: “Establish a brick-and-mortar public community college to build a

workforce to support Erie County’s economic growth.” Answering further, the Report also

states, “[a] new public community college in Erie would be transformational and a stake in the

ground for a community that is working hard on several fronts to propel itself toward a new level

of economic prosperity.” The ERCGP Report further concluded, “Erie cannot achieve this

economic success without creating upward mobility opportunities for its workforce and

increasing their skill sets that align with the needs of the County’s diverse business sectors.” It is

specifically denied that “there was virtually no data to support such recommendation” as Scarnati

alleges. It is also denied that there is anything suspicious about the ERCGP Report or its

findings.

28. Denied as stated. It is admitted, upon information and belief, that the final

ERCGP Report as submitted differed significantly than the draft report based, in large part, upon

the feedback received from the steering committee members, including the NPRC

representatives, and upon further review by Garner Economics. Upon information and belief,

the recommendation in the Report for the establishment of a brick and mortar community college

in Erie County did not change and appeared in both the draft version, and the final version, of the

ERCGP Report.

29. Denied. Empower Erie is without information adequate to determine what the

NPRC participants’ positions were vis-à-vis the ERCGP Report at the time they reviewed the

draft of the same. Consequently, the averments of this paragraph are denied.

30. Denied as stated. The ERCGP Report is a written document that speaks for itself.

What it does conclude is that a brick and mortar community college is needed in Erie County. If

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the conclusions of the study were that the NPRC was adequately serving the higher education

needs of Erie County, the ECGP Report would have said so.

31. Denied. Answering further, Empower Erie was under no obligation to make any

advanced notation of evidence that did not previously exist. Rather, Empower Erie obtained a

copy of the Report, and, after having had reasonable opportunity to review and determine

whether it was relevant to these proceedings, Empower Erie acted in a timely manner in filing its

Application with this Board following the Report’s issuance on or about May 4, 2020.

32. Admitted in part, denied in part. It is admitted that Empower Erie filed an

Application to Amend its Pre-Hearing Statement on or about February 19, 2020 to include James

Grunke as a fact witness. It is denied that creates any presumption that Empower Erie knew that

a report had been, or was in the process of being prepared, and would be finalized in May of

2020.

33. Denied as stated. It is admitted that Empower Erie did not mention the Report in

its February Application to this Board because the Report did not exist at that time of that

document’s filing. It is also denied that Empower Erie was required to reserve the right to

submit new evidence in any pre-hearing submission. Rather, this Board has the discretion to

consider new evidence at the time of hearing under GRAPP. See, e.g. 1 Pa. Code § 31.2.

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 WHEREFORE, Empower Erie respectfully requests that this Board 1) deny Senator

Joseph Scarnati, III’s Protest to Empower Erie’s Application to Supplement Hearing Exhibits;

and 2) deny Scarnati’s Motion to Strike Proposed Supplement.

Respectfully submitted,

____________________________________
David C. Hittinger, Jr., Esquire
Attorney ID No. 202495
Mark S. Stewart, Esquire
Attorney ID No. 75958
Eckert Seamans Cherin & Mellott, LLC
213 Market St., 8th Floor
Harrisburg, PA 17101
nhittinger@eckertseamans.com
mstewart@eckertseamans.com
Telephone: (717) 237-6000
Facsimile: (717) 237.6019

Date: June 3, 2020 Attorneys for

Empower Erie, LLC

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 COMMONWEALTH OF PENNSYLVANIA
STATE BOARD OF EDUCATION

:
IN RE: :
:
APPLICATION OF ERIE COUNTY : Docket No. 2019-001
SEEKING TO ESTABLISH A :
COMMUNITY COLLEGE :
:

ORDER

AND NOW, this ___ day of _______________, 2020, upon consideration of Intervenor

Empower Erie, LLC’s Reply to Intervenor Senator Joseph Scarnati, III’s Answer and Protest to

Intervenor Empower Erie’s Application to Supplement Hearing Exhibits and Motion to Strike

Proposed Supplement, it is hereby ORDERED that the Protest and Motion to Strike are

DENIED.

By the Board:

____________________________

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 CERTIFICATE OF SERVICE

I hereby certify that I am this day serving a copy of the foregoing Reply upon the persons

and in the manner indicated below, which service satisfies the requirements Pa.R.A.P. 121.

Via United States Postal Service First Class Mail:

James J. Kutz, Esquire Adam L. Santucci, Esquire

Michael W. Winfield, Esquire
Post & Schell, P.C.
17 North Second Street, 12th Floor
Harrisburg, PA 17101
Attorneys for County of Erie
McNees, Wallace & Nurick, LLC
100 Pine Street, P. O. Box 1166
Harrisburg, PA 17108
Attorney for Intervenor
Senator Joseph Scarnati, III

Kevin L. Hall, Esquire Thomas P. Howell, Deputy General Counsel

Tucker Arensberg, P.C. Governor’s Office of General Counsel
2 Lemoyne Drive, Suite 200 Commonwealth of Pennsylvania
Lemoyne, PA 17043 333 Market Street, 17th Floor
Attorney for Intervenor Harrisburg, PA 17101
Northern Pennsylvania Regional College Counsel to the State Board of Education

Dated: June 3, 2020 ____________________________________

David C. Hittinger, Jr., Esquire
Attorney ID No. 202495
Eckert Seamans Cherin & Mellott, LLC
213 Market St., 8th Floor
Harrisburg, PA 17101
nhittinger@eckertseamans.com
mstewart@eckertseamans.com
Telephone: (717) 237-6000
Facsimile: (717) 237.6019

Attorney for Empower Erie, LLC

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