‘COMMONWEALTH OF PENNSYLVANIA STATE BOARD OF EDUCATION IN RE MARCH 48, 2020, PUBLIC HEARING : Docket Neen ON THE ERIE COUNTY COMMUNITY CEIVED COLLEGE - JAN 03 2020 PA. STATE vow OF EDUCATION” ANSWER OF SENATOR JOSEPH SCARNATI, Ill TO PETITION TO INTERVENE OF EMPOWER ERIE, LLC Senator Joseph Scarnati, III, President Pro Tempore of the Pennsylvania State Senate ("Senator Scarnati") by and through his undersigned counsel, McNees Wallace & Nurick LLG, files the following Answer to Petition to Intervene of Empower Erie, LLC, in accordance with the Commonwealth of Pennsylvania, State Board of Education's Scheduling Order issued in the above referenced matter, and avers as follows: 1. Admitted. By way of further answer, on June 27, 2017, the County of Erie, Pennsylvania ("Erie County”) county council voted 4-2, with one abstention, for Erie County to act as a local sponsor for the proposed Erie County Community College (‘Community College”). On June 30, 2017, the Erie County Executive filed an application for the approval of the Community College (‘Application’) to the Pennsylvania Board of Education (Board!) 2. Admitted. 3. Admitted. By way of further Answer, Senator Joseph Scarnati, Ill is a member of the Pennsylvania State Senate and is the President Pro Tempore of thatbody (‘Senator Scarnati’). On December 19, 2019, Senator Scarnati filed a Petition to Intervene in accordance with the Board's November 22, 2019 Notice. Answering further, upon information and belief, Employer Erie, LLC ("Empower Erie") submitted a Petition to Intervene on or about December 19, 2019. Upon information and belief, on or about December 26, 2019, the Board issued a Scheduling Order and served the Petitions to Intervene that the Board had received on the various petitioners 4. Admitted, upon information and belief 5. Paragraph 5 is a conclusion of law to which no responsive pleading is necessary, Answering further, Paragraph 6 contains an incomplete recitation of 1 Pa Code 35.28(a), which speaks for itself. Therefore, the averments of Paragraph 5 are denied, 6. Denied. There is no statutory right of intervention in this matter. See Pitts, Palisades Park, LLC v. Pa, State Horse Racing Comm'n, 844 A.2d 62, 66 (Pa. Commw. Ct. 2004), Further, 1 Pa. Code 35.28(a) sets forth categories of persons who are eligible to intervene in an administrative agency proceeding, but under 1 Pa. Code 35.28(a)(2) and (3) intervention is a matter of discretion. See Shawnee Tabernacle Church v. Pa. State Ethics Comm'n, 76 A.3d 117, 126 (Pa. Commw. Ct 2013). Answering further, Paragraph 6 contains an incomplete recitation of 1 Pa. Code 35.28(a), which speaks for itself 7. Denied, Paragraph 7 is a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is necessary, the averments of Paragraph 7 are denied. 28 Denied. Petitioner Empower Erie is not eligible to intervene under either 1 Pa. Code §§ 35.28(a)(2) or (3), 1 Pa. Code § 35.28(a) provides criteria for a third party's eligibility to intervene in an administrative agency proceeding, but as noted above, it does not require an agency to grant intervention. Shawnee Tabernacle Church, 76 at 126. A petitioner seeking to intervene pursuant to 1 Pa. Code § 35.28(a)(2) is only eligible to intervene when: (1) the petitioner has an interest which may be directly affected, (2) which is not adequately represented by existing patties, (3) and the petitioner may be bound by the action of the agency in the proceeding. Id. at 127. Empower Erie does not have an interest that may be directly affected in this, matter. Empower Erie is not a consumer, customer, patron, employee, security holder or competitor of Erie County or the applied for Community College. See Pitts. Palisades Park, 844 A.2d at 66. Further, Empower Erie will not be bound by the Board's decision in this matter. /d. Empower Erie did not file the Application and none of its legal rights are at stake in the Board's proceedings in this matter. Finally, Empower Erie's interests, if any, in seeking approval of the Application will be adequately represented by Erie County. Therefore, Empower Erie is not eligible to intervene pursuant to 1 Pa, Code § 35.28(a)(2). A petitioner seeking to intervene pursuant to 1 Pa. Code § 35.28(a)(3) is only eligible to intervene when the petitioner's interest is of such a nature that participation is in the public interest. Empower Erie does not have an interest that is not adequately represented by existing patties, notably Erie County. Empower Erie's interest is not of such a nature that participation would advance the public interest. Empower Erie's participation would in fact, impairthe public interest, because it would be duplicative and unnecessary. For all of the reasons set forth above, Empower Eire is not eligible to intervene pursuant to 1 Pa. Code §§ 35.28(a)(2) o (3) 9. _ Senator Scamati is without sufficient information to verify the truth or veracity of the averments of Paragraph 9, and therefore, the averments of Paragraph 9 are denied. 10. Senator Scarnati is without sufficient information to verify the truth or veracity of the averments of Paragraph 10, and therefore, the averments of Paragraph 10 are denied. 14. Senator Scarnati is without sufficient information to verify the truth or veracity of the averments of Paragraph ‘1, and therefore, the averments of Paragraph 14 are denied. 12. Denied. By way of further answer, Erie County is the appropriate party to support and defend the Application. The Board possesses expertise on the rules. and regulations governing the establishment of community colleges in the Commonwealth of Pennsylvania. It is specifically denied that Petitioner Empower Erie possesses any unique or singular insight regarding the Application. Furthermore, unique insight regarding an issue is not a basis for intervention 13, Senator Scanati is without sufficient information to verify the truth or veracity of the averments of Paragraph 13, and therefore, the averments of Paragraph 13 are denied, | | |14, Senator Scarnati is without sufficient information to verify the truth or veracity of the averments of Paragraph 14, and therefore, the averments of Paragraph 14 are denied. 15. Denied. Empower Erie has no interest in the Board's decision in this matter, because its rights will not be implicated in any decision. See Pitts. Palisades Park, 844 A.2d at 68, Further, it is not a competitor, consumer, customer, patron, employee or security holder of Erie County. Id. Finally, any alleged interest that Empower Erie may assert with respect to the Petition will be represented by the Erie County, 16. Denied. Empower Erie's participation would not further the public interest, because Empower Erie's participation is duplicative and unnecessary. Empower Erie's interest, if any, will be represented by Erie County. Further answer, Erie County is the appropriate party to support and defend the Application. The Board possesses the expertise on the rules and regulations governing the establishment of community collages in the Commonwealth of Pennsylvania. It is specifically denied that Empower Erie possesses any unique or singular insight regarding the Application. Finally, “unique or singular insight" is not a basis for intervention. 17. Denied. Itis specifically denied that Empower Erie possesses any unique or singular knowledge regarding the Application or the factors to be considered by the Board in evaluating the Application. Erie County is already a party to this matter and in the best position to address issues raised in the Application &‘Answering further, Empower Erie has no interest whatsoever that renders it eligible to intervene in this matter, 18. Denied. 19. Senator Scarnati is without sufficient information to verify the truth or veracity of the averments of Paragraph 19, and therefore, the averments of Paragraph 19 are denied. It is specifically denied that Empower Erie possesses any unique or singular knowledge regarding the Application or the factors to be considered by the Board in evaluating the Application. Erie County is already a party to this matter and in the best position to address issues raised in the Application. Answering further, Empower Erie has no interest whatsoever that renders it eligible to intervene in this matter. 20. Denied. 21. Denied. Empower Erie has no interest that may be affected by the Board's decision in this matter. Whether Empower Erie elects to dissolve and terminate its operations is a decision solely within the power of the members of Empower Erie and not the Board, Erie County is already a party to this matter and in the best position to advance and defend the Application. 22. Denied. It is specifically denied that Empower Erie possesses any unique or singular knowledge regarding the Application or the factors to be considered by the Board in evaluating the Application. Erie County is already a party to this matter and in the best position to address issues raised in the Application. 6‘Answering further, Empower Erie has no interest whatsoever that renders it eligible to intervene in this matter. 23. Denied. It is specifically denied that Empower Erie possesses any unique or singular knowledge regarding the Application or the factors to be considered by the Board in evaluating the Application. Erie County is already a party to this matter and in the best position to address issues raised in the Application. Answering further, Empower Erie has no interest whatsoever that renders it eligible to intervene in this matter. WHEREFORE, Senator Scamati respectfully requests that the Board deny the Petition to Intervene of Empower Erie, LLC in the Matter of the March 18, 2020 Public Hearing on the Erie County Community College Plan. Respectfully arb McNees Waliacd/urck Lc ‘Adam © Santucci PA ID No. 307058 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 717.237.5388 asantucci@moneestaw.com Attomeys for intervenor Senator Joseph Scarnati, Ill, President Pro Tempore of the Pennsylvania State Senate Date: January 3, 2020VERIFICATION, |, J. Andrew Crompton, hereby state that | am the Chief of Staff and Counsel to Senator Joseph Scarnati and that | am authorized to make this verification on his hehallf. I hereby state that the facts set forth in the foregoing Answer to Petition to Intervene of, Empower Erie, LLC are true and correct to the best of my knowledge, information and belief. | understand that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsification to authorities), SENATOR JOSEPH SCARNATI, Ill Dated: January 3, 2020CERTIFICATE OF SERVICE 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. Post & Schell, P.C. Counsel for Erie County 17 North Second Street 12!" 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, 8" Floor Harrisburg, PA 17101 Kate Brook Chairperson, Board of Trustees Petitioner Northern Pennsylvania Regional College 300 Second Avenue Suite 500 Warren, PA 16365 Adam G. Kiein, Esq. Michael R. Kelley, Esq. Randall Pajovich, Esq Smigel, Anderson & Sacks, LLP Counsel for Petitioner Brent Davis 4431 North Front Street Harrisburg, PA 17110-1709 :Professor Charles A. Bennett Petitioner Via email at: Bennett001@gannon.edu PA ID No. 307058 | 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17408 717.237.5388 asantueci@meneeslaw.com Attorneys for intervenor Senator Joseph Scarnati, Ill, President Pro Tempore of the Pennsylvania State Senate Date: January 3, 2020 -10-