100 Pine Street ● PO Box 1166 ● Harrisburg, PA 17108-1166 Adam L.

Santucci
Tel: 717.232.8000 ● Fax: 717.237.5300 Direct Dial: 717.237.5388
Direct Fax: 717.260.1655
asantucci@mcneeslaw.com

May 28, 2020

VIA E-MAIL AND FIRST-CLASS MAIL

State Board of Education

C/O Stephanie Jones stephajone@pa.gov
Docket Clerk
333 Market St., 1st Fl.
Harrisburg, PA 17126

RE: In Re Application of Erie County Seeking to Establish a Community College

Docket No. 2019-001

Dear Ms. Jones:

Enclosed please find Intervenor Joseph Scarnati’s Answer and Protest to Intervenor Empower Erie’s
Application to Supplement Hearing Exhibits and Motion to Strike Proposed Supplement.

If you have you have any questions, please feel free to contact this office.

Sincerely,

McNEES WALLACE & NURICK LLC

By
Adam L. Santucci
 COMMONWEALTH OF PENNSYLVANIA
STATE BOARD OF EDUCATION

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

INTERVENOR JOSEPH SCARNATI’S ANSWER AND PROTEST TO

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

Intervenor Joseph Scarnati, III (“Senator Scarnati”) by and through his attorneys

McNees Wallace & Nurick, hereby files this Answer and Protest to Intervenor Empower

Erie, LLC’s Application to Supplement its Hearing Exhibits and Motion to Strike the

Proposed Supplement, and in support thereof, states as follows:

1. On January 27, 2020, the Pennsylvania State Board of Education’s Ad

Hoc Committee on the Erie County College Plan Hearing (“Ad Hoc Committee”) issued

an Order setting a hearing date for March 18, 2020 for the parties and intervenors to

submit evidence regarding Erie County’s Application.

2. The Order required that each party file a Pre-Hearing Statement to

include: the names of all witnesses and expressly identify proposed experts, the

curricula vitae of the proposed experts, and a list of exhibits.

3. The Order also required that all documentary evidence be submitted by

March 6, 2020.

4. Pursuant to 22 Pa. Code § 1.5 and 1 Pa. Code § 35.166(a), expert reports

must be submitted no less than twenty (20) days prior to the date of the hearing. Such
report must be authenticated by the expert at the hearing, and the expert must be

subject to cross-examination.

5. All parties and intervenors filed Pre-Hearing Statements by February 7,

2020.

6. As part of Empower Erie’s Pre-Hearing Statement it identified the following

as a witness: “Representative of the Erie manufacturing sector to be named (fact

witness).”

7. On February 19, 2020, Empower Erie filed an Application to Amend its

Pre-Hearing Statement and identified James Grunke as the fact witness that is a

representative of the Erie manufacturing sector. According to Empower Erie’s

Application to Amend, Grunke is the President and CEO of the Erie Regional Chamber

and Growth Partnership (“ERCGP”).

8. All parties submitted documentary exhibits by March 6, 2020.

9. All parties submitted expert reports within 20 days of the March 18, 2020

hearing.

10. On March 12, 2020, the Pennsylvania State Board of Education

postponed the hearing scheduled for March 18, 2020 in response to the COVID-19

pandemic.

11. On May 6, 2020, the State Board of Education approved a motion to

reschedule the hearing within two weeks, via virtual online platform.

12. On May 18, 2020, Empower Erie filed an Application to Supplement its

Hearing Exhibits. Empower Erie requests that the Ad Hoc Committee permit it to submit

2
a report entitled “Erie County’s 21st Century Plan to Effectively Grow the Talent Pipeline”

(the “Report”). According to Empower Erie, the Report was commissioned by ERCGP.

13. The research and analysis for the Report was conducted by Garner

Economics, LLC and the Report was written by Debra Lyons, Principal Strategist at

Garner Economics, LLC.

14. Empower Erie attempts to justify its last-minute supplementation of its

exhibits by stating that a final draft of the Report was not completed until May 4, 2020,

that officials associated with Intervenor Northern Pennsylvania Regional College

(“NPRC”) were aware of and active participants in the preparation of the Report, and the

Report was commissioned by ERCGP under Grunke’s direction.

15. The Ad Hoc Committee should deny Empower Erie’s Application to

Supplement its Hearing Exhibits on multiple grounds.

16. Empower Erie, while noting Erie County’s concurrence with its Application

to Supplement did not seek the concurrence of Senator Scarnati or Intervenor the

Northern Pennsylvania Regional College. Senator Scarnati does not concur and

objections to the inclusion of the Report in the record for this matter.

17. The Report was not referenced in Empower Erie’s February 19, 2020

Application to Amend its Pre-Hearing Statement.

18. The Report is a purported expert report. Therefore, pursuant to 1 Pa.

Code § 35.166(a), the Report must be authenticated at the hearing, and the expert who

drafted it must be subject to cross-examination.

19. Empower Erie has no witness in its Pre-Hearing Statement that will allow

for cross-examination of the expert who conducted the research and/or wrote the report.

3
By Empower Erie’s own Pre-Hearing Statement, Grunke is a fact witness, not an expert

witness.

20. Admission of the Report into the record would necessary require Empower

Erie to supplement its witness list, again, to include an expert for authentication and

cross-examination. Accordingly, although Empower Erie has stylized its filing as an

“Application to Supplement its Hearing Exhibits,” it is actually an application to add an

expert witness and supporting expert report.

21. Empower Erie appears to recognize this issue and attempt to hide it in

footnote 2 of its Application, which states, “Erie hereby reserves the right to call as a

hearing witness an employee of Garner Economics to be named later who can testify as

to the process and procedural underpinnings of the Report, if necessary.”

22. The irony should not be lost on the State Board given Empower Erie’s

resistance to the admission of Senator Scarnati’s expert witness report, which was

properly submitted and will be authenticated in accordance with 1 Pa. Code 35.166(a).

23. Empower Erie cannot indefinitely extend the deadline to identify witnesses

and submit exhibits by repeatedly bestowing upon itself the right to supplement its Pre-

Hearing Statement and hearing exhibits through ambiguous reservations of rights.

24. Empower Erie’s late attempt to supplement its exhibits is far beyond the

deadlines set in the Ad Hoc Committee’s January 27, 2020 Order. Such

supplementation of the record denies Senator Scarnati the opportunity to produce

documents and witnesses to rebut the substance of the Report and its findings. Surely,

Empower Erie had clearly demonstrated that it would not concur with any additions to

Senator Scarnati’s exhibit and witness lists for such a purpose.

4
 25. Despite Empower Erie’s attempts to justify the admission of the Report by

asserting that officials associated with NPRC were aware of and actively participated in

the production of the Report, Senator Scarnati and NPRC are not the same party and

do not have access to the same information.

26. Further, Empower Erie’s assertions in this regard are simply false. NPRC

officials were not actively involved in the production of the Report. To the contrary,

officials attended only two meetings and were first provided with a draft of the Report on

April 2, 2020. The NPRC representatives raised objections to the Report, including its

lack of supporting data. Specifically, NRPC objected to the validity of the findings, given

the Report was based on only seventy (70) employer respondents, a response of less

than ten percent (10%). Moreover, they objected to the recommendation of a “brick and

mortar” community college (the entire reason Empower Erie is attempting to have the

Report admitted) because the recommendation was based on only four (4) survey

responses. That is, the recommendation was based on the response of approximately

0.5% of the survey pool.

27. The recommendation for a brick and mortar community college was the

number one recommendation of the Report even though there was virtually no data to

support such recommendation. This is certainly highly suspect under the circumstances.

28. Further, the Report that was released was significantly different than the

draft of the Report provided to the NPRC representatives for review.

29. Clearly, the NPRC participants disputed the methodology used to compile

the Report and its conclusions.

5
 30. Importantly, the data in the Report does support the need for more online

workforce development, certificate and other programs such as those provided by the

NPRC.

31. More importantly, as the Intervenor attempting to supplement its exhibits

and witness lists, Empower Erie must have known the Report was pending and failed to

raise it at any point before May 14, 2020.

32. Empower Erie filed its Application to Amend its Pre-Hearing Statement on

February 19, 2020 to include Grunke as a fact witness. By identifying Grunke as its fact

witness in its Application, Empower Erie must have known that the Report was

contemplated, and completion was imminent.

33. Despite having such knowledge, it neither mentioned the Report nor

reserved any right to add exhibits related to Grunke’s role at ERCGP.

WHEREFORE, Senator Scarnati respectfully requests that the State Board deny

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

Supplement.

Respectfully submitted,

McNEES WALLACE & NURICK LLC

Dated: May 28, 2020 By ___________________________

Adam L. Santucci
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 237-5388
(717) 237-1655 FAX
asantucci@mcneeslaw.com

Attorneys Senator Joseph Scarnati, III

6
 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 May, 2020, upon consideration of Intervenor

Empower Erie, LLC’s Application to Supplement Hearing Exhibits and the

corresponding Protest filed by Intervenor Joseph Scarnati, III, it is Ordered that the

Application to Supplement Hearing Exhibits is DENIED.

By the Board:

__________________________
 VERIFICATION

I, Gregory Mahon, hereby state that I am the Chief of Staff to Senator Joseph

Scarnati, III and that I am authorized to make this verification on his hehaif. I hereby

state that the facts set forth in the foregoing Answer and Protest to Application to

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

Strike Proposed Supplement are true and correct to the best of my knowledge,

information and belief. I understand that the statements herein are made subject to the

penalties of 18 Pa. CS. § 4904 (relating to unsworn falsification to authorities).

SENATOR JOSEPH SCARNATI, Ill

By:____________
Gregory Mhon, Chief of Staff

Dated: May 27, 2020

 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served on
this date by U.S. mail, postage prepaid, upon the following:

James J. Kutz, Esq.

Michael Winfield, Esq.
Post & Schell, P.C.
Counsel for Erie County
17 North Second Street, 12th Floor
Harrisburg, PA 17101

David C. Hittinger, Jr., Esq.

Mark S. Stewart, Esq.
Eckert Seamans Cherin & Mellot, LLC
Counsel for Petitioner Empower Erie, LLC
213 Market Street, 8th Floor
Harrisburg, PA 17101

Kevin Hall, Esq.

Tucker Arensberg
Counsel for Petitioner Northern Pennsylvania Regional College
2 Lemoyne Drive, Suite 200
Lemoyne, PA 17043

Thomas P. Howell, Deputy General Counsel

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

________________________________
Adam L. Santucci
PA ID No. 307058
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108
717.237.5388
asantucci@mcneeslaw.com

Attorneys for Intervenor Senator Joseph Scarnati,

III, President Pro Tempore of the Pennsylvania
State Senate
Date: May 28, 2020