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 Application to Supplement its Hearing Exhibits and Northern

Pennsylvania Regional College (“NPRC”)’s Objection thereto, it is hereby ORDERED that

Empower Erie, LLC’s Application to Supplement its Hearing Exhibit is DENIED.

Empower Erie, LLC is not permitted to submit “Erie County’s 21st Century Plan to

Effectively Grow the Talent Pipeline” (“ERCGP Report”), consistent with the general rules of

administrative practice and procedure.

BY THE BOARD,

________________________________________

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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 :

OBJECTION TO APPLICATION TO SUPPLEMENT HEARING EXHIBITS

OF INTERVENOR EMPOWER ERIE, LLC

AND NOW comes Northern Pennsylvania Regional College (“NPRC”) by and through its

counsel, Tucker Arensberg, P.C., and hereby files the within Objection to Empower Erie, LLC’s

(hereinafter “Empower Erie”) Application to Supplement its Hearing Exhibits and in response

thereto and objection thereof avers as follows:

1. On May 18, 2020, Empower Erie filed an Application to Supplement Hearing

Exhibits requesting that it be permitted to submit a report titled “Erie County’s 21 st Century Plan

to Effectively Grow the Talent Pipeline” (“ERCGP Report”).

2. NPRC hereby objects to the Application of Empower Erie and to the inclusion of

the ERCGP Report in evidence.

3. Any participant in a proceeding has ten days within which to object to an

evidentiary application. Such objection may be in writing. See 1 Pa. Code §§35.178-179.

4. Article XIX-A of the Public School Code sets forth requirements for a college plan

for the establishment of a community college.

5. In particular, no plan for the establishment of a community college shall be

approved unless the State Board of Education determines that the local sponsor: (1) has a

population of sufficient number to assure or sustain minimum enrollment; (2) has sufficient wealth

to financially support such college; and (3) it is not adequately served by established institutions

of higher learning. 24 P.S. §19.1902-A(d).

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 6. Thus, the relevant considerations for the Board for the purpose of determining

whether to grant the Application of Erie County to establish a community college are clearly stated

above.

7. In its Application to Supplement its Hearing Exhibits, Empower Erie seeks to have

included as an exhibit what purports to be a report of the Erie Regional Chamber and Growth

Partnership regarding Erie County’s plan to effectively grow a talent pipeline.

8. As a starting point, the majority of information contained within the report relates

to county workforce development.

9. The inquiry that is required of the State Board of Education, as outlined above, does

not directly involve county workforce development.

10. In addition, this report consisting of 83 pages, provided a mere three weeks prior to

the conduct of the hearing in this matter which is to take place June 10 and June 11, 2020, fails to

provide any data behind the manner in which the report was conducted and the reliability of the

evidence contained therein.

11. For instance, Empower Erie seemingly attempts to use the report as some type of

acknowledgment on the part of NPRC that a “bricks and mortar” community college is required

in Erie County.

12. By its participation in this proceeding alone, it should be evident that nothing could

be further from the truth.

13. Interestingly, Empower Erie indicates that the ERCG report was not finalized until

May 4, 2020, but that the data therein presumably including commentary provided by the

participants was current as of March 15, 2020. See Application to Supplement Hearing Exhibits

at paragraph 11, note 1.

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 14. However, in a version reviewed by Dr. Aldo Jackson in April of 2020, significant

questions were raised regarding the data and analysis presented in the report.

15. In particular, that draft recognized that only four of 70 respondents queried

specifically identified the lack of a public community college as an impediment to workforce

development in Erie County.

16. This acknowledgment is conspicuously absent from the “final report.”

17. The April 2020 draft of the report also failed to include in certain sections other

post-secondary institutions that were not consistent with the prior conclusions and, in particular,

failed to include NPRC as a relevant post-secondary institution.

18. Empower Erie also attempts to have the State Board believe that Ms. Bula was an

“active participant” in the creation of the ERCGP Report.

19. What Empower Erie misleadingly does not reveal is that Ms. Bula, while on the

Steering Committee, had a limited role in which the Steering Committee met only twice and did

not play any part in developing the recommendations contained within the report.

20. Also of note, neither Ms. Bula nor Mr. Jackson were provided with a copy of the

report prior to its submission by Empower Erie in its attempt to use the report in this hearing.

21. In summary, the information contained within the reports suggestion of a “bricks

and mortar” college is both misleading and inaccurate.

22. Exclusion of evidence is proper if the proffered evidence is not legally relevant or

material to a factual issue. See Westinghouse Electric Company v. WCAB, 96 Pa. Cmwlth. 436,

507 A.2d 1287 (Pa. Cmwlth. 1986).

23. Relevance is a threshold consideration in determining the admissibility of evidence.

Majdic v. Cincinnati Machine Company, 370 Pa. Super. 611, 618, 537 A.2d 334 (Pa. Super. 1988).

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 24. A presiding body enjoys broad discretion regarding the admissibility of potentially

misleading and confusing evidence. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa. Super.

14, 22, 473 A.2d 584 (Pa. Super. 1984).

25. As stated above, the report is not directly relevant to the considerations presently

before the State Board of Education.

26. In addition, Empower Erie’s use of the report is purposefully misleading as the

Application attempts to connect individuals associated with NPRC with the unsupported

conclusions contained within the report despite that NPRC nor anyone associated with NPRC had

any role in the preparation of those conclusions.

27. Further, the purpose of the evidentiary rules is to prevent surprise and unfairness

and allow a fair trial on the merits. Linker v. Churnetski Transp., Inc., 520 A.2d 502, 503 (Pa.

Super. 1987).

28. Under the General Rules of Administrative Practice and Procedure, a hearing

examiner is expressly granted the authority to limit the number of witnesses who may testify, and

to control the reception of evidence so as to confine it to the issues in the proceeding. 1 Pa. Code

§§ 35.127 and 35.162.

29. The regulations in this area make the role of the referee in an administrative

proceeding analogous to that of a civil trial judge; the referee rules on the admissibility of all

evidence so as to confine to the issues in the proceeding. 1 Pa. Code § 35.162.

30. The decision whether to sanction a party for the failure to timely provide evidence,

including the preclusion of evidence, are matters vested in the sound discretion of the

referee. Philadelphia Contributionship Insurance Co. v. Shapiro, 798 A.2d 781, 784 (Pa. Super.

2002).

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 31. The untimeliness of Empower Erie’s attempt to include into evidence, what is

essentially an expert report should not be condoned by the Board.

WHEREFORE, Northern Pennsylvania Regional College respectfully requests that the

State Board of Education deny the Application of Empower Erie, LLC to supplement its hearing

exhibits with the ERCGP Report and provide such other relief as the Board may deem just and

proper.

Respectfully submitted,

TUCKER ARENSBERG, P.C.

____________________________
Kevin L. Hall, PA I.D. #311826
2 Lemoyne Drive, Suite 200
Lemoyne, PA 17043
khall@tuckerlaw.com
(717) 234-4121
Attorneys for Intervenor Northern
Pennsylvania Regional College

Dated: May 28, 2020

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 CERTIFICATE OF SERVICE

I, Kevin L. Hall, Esquire, of the law firm of Tucker Arensberg, P.C., hereby certify that I
served a true and correct copy of the foregoing document this date via electronic mail, addressed
as follows:

James J. Kutz, Esquire

Michael W. Winfield, Esquire
Post & Schell, P.C.
17 North Second Street, 12th Floor
Harrisburg, PA 17101
jkutz@postschell.com; mwinfield@postschell.com
Attorneys for County of Erie

Adam L. Santucci, 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
mstewart@eckertseamans.com
Attorneys for Intervenor Empower Erie

Thomas P. Howell, Deputy General Counsel

Governor’s Office of General Counsel
Commonwealth of Pennsylvania
333 Market Street, 17th Floor
Harrisburg, PA 17101
thowell@pa.gov
Attorneys for State Board of Education

TUCKER ARENSBERG, P.C.

______________________________________
Kevin L. Hall, I.D. #311826
2 Lemoyne Drive, Suite 200
Lemoyne, PA 17043
(717) 234-4121
Dated: May 28, 2020 Attorneys for Intervenor Northern
Pennsylvania Regional College

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