              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ming Wei,                                 :
                   Petitioner             :
                                          :   No. 263 C.D. 2015
             v.                           :
                                          :   Submitted: August 7, 2015
State Civil Service Commission            :
(Department of Health),                   :
                    Respondent            :



BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                  FILED: September 18, 2015

             Ming Wei (Petitioner) petitions for review of the January 21, 2015 order
of the Pennsylvania State Civil Service Commission (Commission) denying
Petitioner’s motion to reopen his case and determining that none of Petitioner’s
alleged newly discovered evidence was either concealed by fraud or otherwise
unavailable to be discovered at the time of Petitioner’s original administrative hearing
before a commissioner on December 3, 2007.


                         Background and Procedural History
             Petitioner worked as an epidemiologist and was the data manager for the
Pennsylvania Department of Health’s (Department) human immunodeficiency virus,
acquired immune deficiency syndrome (HIV/AIDS) epidemiology team. (Doc. A3,
Ex. 1; Doc. A3, Ex. 6.) Petitioner was responsible for transferring data to different
formats. (Doc. B1, Ex. 6.) On May 16, 2007, Petitioner was given a direct order to
complete the 2005 backlog data assignment within six weeks. (Doc. A3, Ex 2.) By
letter dated September 4, 2007, Petitioner was discharged from employment,
effective September 7, 2007, for insubordination and unsatisfactory work
performance.1 (Doc. A3, Ex. 1.) The termination letter specifically stated that
Petitioner failed to complete “the 2005 backlog data work assignment as directed by
July 31, 2007.” (Doc. A3, Ex. 1.)
              Petitioner appealed his discharge to the Commission which, following a
hearing, dismissed the appeal by adjudication and order dated March 7, 2008.
Specifically, the Commission stated as follows:

              The [C]omission finds that the appointing authority’s
              evidence established that by failing to complete the HARS
              HIV/AIDS data conversion assignment, appellant exhibited
              unsatisfactory work performance and insubordination.
              [Employer’s witnesses] credibly testified that this
              assignment was appellant’s responsibility, and his alone.
              [Employer’s witness’] credible testimony, and the evidence
              offered by the April 9, 2007 e-mails, shows that appellant
              was insubordinate in refusing for six months to accept this
              responsibility and complete the assignment. We are not
              persuaded by appellant’s arguments that his failure to
              complete his assignment was not his fault, but rather, the
              fault of the appointing authority. [Employer’s witness]
              offered ample, credible, evidence that she helped appellant
              with the assignment by transferring some of his job duties

       1
          Petitioner had previously received written reprimands on April 4, 2007, for failing to
attend a pre-scheduled team meeting without notifying his supervisor; May 23, 2007, for failing to
complete his work on time; and July 2, 2007, for sending an inappropriate e-mail to his supervisor
alleging an abusive work environment that caused him to have health problems. (Doc. A3, Ex. 3-5.)
Petitioner had previously been suspended from July 23-27, 2007, for failure to complete the 2005
backlog data task, inappropriate behavior, and insubordination. (Doc. A3, Ex. 2.)



                                                2
            to other staff members as he requested, thereby lightening
            his workload. We also accept as credible [Employer’s
            witness’] testimony that she did not stop appellant from
            training other people to help him with his duties, nor did
            she deny appellant any training he may have needed to
            complete the assignment.        The Commission is not
            persuaded by appellant’s argument that he needed more
            time and more help to complete the assignment, especially
            in view of the fact that he did not show any significant
            progress on it for six months, and we accept [Employer’s
            witness’] testimony that he did not show her the 424,498
            records that he claimed he converted. The picture that
            emerges from the testimony is one of consistent
            insubordination and unsatisfactory work performance in
            that despite the appointing authority’s help, and a written
            reprimand and a suspension, appellant neither completed
            nor made any substantial progress toward completing the
            assignment by the July 31, 2007 deadline.

            Appellant’s insubordination and unsatisfactory work
            performance provided just cause for his removal because it
            had a direct impact on his job performance, and directly
            involves his competence and ability as an Epidemiologist.
(Commission’s adjudication and order at 24-25) (citation omitted).
            In Wei v. State Civil Service Commission (Department of Health), 961
A.2d 254 (Pa. Cmwlth. 2008) (Wei I), this Court affirmed the Commission’s
dismissal of Petitioner’s appeal challenging his termination. Specifically, we held
that the Commission did not err in: determining that Petitioner was not entitled to an
interpreter at the Commission’s hearing pursuant to 28 U.S.C. §1827; limiting the
testimony to only questions and responses concerning the data conversion process to
be used by Petitioner during the time period that he was assigned his tasks that he did
not successfully complete; crediting the testimony of the Department’s witnesses;
determining that Petitioner was given ample time and resources to complete his tasks;
determining that Petitioner’s removal was not discriminatory; and concluding that the



                                          3
Department’s witnesses consistently testified during the Commission’s hearing and
the hearing before the Unemployment Compensation Board of Review.
            On December 17, 2014, Petitioner filed a motion with the Commission
to reopen the case based on alleged newly discovered evidence. By order dated
January 21, 2015, the Commission denied the motion.                   Citing Fritz v.
Commonwealth, Department of Transportation, 468 A.2d 538 (Pa. 1983), the
Commission found that Petitioner’s alleged newly discovered evidence, inter alia,
internal e-mail conversations that both included and did not include Petitioner,
meeting minutes, and Department policies and reports, was neither concealed by
fraud nor otherwise unavailable to be discovered by Petitioner at the time of his
original administrative hearing. Accordingly, the Commission determined that the
alleged newly discovered evidence did not meet the standard necessary to grant
Petitioner’s motion to reopen the case. On February 10, 2015, Petitioner filed an
application for reconsideration, which the Commission denied by letter dated March
12, 2015.


                                     Discussion
            On appeal to this Court, Petitioner argues that the Commission erred in
determining that his newly discovered evidence did not satisfy the standard required
for reopening the case. Petitioner also asserts that the Commission denied him
procedural rights guaranteed by the Administrative Agency Law during his original
administrative hearing.
            Initially, we note that “[a] decision to . . . reopen a record is within the
discretion of an administrative agency, and the exercise of that discretion by the
agency will not be reversed unless a clear abuse is shown.” Fritz, 468 A.2d at 539.



                                          4
A petition to reopen is properly denied if there are no material changes of fact or law
or new evidence that was not discoverable prior to the conclusion of the hearing.
Shoemaker v. State Employes’ Retirement Board, 688 A.2d 751, 753 (Pa. Cmwlth.
1997).
               The General Rules of Administrative Practice and Procedure (GRAPP)
provide for a petition to reopen a case as follows:

               After the conclusion of a hearing in a proceeding or
               adjournment thereof sine die, a participant in the
               proceeding may file with the presiding officer, if before
               issuance by the presiding officer of a proposed report,
               otherwise with the agency head, a petition to reopen the
               proceeding for the purpose of taking additional evidence.
               The petition shall set forth clearly the facts claimed to
               constitute grounds requiring reopening of the proceeding,
               including material changes of fact or of law alleged to have
               occurred since the conclusion of the hearing.
1 Pa. Code §35.231(a). However, GRAPP does not provide for the reopening of a
case after the adjudication has been issued. See Commonwealth, Department of
Justice v. Commonwealth, State Civil Service Commission, 319 A.2d 692, 693-94
(Pa. Cmwlth. 1974) (holding that, in accordance with the Civil Service Act2 and
GRAPP, a case may be reopened prior to the issuance of an adjudication only where
there is additional evidence to be presented).
               We further note that, in this matter, an adjudication had been issued in
2007, upheld upon reconsideration, and affirmed in this Court. Wei I. Pursuant to 1
Pa. Code §35.231, a case may only be reopened for the purpose of taking additional
evidence when there have been material changes of fact or law that have occurred
since the conclusion of the hearing.             Pursuant to 1 Pa. Code §35.241, “[a]n

      2
          Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§741.1-741.1005.



                                                5
application for rehearing or reconsideration may be filed by a party to a proceeding
within 15 days . . . after the issuance of an adjudication or other final order by the
agency.”
             Here, Wei is requesting that the record be reopened for the introduction
of alleged newly discovered evidence well past the time for Wei to make such a
request. An adjudication has already been issued in this case, and, as stated earlier,
GRAPP, the Civil Service Act, and the Commission’s rules do not provide for the
reopening of a case once the decision has been rendered. 1 Pa. Code §35.231(a);
Department of Justice.
             As noted above, both our Supreme Court and this Court have addressed
the reopening of a case/record. In Fritz, the petitioners attempted to secure a permit
for a sign to advertise their business.          The Pennsylvania Department of
Transportation (DOT) scheduled a hearing but the petitioners withdrew their request
to have a hearing on the matter. The presiding officer issued a proposed report
denying the application and ordering the petitioners to remove the sign.
Subsequently, the petitioners filed exceptions to the proposed report, an application
for rehearing or reconsideration, and a petition to reopen. DOT’s Secretary dismissed
the exceptions and denied the application and petition.
             On appeal to this Court, we noted that an agency has discretion to grant a
rehearing or to reopen a case and that the decision should not be reversed absent an
abuse of discretion. We further noted that a petition for rehearing is properly denied
when a party fails to demonstrate a change in circumstances or newly discovered
evidence. We stated that the petitioners could not be heard on issues relating to their
sign when they failed to attend the hearing and notified DOT of their intention to
abandon the matter. We found that DOT did not abuse its discretion in denying the



                                          6
petitioners’ request for a rehearing and to reopen the case, because the petitioners
asserted “no change of circumstance or new evidence which could not have been
presented at the hearing or which was not known or available at that time.” 468 A.2d
at 539.
             In Shoemaker, the petitioner requested that the State Employes’
Retirement System (SERS) eliminate the frozen present value of her deceased
husband’s initial retirement account.     SERS denied the petitioner’s request.      A
hearing examiner subsequently held a hearing and also recommended denial of the
request. The petitioner appealed to the State Employes’ Retirement Board (Board).
The petitioner also filed a motion to reopen the record in order to introduce evidence
that other employees who were counseled by a different SERS employee, other than
the one who counseled the petitioner’s husband, were subsequently allowed to
eliminate the frozen present value on their accounts; the retirement counselor’s
testimony; and testimony of SERS employees with knowledge of the situation. The
Board denied her motion and her request to eliminate the frozen present value on the
retirement account.
             On appeal to this Court, we noted, in relevant part, that a motion to
reopen must clearly set forth the facts constituting grounds for reopening, including
any alleged material changes of fact or law since the hearing’s conclusion. We
further noted that any “material changes of fact must not have been discoverable prior
to the conclusion of the hearing.” Id. at 753.    Because all of the evidence that the
petitioner sought to introduce was known and available to the petitioner at the time of
the hearing and no material changes of fact or law had been alleged, we determined
that the Board did not abuse its discretion in denying the motion.




                                           7
             As distinguished from Fritz and Shoemaker, here, Petitioner filed his
motion to reopen after an adjudication had been issued. Wei I. Accordingly, the
Commission did not abuse its discretion in denying Petitioner’s motion to reopen the
case.
             Moreover, Petitioner asserts that he could present newly discovered
evidence, such as internal correspondence, meeting minutes, and Department policies
and reports, that was not available to him at the time of his original administrative
hearing on December 3, 2007, because he did not discover these documents until his
subsequently-filed federal district court case involving the same matter. However, all
of these e-mail conversations and Department policies would have been available to
Petitioner at the time of his original administrative hearing, as the majority of the
documents alleged to be newly discovered evidence have creation dates prior to his
administrative hearing and he was previously aware of at least one meeting on March
19, 2007, as evidenced by an e-mail conversation with his supervisor. (Doc. A3, Ex.
7, 9; Doc. B1, Ex. 6, 8a-8d, 10b-10d, 23b; Doc. B2, Ex. 7, 11a-11b.) There is no
language in any of the alleged newly discovered evidence, i.e., a Department chart
discussing employment needs, a 2005-06 program revision request proposal
requesting an increase in staff to assist in processing HIV/AIDS disease reports, a
Department document stating how many HIV/AIDS reports were received per month,
minutes from a December 12, 2005 staff meeting, e-mail correspondence discussing
the draft format for the conversion assignment, or an e-mail sent by Petitioner to his
supervisor on July 2, 2007 updating his progress on his reports completed for his
assignment, that demonstrates that Petitioner completed his assigned task. (Doc. B1,
Ex. 1a-c, 3d, 7a-7b, 8c.)




                                          8
             Petitioner further argues that the Department fraudulently concealed
these documents from him, they were not discovered until after the date of his
original administrative hearing, and that some of the documents were not available to
him until the Department returned his belongings in June 2009.            However, as
previously noted, Petitioner was aware of the Department’s meetings and was a party
to the majority of the e-mail correspondence. Thus, Petitioner has not presented any
evidence, besides his bald assertions, that the Department fraudulently concealed any
documents from him prior to his original administrative hearing or that these records
were unavailable to him before his administrative hearing commenced. Shoemaker;
Fritz.
             Petitioner also seeks to introduce testimony from his original
administrative hearing and from another case recently decided by this Court in Wei v.
Commonwealth of Pennsylvania, (Pa. Cmwlth. No. 1500 C.D. 2014, filed June 18,
2015) (affirming the court of common pleas’ order that dismissed Petitioner’s
complaint regarding his termination for lack of jurisdiction), involving these same
matters for the purpose of demonstrating that Petitioner’s supervisor falsely testified
that she checked on his progress concerning the 2005 backlog data on July 2, 2007,
that Petitioner’s supervisor was not familiar with the process of converting the data,
and that Petitioner sent a timely e-mail to Employer showing that he made substantial
progress on the project. (Doc. B1, Ex. 15; Doc. B2, Ex. 4, 6.) However, in this
regard, Petitioner merely seeks to relitigate the issues decided by this Court in Wei I,
and the appropriate remedy for such was to file a petition for rehearing within fifteen
days after the issuance of an adjudication, which occurred in 2007 in this case. 1 Pa.
Code §35.241. Thus, we conclude that the Commission did not abuse its discretion in




                                           9
determining that Petitioner’s alleged newly discovered evidence was not fraudulently
concealed or otherwise unavailable at the time of his original administrative hearing.
             Petitioner also asserts that the Department denied his requests for an
interpreter and a continuation of the original administrative hearing as guaranteed by
the Administrative Agency Law. These are the same issues previously decided by
this Court in Wei I, and Petitioner has failed to demonstrate how the circumstances
have changed since his original administrative hearing or that the evidence he now
seeks to present was not known or available to him at the time of the hearing.
Shoemaker. Therefore, we conclude that the Commission also did not abuse its
discretion in denying Petitioner’s application to reopen the case on this basis.
             Accordingly, we affirm.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ming Wei,                               :
                  Petitioner            :
                                        :    No. 263 C.D. 2015
            v.                          :
                                        :
State Civil Service Commission          :
(Department of Health),                 :
                    Respondent          :


                                    ORDER


            AND NOW, this 18th day of September, 2015, the January 21, 2015
order of the Pennsylvania State Civil Service Commission is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
