M. Wei v. SCSC (Dept. of Health) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ming Wei, :
Petitioner :
: No. 1902 C.D. 2016
v. :
: Submitted: May 5, 2017
State Civil Service Commission :
(Department of Health), :
Respondent :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: September 1, 2017
Ming Wei (Wei) petitions for review of the November 18, 2016 order
of the Pennsylvania State Civil Service Commission (Commission) denying Wei’s
motion to reopen his case and determining that his alleged newly discovered
evidence was available to him when he filed a previous motion to reopen on
December 17, 2014, based upon alleged newly discovered evidence.
Background and Procedural History
This matter is one of three related appeals filed by Wei, pro se, from
orders of the Commission initially dismissing Wei’s appeal challenging his
termination and twice denying his two subsequent motions to reopen the case based
on alleged newly discovered evidence. Wei appealed the Commission’s first two
orders to this Court and each time we affirmed. Wei now seeks review of the
November 18, 2016 order of the Commission denying his second motion to reopen
and determining that none of Wei’s alleged newly discovered evidence was
unavailable to him at the time he filed his first motion to reopen.
This Court’s decisions in those two prior appeals, Wei v. State Civil
Service Commission (Department of Health), 961 A.2d 254 (Pa. Cmwlth. 2008) (Wei
I), and Wei v. State Civil Service Commission (Department of Health) (Pa. Cmwlth.
No. 263 C.D. 2015, filed September 18, 2015) (Wei II), establish the following
history of this dispute.
Wei worked as an epidemiologist and was the data manager for the
Pennsylvania Department of Health’s (Department) human immunodeficiency virus
and acquired immune deficiency syndrome (HIV/AIDS) epidemiology team. Wei
was responsible for transferring data to different formats. On May 16, 2007, Wei
was given a direct order to complete the 2005 backlog data assignment within six
weeks. By letter dated September 4, 2007, Wei was discharged from employment,
effective September 7, 2007, for insubordination and unsatisfactory work
performance.1 The termination letter stated that Wei failed to complete the backlog
data format conversion assignment given to him on July 21, 2007. Wei II, slip op. at
2.
Wei 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:
1
Wei 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. Wei had previously been
suspended from July 23-27, 2007, for failure to complete the 2005 backlog data task, inappropriate
behavior, and insubordination. Wei II, slip op. at 2.
2
The [C]omission finds that the appointing authority’s
evidence established that by failing to complete the HARS2
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
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.
2
The HARS acronym appears refer to “HIV/AIDS Reporting System.” (R.R. at Doc. B, p.
14.)
3
Wei II, slip op. at 2-3 (quoting Commission’s adjudication and order at 24-25).
In Wei I, this Court affirmed the Commission’s denial of Wei’s appeal
challenging his termination. Specifically, we held that the Commission did not err
in: determining that Wei 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 Wei 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 Wei was given ample
time and resources to complete his tasks; determining that Wei’s removal was not
discriminatory; and concluding that the Department’s witnesses offered consistent
testimony during the Commission’s hearing and the hearing before the
Unemployment Compensation Board of Review. Wei I, 961 A.2d at 255-61.
On December 17, 2014,3 Wei filed a motion with the Commission to
reopen the case based on alleged newly discovered evidence. By order dated January
3
Wei filed suit in United States District Court for the Middle District of Pennsylvania on
April 13, 2011, alleging violations of Title VII for retaliation and national origin/racial harassment
and discrimination; the Civil Rights Act of 1964, 42 U.S.C. §§1983, 1985, for defamation and
intentional infliction of emotional distress; the Pennsylvania Human Relations Act (PHRA), Act of
October 27, 1955, P.L. 744, as amended, 43 P.S. §§951 – 963, based on discipline during his
employment and termination; and the United States Constitution for deprivation of property/due
process. On June 6, 2012, the district court dismissed his counts under 42 U.S.C. §1983 for
intentional infliction of emotional distress, discipline, and termination; his PHRA counts; and his
deprivation of property/due process claim. Wei v. Pa. Dep’t of Health, No. 1:11-CV-688, 2012 WL
2049488 (M.D. Pa. June 6, 2012). Although it is unclear from the record, this case appears to be
ongoing.
Wei also filed a complaint against the Department and various Department employees in the
Dauphin County Court of Common Pleas on July 22, 2011, challenging his dismissal. By order
dated August 25, 2014, the common pleas court dismissed Wei’s complaint for lack of jurisdiction
based on Wei’s failure to effectuate proper service of the complaint. Wei appealed to this Court,
and, on June 18, 2015, we affirmed the order of the common pleas court. Wei v. Dep’t of Health,
(Pa. Cmwlth., No. 1500 C.D. 2014, filed June 18, 2015).
4
21, 2015, the Commission denied the motion. Citing Fritz v. Department of
Transportation, 468 A.2d 538 (Pa. 1983), the Commission found that Wei’s alleged
newly discovered evidence, inter alia, internal e-mail conversations that both
included and did not include Wei, meeting minutes, and Department policies and
reports, was neither concealed by fraud nor otherwise unavailable to be discovered
by Wei 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 Wei’s motion to reopen the case. On February 10, 2015,
Wei filed an application for reconsideration, which the Commission denied by letter
dated March 12, 2015. Wei filed a petition for review with this Court as well as a
separate motion for sanctions. Wei II, slip op. at 4.
In Wei II, we affirmed the Commission’s denial of Wei’s application to
reopen the case. In doing so, we reasoned that Wei filed his motion to reopen after
an adjudication had been issued and that the Commission did not abuse its discretion
in determining that his alleged newly discovered evidence was not fraudulently
concealed or otherwise unavailable at the time of his original administrative hearing.
The Court also denied Wei’s motion for sanctions in an order dated September 22,
2015. Wei then filed a motion for reconsideration and a petition for allowance of
appeal,4 both of which were denied.
On September 21, 2016, Wei filed a second motion to reopen the case,
arguing that newly discovered evidence contradicted key testimony of the
4
Wei v. State Civil Service Commission (Department of Health), 134 A.3d 58 (Pa. 2016)
(unpublished table decision).
5
Department which supported the just cause to terminate him. On November 18,
2016, the Commission again dismissed Wei’s appeal, stating:
This is appellant’s second request for the Commission to
Reopen and reconsider its original adjudication of this
2007 appeal based on alleged “newly discovered
evidence.” The Commission has carefully reviewed
appellant’s current motion and finds therein no evidence
that was not also available to appellant when his previous
motion to reopen this appeal based on newly discovered
evidence was filed by him on December 17, 2014. That
motion was denied by the Commission by Order dated
February 6, 2015. . . . In the absence of any additional
evidence which was not already available to appellant for
inclusion in his December 17, 2014 Motion to Reopen, this
second Motion to Reopen is found to be frivolous and is
accordingly denied on that basis.
The appointing authority has asked the Commission to bar
appellant from filing another future Motion to Reopen, but
has cited no legal authority which would empower the
Commission to issue such an order; nor is the Commission
aware of any statute conferring upon it such power.
Accordingly, the appointing authority’s request is denied.
However, the Commission notes that this Motion to
Reopen is frivolous and that it will also find similar
Motions to Reopen filed in the future which are also not
supported by actual new evidence, to be likewise. Should
appellant take an appeal from this order to the
Commonwealth Court, the Commission is of the belief that
sanctions applicable to frivolous appeals, which the
Commonwealth Court does have the power to impose,
ought to be requested by the appointing authority, and
considered by the Court. See: Pa. R.A.P. 2744.
(Commission’s 2016 order at 1-2.)
As the Commission predicted, Wei filed an appeal to this Court, arguing
his alleged “newly discovered evidence” requires that the case be reopened.
6
Discussion
A. Wei’s Motion to Reopen
On appeal,5 Wei continues to make many of the same arguments he
made to this Court in Wei I and Wei II. In his first two arguments, he asserts that (1)
the Commission erred in determining that his second motion to reopen was frivolous
and did not contain any additional facts unique from the first motion to reopen; and
(2) the two cases that the Commission and this Court relied on in denying his first
motion to reopen are distinguishable. The remainder of Wei’s arguments appear to
take issue with facts underlying the Commission’s 2008 adjudication and order.
Specifically, Wei claims that the Commission’s 2008 adjudication is clearly
erroneous and creates a manifest injustice based on documents he obtained in his
federal suit against the Department; the Commission erred in ignoring that the
Department committed fraud by making assertions in its 2008 and 2015 briefs based
on false testimony of Department employees during his administrative hearing; and
the Commission erred in denying Wei’s request for an interpreter during his
administrative hearing.
Again, 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.
5
“This Court’s scope of review of a decision of the Commission is limited to determining
whether constitutional rights have been violated, whether an error of law has been committed, or
whether substantial evidence supports the necessary findings of fact made by the Commission.”
Webb v. State Civil Service Commission (Department of Transportation), 934 A.2d 178, 184 n.2
(Pa. Cmwlth. 2007). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion without weighing the evidence or substituting the
judgment of the Commission.” Quinn v. State Civil Service Commission, 703 A.2d 565, 571 (Pa.
Cmwlth. 1997).
7
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).6
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. State Civil Service Commission, 319 A.2d 692, 693-94 (Pa. Cmwlth. 1974)
(holding that, in accordance with the Civil Service Act7 and GRAPP, a case may be
6
In his brief, Wei takes issue with the Fritz and Shoemaker cases that the Commission and
this Court cited in Wei II and attempts to distinguish them based on the facts of those cases which
were irrelevant to their holdings and applicability to his case. For example, Wei argues that, unlike
in Fritz or Shoemaker, in his case, there was a dispute as to testimony. This argument is unavailing
because the fact that there was not a dispute regarding testimony in either case was entirely
irrelevant to the Courts’ holdings, as Fritz and Shoemaker merely restate the basic and well-settled
test for determining when to open the record. Furthermore, Wei cannot collaterally attack this
Court’s decision in Wei II in his present appeal from a subsequent decision of the Commission. See
Weiner v. Lee, 669 A.2d 424, 427-28 (Pa. Cmwlth. 1995).
7
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1 – 741.1005.
8
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
2008, twice upheld upon reconsideration, and twice affirmed by this Court. See Wei
I, Wei II. 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 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 again requesting that the record be reopened for the
introduction of alleged newly discovered evidence well past the time for him 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.
Moreover, as in Wei II, Wei’s arguments, even if timely made, are not
persuasive. Wei asserts that he can show newly discovered evidence in the form of
various “admissions” and stipulations by the Department in the parties’ federal case,
namely, an interrogatory response and a webpage from the Pennsylvania Department
of Human Resources and Management (PA DHRM) titled “Classification.” Wei also
contends that he possesses newly discovered evidence consisting of other documents
pre-dating his original administrative hearing such as e-mails and meeting minutes
dated December 2004 to August 2007; a 2005-06 program revision request proposal
requesting an increase in staff to assist in processing HIV/AIDS disease reports;
9
Department charts on the HIV team’s structure in 2004 and 2006 plan for backlog
reports; slides from a 2003 presentation by New Jersey’s Department of Health and
Senior Services; a 2007 itinerary for an annual “CSTE Conference”; a table listing
2004 HIV/AIDS ratios in select states; the Department’s August 2007 suspension
letter to Wei; documents detailing Wei’s position description and responsibilities;
and a document on court interpreters at hearings before the Commission.8
(Reproduced Record (R.R.) at Doc. B, p. 1-2.)9 We note that nearly all of these
documents appear in the records of Wei I and Wei II.
With regard to the Department’s “admissions” and stipulations, which
post-date the hearing, Wei argues that, based on this new information, including a
webpage from PA DHRM’s website and a document detailing Wei’s position
description, Wei’s job duty did not include converting data. (Wei’s Brief at 30.)
Specifically, Wei argues that, when viewing the duties listed in his position
description in light of the Department’s recent “admission” that “[p]osition
descriptions should be up to date at all times,” it is clear that processing the HIV
8
We observe that virtually all documents in Wei’s reproduced record, aside from his second
motion to reopen and a reply to the Department’s response to his second motion to reopen, appear
to be excerpts of documents from his federal case, pieced together in no particular order, in such a
way that they lack context and leave the reader to guess what the documents are. Moreover, the
citations following many of Wei’s key arguments asserting newly discovered evidence are to
various paragraphs in his second motion to reopen. The citations following these paragraphs are
generally in the form: “(DFC. [page], [paragraph number]).” In his second motion to reopen, Wei
explains that DCF means “document of the federal case” and explains that, “because all Defendants
have all DFCs, Wei cites DFCs’ number directly if they are not extracted in his attachment
(“Att.”).” (R.R. at Doc. A, p. 2.) It appears, however, that Wei does not understand that this Court
lacks access to the referenced entries on the docket in his federal case and, because he has not
provided them, these statements consist merely of bald allegations lacking support.
9
Wei’s reproduced record was not submitted with sequential page numbering followed by a
lowercase “a” as required by Pa. R.A.P 2173. Hence, we will use Wei’s format as set forth above.
10
reports was not his job, but merely “his extra work.” (Wei’s Brief at 25.) Thus, he
argues, failure to complete something that was not in his position description should
not have been used as just cause to fire him.
The Department, however, never made any such admission. The
statement that “[p]osition descriptions should be up to date at all times” comes from
a printout from PA DHRM’s website, dated September 8, 2016, which Wei does not
argue was unavailable at the time of his hearing. (R.R. at Doc. B, p. 3-4.) Moreover,
it is paradoxical to think that Wei would not have known what his position’s duties
included or that he would not have had access to such information prior to the
hearing.10 A statement on a website unrelated to the Department indicating that
position descriptions should be up to date does not shed any additional light on the
matter of what Wei’s job duties entailed. Therefore, the fact remains that Wei could
have made this argument during the original administrative hearing in 2007 and, as
such, Wei has not presented new evidence.
Wei also argues that the Department “admitted [in federal court] that it
never assigned Wei to convert HARS HIV/AIDS data files” and that, based on what
appears to be the Department’s written response to an interrogatory from the federal
case admitting that a December 2006 meeting occurred and referencing a March 1,
2007, e-mail between a Bureau of Information and Technology (BIT) employee and
Wei,11 the real “task” was something else entirely, i.e., to “get an estimated number
with incoming 2007 BIT draft format [sic]. ” (Wei’s Brief at 24.) Wei argues that he
10
Notably, the same document provided by Wei describing his position’s duties appeared in
the original certified record of Wei I submitted April 23, 2008 as an exhibit to the transcript of the
original administrative hearing, in a document labeled “Exhibit AA-6.”
11
(R.R. at Doc. B, p. 55.)
11
completed the real task by e-mailing “the estimated number to Giallo[, an employee
at BIT,] and Urdaneta.” (Wei’s Brief at 24.) In other words, Wei asserts that the
assignment was something other than what the Commission and this Court
determined it was in Wei I and that, according to his definition of the assignment, he
completed it.
Initially, we note that the citation following Wei’s assertion that the
Department admitted Wei was not given an assignment to convert data is merely to a
paragraph in Wei’s second motion to reopen asserting the same.12 See supra note 7.
Thus, Wei provides no support for this argument.
Secondly, contrary to Wei’s assertion, the Department’s response to an
interrogatory in the parties’ federal suit does not constitute newly discovered
evidence. Instead, it must be considered newly created evidence as Wei only
commenced the suit in April 2011, nearly four years after the hearing. Moreover,
Wei has not explained how this response sheds any new light on his argument,
particularly since the response merely confirmed the occurrence of a December 1,
2006 meeting, which Wei attended, and proceeded to quote an e-mail summarizing
it.13
12
(R.R. at Doc. A, ¶4.)
13
The pertinent interrogatory and response reads:
A. On December 1, 2006, BIT and HIV team held a meeting room and
reached an consensus [sic] to review the document entitled “Project
Charter and Scope Plan” drawn by BIT.
Yes No x .
B. Please provide any documents and any emails for the subsequent
decision of the Project charter and Scope Plan.
(Footnote continued on next page…)
12
With regard to the remainder of the documents pre-dating the hearing,
Wei, as in his first motion to reopen, makes the argument that the Department
fraudulently concealed these documents from him, that he did not discover them until
(continued…)
RESPONSE: The Department agrees that on December 1, 2006, BIT
and HIV staff held a meeting in the BIT meeting room and a
document entitled “Project Charter and Scope Plan” may have been
discussed. There was no consensus reached on the document or its
future application to the Department. The Department is not aware
of any documents or emails regarding the decision to not implement
the Project Charter and Scope Plan. Since Plaintiff never completed
his assignment, the Department would not have been in a position to
implement the Project Charter and Scope Plan. The backlog data
was critical to the decision-making process. By way of further
response, Mr. Giallo sent an email to Dr. Urdaneta in which he
summarized the substance of the December 1, 2006 meeting:
The Meeting agreement was for BIT to provide a draft
CSV format (provided to HIV on 1/25) so Plaintiff
could get an estimated number of 2005 (only focus for
the conversion) records (by determining what
requirement fields were available in the backlogged
2005 records based upon the CSV format) that could
be converted in PA-NEDSS [Pennsylvania National
Electronic Disease Surveillance System]. With this
number of potential records to be converted, we (BIT
and HIV) would meet again and decide if this effort
qualifies for a major release like R12 or data entry
effort using the NEDSS online lab short by a staff
member or data entry clerk. Plaintiff never came up
with this actual number so this meeting never
happened to determine if it should be done in R12.
One disclaimer from the meeting is when Bill [Miller]
emphasized . . . [the rest of this email is not provided
in the Reproduced Record].
(R.R. at Doc. B, p. 55.)
13
after his administrative hearing, and that some of them were not available to him
until the Department returned his belongings to him in June 2009. Wei then
proceeds to cite these documents in making many of his previous arguments in Wei I
and Wei II with slight modifications,14 as well as several additional arguments.
For example, Wei argues that the Department committed fraud because
he has now recently determined that there were inconsistencies between Dr.
Urdaneta’s testimony at the hearing in which she states she did not recall receiving
an e-mail from Wei with his estimate about the 2005 HIV reports, (R.R. at Doc. B, p.
58-59), and the contents of a March 1, 2007 e-mail he sent to Mr. Giallo, on which
Dr. Urdaneta was copied, stating, “As I told you in the meeting last December, we
estimate 2000 potential cases.” (R.R. at Doc. B, p. 33.) Thus, Wei argues, the
Commission erred in ignoring this “newly admitted evidence,” which he believes
“alone could topple the just cause” for firing him. (Wei’s Brief at 24.)
As we stated in Wei II,
[Wei] was aware of the Department’s meeting and was a
party to the majority of the e-mail correspondence. Thus,
[Wei] 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 . . . [Wei] merely seeks to relitigate issues decided by
14
For example, in one of these arguments, Wei continues his assertion that it was not
possible for him to complete the assignment in three weeks, but he now adds an allegation of fraud,
arguing that the Department “documented” that even with the whole HIV team, including Wei,
working at top speed, it was not possible to process 50,000 HIV reports per month. (Wei’s Brief at
38.) Moreover, Wei argues, that the Department admitted that, as of 2014, it still had not
completed “this top priority yet.” (Wei’s Brief at 38.) As mentioned above, these assertions hinge
on documents from Wei’s federal case; however, the reproduced record Wei has provided only
contains small excerpts of these documents lacking context, if at all. See supra note 7.
14
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.
Wei II, slip op. at 9. Therefore, we decline to entertain Wei’s arguments based upon
these documents which were available to Wei at the time of the hearing, as they do
not constitute “newly discovered evidence.”
We do note the following, however, with regard to Wei’s argument
regarding the Commission’s alleged error in denying Wei an interpreter during the
hearing. Wei first raised this argument in Wei I, where he asserted that the
Commission violated the Federal Court Interpreters’ Act, 28 U.S.C. §1827, by failing
to provide him a Chinese interpreter. We dismissed this argument as that law, by its
own terms, only applied to United States district courts. Wei I, 961 A.2d at 258. In
Wei II, Wei renewed this argument, which we dismissed as previously decided in Wei
I. Presently, Wei renews this argument a third time citing a violation of 2 Pa.C.S. §§
561 – 568 (Administrative Proceeding Interpreters for Persons with Limited English
Proficiency).
This argument fails because, as this Court noted in Seltzer v.
Department of Education, 782 A.2d 48 (Pa. Cmwlth. 2001), “the mere demonstration
of a potential procedural error, without also alleging a resulting harm, is not
sufficient reason to disturb an agency adjudication.” Id. at 53. Not only does Wei
fail to provide any evidence that an interpreter was ever requested, but, moreover, he
also fails to indicate how he was prejudiced. Wei merely asserts that it was a
violation of his procedural rights and that “it prejudiced [him].” (Wei’s Brief at 43.)
Mere assertion of prejudice does not constitute the required allegation of resulting
harm. Seltzer.
15
Finally, throughout his brief, Wei continually makes reference to a 2007
“motion to quash” that was granted regarding a subpoena he claims to have served
on the Department prior to his hearing. Wei asserts that this prevented him from
discovering “many key documents” that he later discovered and included in his first
motion to reopen. (Wei’s Brief at 11.) However, Wei has not provided a copy of
any such subpoena, and a thorough review of the record reveals the only first page of
an undated, unsigned “Motion to Quash Subpoena in Part and For a Protective
Order,” leaving it unclear when or in which case it was filed. (R.R. at Doc. C, p. 2.)
Further, Wei fails to explain what documents he sought and how a granted motion to
quash part of a subpoena equates to fraudulent concealment of his alleged newly
discovered evidence. Moreover, this argument is not properly before this Court, as
any complaint regarding the alleged quashing of the 2007 subpoena could only have
been raised, if at all, in his first appeal from the Commission’s order and adjudication
in Wei I.15
Accordingly, we find that the Commission did not abuse its discretion in
determining that Wei’s alleged newly discovered evidence was not unavailable to
him at the time he filed his first motion to reopen.
15
The alleged order granting the quashal would have been interlocutory as it was not final
within the meaning of Pennsylvania Rule of Appellate Procedure 341 because it would not have
disposed of all claims or all parties nor is it expressly defined as final by statute. See Pa.R.A.P.
341(b). It would not have been immediately appealable given that Wei’s appeal was still pending
before the Commission and the alleged order related only to “matters preliminary to a hearing in a
discovery sense.” LeDonne v. Workmens’ Compensation Appeal Board (Graciano Corp.), 686
A.2d 891, 892-93 (Pa. Cmwlth. 1996) (quashing as interlocutory an appeal taken from an order of a
worker’s compensation judge requiring compliance with a subpoena). Accordingly, should Wei
have desired to challenge the order, the only means by which to do so would have been in his
appeal from the Commission’s final order and adjudication in Wei I.
16
B. Sanctions
On June 6, 2017, Wei filed a motion for sanctions, to which the
Department filed a timely reply on June 16, 2017.
In his motion, Wei repeats his previous arguments regarding the
Department’s commission of fraud, but also argues that the Department is “unlikely”
to have evidentiary support for various statements in its brief that either repeat
findings of the Commission in its original adjudication and order or respond to
assertions in Wei’s Brief. (Wei’s Motion for Sanctions at 9.)
For example, Wei contends that the Department’s response to his
argument that the Department admitted it never gave Wei the assignment of
converting the HARS HIV/AIDS data files constitutes a “falsification.” (Wei’s
Motion for Sanctions at 4.) In its brief, the Department argued that Wei’s notion that
he was not given this assignment “contrasts with his own words and actions,”
namely, in e-mails where he stated that he had transformed records into Statistical
Analysis System (SAS) format. (Respondent’s Brief at 14.) The Department
continued,
Because it is a well-established fact that Wei was tasked
with converting HARS HIV/AIDS files into the SAS
format, this supports the Department’s position and
undermines Wei’s allegation. Assuming, arguendo, that
Wei was not assigned this task, it is puzzling as to what,
exactly, Wei was doing with those files. If Wei was not
given this assignment, and instead chose to access private
HIV/AIDS files without the direction of his supervisors,
the Department’s case for just cause becomes even
stronger.
(Respondent’s Brief at 15.)
17
In contrast, Wei argues that, in those e-mails, he was referring to
backlog lab data, which was “totally different from HARS data” and that the
Department intentionally conflated the two “to defame Wei for the purpose of
justifying its cause for removal.” (Wei’s Motion for Sanctions at 4, 5.)16 Wei
concludes by requesting this Court grant sanctions under Pennsylvania Rules of Civil
Procedure Nos. 1023.1 and 1023.2, and this Court’s “inherent power . . . or other
appropriate laws.” (Wei’s Motion for Sanctions at 2.)
However, as the Department points out, this case is proceeding under
the Court’s appellate jurisdiction and accordingly is governed by the Pennsylvania
Rules of Appellate Procedure. See Pa. R.A.P. 103. Thus, Wei has not alleged a
sufficient legal basis for his request. Moreover, Wei’s contentions do not rise to a
level justifying a grant of sanctions, as Wei has failed to demonstrate that these
statements constitute anything more than assertions or established facts with which
Wei disagrees. Accordingly, Wei’s motion for sanctions is denied.
Conclusion
In conclusion, for the foregoing reasons, the order of the Commission
denying Wei’s second motion to reopen is affirmed. Additionally, Wei’s motion for
sanctions is denied.
16
Wei completely ignores that this very fact—that Wei was assigned the conversion
assignment and failed to do it—was one of the key findings of the Commission’s adjudication and
order that we upheld Wei I, observing: “Here, Wei was terminated for not completing the HARS
HIV/AIDS assignment by July 31, 2007 . . . The e-mails evidence that for six months Wei was
insubordinate in refusing to accept responsibility for the assignment that was his to complete.” Wei
I, 961 A.2d at 259 (emphasis added).
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ming Wei, :
Petitioner :
: No. 1902 C.D. 2016
v. :
:
State Civil Service Commission :
(Department of Health), :
Respondent :
PER CURIAM ORDER
AND NOW, this 1st day of September, 2017, the November 18, 2016
order of the Pennsylvania State Civil Service Commission is affirmed. The June 6,
2017 motion of Ming Wei for sanctions is denied.