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, 
2

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.

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 (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 

 

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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.)
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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 
4

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. 
5

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 Act2and 

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.
6

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 
7

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.
8

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.)
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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 
10

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
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