COMMONWEALTH OF PENNSYLVANIA

STATE BOARD OF EDUCATION

IN RE:

APPLICATION OF ERIE COUNTY Docket No. 2019-001

SEEKING TO ESTABLISH A
COMMUNITY COLLEGE

ERIE COUNTY’S REPLY TO INTERVENOR JOSEPH SCARNATI, ANSWER AND

PROTEST TO INTERVENOR EMPOWER ERIE’S APPLICATION TO SUPPLEMENT
HEARING EXHIBITS AND MOTION TO STRIKE PROPOSED SUPPLEMENT

Erie County, by and through its undersigned counsel, hereby files this Reply to

Intervenor Joseph Scamati, Ill’s (hereinafter “Scarnati”) Answer and Protest to Intervenor

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

Supplement (hereinafter “Reply”) and, in support, avers as follows.

1. Admitted.

2. Admitted.

3. Admitted.

4. Denied as stated. The regulations cited speak for themselves.

5. Admitted.

6. Admitted.

7. Admitted.

8. Admitted.
 9. Denied as stated. It is admitted that Erie County timely submitted its expert

reports as required by this Board in it’s the January 27, 2020 Order issued by the Ad Hoc

Committee. It is denied that Intervenors NPRC and Scamati timely submitted an expert report.

10. Admitted.

11. Admitted.

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

Supplement Hearing Exhibits on or about the date stated. That filing speaks for itself as to its

contents.

13. Admitted, upon information and belief.

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

the result of a study commissioned by the ERCGP pursuant to its own mission, and under James

Grunke’s direction, independent of this hearing and/or the Erie County Community College

application, which study was concluded with the issuance of the Report on or about May 4,

2020. It is further admitted, upon information and belief, that two representatives of NPRC

(Aldo Jackson, and Mary Bula) were members of a steering committee formed for purposes of

the study, and had some level of participation in the study, including the review of the draft

report. It is finally admitted, upon information and belief, that NPRC was aware of the study,

and the Report, as a result of the participation of its two representatives on the steering

committee.

15. Denied. This Board should not preclude Empower Erie or the County from

introducing the Report during the hearing in this matter. The Report was not prepared for

purposes of this hearing, and consequently is not in the nature of an expert report. Moreover, the

Report was only issued in final form on or about May 4, 2020, and consequently, was not

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available at the time of the submission of the Pre-Trial Statements in February, or the submission

of exhibits in March. Finally, neither Erie County nor Empower Erie were even aware of the

existence of the Report until after the time period for the submission of Pre-Trial Statements and

hearing exhibits.

16. Denied as stated. It is admitted that Erie County concurred in the filing of

Empower Erie’s Application. It is denied that the applicable rules of procedure required

Empower Erie to seek the concurrence of any party prior to its filing.

17. Admitted. In further answer, the Report was not referenced in Empower Erie’s

February 19, 2020 Application to Amend its Pre-Hearing Statement because the Report did not

exist at that time.

18. Denied. The Report is not an expert report prepared by a party for purposes of a

hearing, and consequently the cited regulations do not apply. To the contrary, the Report is the

written culmination of a study commissioned by the ERGCP, wholly independent of this

proceeding, the results of which bear directly upon the issues before this Board - whether there

is an unmet higher educational need in Erie County, offered from the perspective of the business,

industrial and manufacturing sectors.

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

for the very same reason that the Report was not identified as an exhibit - the report was not yet

prepared, and Empower Erie and the County were not even aware of the commissioning of the

study at the time the Pre-Hearing Statement was filed. Empower Erie has already indicated that

the Report’s author will be made available during the hearing, should this Board believe it

necessary and appropriate. James Grunke, as the CEO of the entity that commissioned the

Report, can certainly speak to the study that was commissioned, and what the results of that

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study were, in his capacity as a fact witness. This Board should not ignore relevant data bearing

on the issues before this Board merely because it only recently became available.

20. Denied. The Report is not an expert report, for the reasons already stated herein,

and consequently, no supplementation is required.

21. Denied as stated. Erie County incorporates by reference its answer to paragraph

21 in further response.

22. Denied. There is no irony at play here. Intervenor Scamati failed to timely

submit his expert report (which was or should have been available to him) as directed by the

Order of the Ad Hoc Committee, and then attempted to circumvent that deadline by filing his

expert’s report as written testimony. In contrast, Empower Erie timely submitted its application

to identify after discovered evidence, once that evidence came into existence, and became known

to it.

23. This paragraph does not contain any averment of fact, and therefore no response

is required. In further answer, Empower Erie has sought to identify as an exhibit for purposes of

the hearing newly discovered evidence that only become available after the deadlines imposed

by this Board, and a potential authentication witness to the extent deemed necessary by this

Board - nothing more and nothing less.

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 Order

addressed after discovered evidence. There is nothing under the applicable rules of procedure,

or set forth in any Order issued by this Board, that blanketly prohibits a party from offering

newly discovered evidence at the time of hearing, or this Board from accepting such evidence.

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

truth of the averments of this paragraph, and therefor denies same. In further answer, Intervenors

Scarnati and NPRC have acted in concert throughout these proceedings, and consequently, Erie

County presumes that NPRC is sharing information it has with Intervenor Scarnati. Erie County

notes that in his response, Intervenor Scarnati does not affirmatively state whether he knew of

the existence of the study or the Report prior to the filing of Empower Erie’s Application.

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

which is a document that speaks for itself. Any characterization of those assertions by

Intervenor Scarnati are specifically denied. After reasonable investigation, Erie County is

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

contents of the Report and the basis for same. NPRC is free to testify as to any objections it had,

and the basis for same, during the hearing. Erie County has no objection to NPRC amending its

witness list to include one or more fact witnesses to address its involvement on the steering

committee, and any input it may have had vis-a-vis the Report.

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. In further answer, the Report further

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

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

of economic prosperity;” and that “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 denied that “there was virtually no data to

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support such recommendation” as alleged. It is denied that there is anything suspect about the

Report or its findings.

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

as submitted differed significantly than the original draft report, based upon the feedback

received from the steering committee members, and further review by Garner Economics.

Upon information and belief, the recommendation in the Report for the establishment of a bricks

and mortar community college in Erie County did not change, and appeared in both the draft

version, and the final version of the Report.

29. Denied. Erie County is without information sufficient to determine what the

NPRC participants’ positions were vis-a-vis the Report at the time they reviewed the draft of

same, and therefore denies the averment.

30. Denied as stated. The Report speaks for itself- and what it states is that a bricks

and mortar community college is needed in Erie County. If the conclusions of the study were

that NPRC was adequately serving that need, the Report would have stated so. It did not.

31. Denied as stated. Erie County is without information sufficient to determine the

factual averments of this paragraph, and therefore must deny same. In further answer, Empower

Erie had no obligation to raise the existence of the Report until it was finalized, Empower Erie

obtained a copy of the Report, and had a reasonable opportunity to review and determine

whether it was relevant to these proceedings. Empower Erie acted timely in filing its

Application to 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

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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, as the Report did not exist at that time. It is likewise

denied that Empower Erie was required to reserve the right to submit after discovered evidence

in any pre-hearing submission. This Board has the discretion to consider newly discovered

evidence at the time of hearing under applicable rules of procedure.

WHEREFORE, Erie County requests that this Board deny Intervenor Joseph Scamati’s

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

Strike Proposed Supplement.

Dated: ZO
James JvKutz, Esquire
Pa. Supreme Court I.D. No.
Michael W. Winfield, Esquir
Pa. Supreme Court I.D. No. 72680
POST & SCHELL, P.C.
17 North Second Street, 12th Floor
Harrisburg, PA 17101
JKutz@postschell.com
MWinfield@postschell.com
Telephone: (717) 731-1970
Facsimile: (717)731-1985

Attorneys for County ofErie

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 CERTIFICATE OF SERVICE

I hereby certify that I have this date caused a true and correct copy of the foregoing

document to be served upon the following as indicated below:

Via Email & First Class U.S. Mail, Postage Prepaid:

Adam L. Santucci, Esquire David C. Hittinger, Jr., Esquire

McNees, Wallace & Nurick, LLC
100 Pine Street, P. O. Box 1166
Harrisburg, PA 17108
asantucci@mcneeslaw.com
Attorneys for Intervenor
Senator Joseph Scarnati, III
Mark Stewart, Esquire
Eckert Seamans Cherin & Mellott, LLC
213 Market Street, 8th Floor
Harrisburg, PA 17101
nhittinger@eckerseamans.com
Attorney for Intervenor Empower Erie

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

Governor’s Office of General Counsel Tucker Arensberg, P.C.
Commonwealth of Pennsylvania 2 Lemoyne Drive, Suite 200
333 Market Street, 17th Floor Lemoyne, PA 17043
Harrisburg, PA 17101 khall@tuckerlaw.com
thowell@pa.gov Attorngyfor Intervenor
Counsel to State Board of Education Northern Pennsylvania Regional College

Dated: June p , 2020

Ijhael W. Winfield ire
Pa. Supreme Court I. .72680
POST & SCHELL, P.C)
17 North Second Street, 12th Floor
Harrisburg, PA 17101
Telephone: (717) 612-6024
Facsimile: (717) 720-5393
MWinfield@PostSchell.com
Attorneys for County of Erie