[J-62-2018] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
DANIEL HARMON, : No. 37 EAP 2017
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on 06-
: 07-2017 at No. 787 CD 2015 affirming
v. : the decision entered on 4-15-2015 by
: the Unemployment Compensation
: Board of Review at No. B-577458.
UNEMPLOYMENT COMPENSATION :
BOARD OF REVIEW, : ARGUED: September 25, 2018
:
Appellee :
CONCURRING OPINION
JUSTICE WECHT DECIDED: April 26, 2019
Section 402.6 of the Unemployment Compensation Law provides that “an
employe”1 cannot receive unemployment benefits for any week “during” which he or she
is incarcerated after a conviction. 43 P.S. § 802.6. I agree with the learned Majority that
the word “during,” as used in that section, is ambiguous. I also agree that, given this
ambiguity, we should construe Section 402.6 to mean that claimants serving sentences
of weekend-only confinement remain eligible to receive unemployment compensation
1 No, that’s not a typo. For reasons I have been unable to discern, the General
Assembly frequently uses this curious spelling of “employee” in both the Unemployment
Compensation Law, 43 P.S. § 751 et seq., and the Workers’ Compensation Act, 77 P.S.
§ 1 et seq. While most of our legal archaicisms are of British derivation, this particular
one, oddly enough, seems to be of French origin. See BRYAN A. GARNER, A DICTIONARY
OF MODERN LEGAL USAGE (2d ed. 1995) (“Although employé, the French form, might
logically be thought to be better as a generic term, employée (which French denotes the
feminine gender) is so widespread (without the accent mark) that it is not likely to be
uprooted.”).
benefits. I write separately because I disagree respectfully with the Majority’s discussion
of administrative agency “deference,” see Maj. Op. at 10-13, and because I believe that
the Majority places far too much weight on the legislative “history” of Section 402.6, see
id. at 18-21.
As I have explained in the past, I do not agree that reviewing courts should afford
what often amounts to unqualified deference—i.e., Chevron2 deference—to an executive-
branch agency’s interpretation of an ambiguous statute. See Snyder Bros., Inc. v. Pa.
Pub. Util. Comm’n, 198 A.3d 1056, 1083 (Pa. 2018) (Wecht, J., concurring) (“The General
Assembly tells us what a law is. When that law is less than clear, we must perform our
interpretive duty.”). While courts may consider (and might ultimately be persuaded by)
the interpretation offered by an administrative agency charged with administering a
particular statute, “the meaning of a statute is essentially a question of law for the court.”
Id. (citing Phila. Suburban Corp. v. Pa. Bd. of Fin. & Revenue, 635 A.2d 116, 118 (Pa.
1993)); see 1 Pa.C.S. § 1921(c)(8) (explaining that reviewing courts may consider
administrative interpretations of an ambiguous statute). Courts should not delegate their
interpretative responsibilities to state agencies.
But let me suspend my heresy for a moment and assume, like the Majority, that
Chevron-style deference should remain an element of Pennsylvania law. Even under
such a deferential rubric, there is little doubt that the Commonwealth Court erred in
deferring to the Board’s interpretation of Section 402.6 in this case. That is because,
2 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
[J-62-2018] [MO: Dougherty, J.] - 2
under the current (albeit evolving)3 precedent of the United States Supreme Court,4
deference is warranted only when the legislature “expected the agency to be able to
speak with the force of law when it addresses ambiguity in the statute,” United States v.
Mead Corp., 533 U.S. 218, 229 (2001), and is unwarranted if the legislature has not
delegated interpretive authority to the agency. 5 Here, nothing in the Unemployment
Compensation Law suggests that the General Assembly used the word “during” in
Section 402.6 because it wanted the Board—or even the Department of Labor and
Industry—to use its delegated authority to interpret that term. Thus, the Commonwealth
Court erred in holding that the Board’s preferred definition of the word “during” was
entitled to deference unless it is “clearly erroneous.” See Harmon v. Unemployment
Comp. Bd., 163 A.3d 1057, 1061 (Pa. Cmwlth. 2017).
Turning to a textual analysis of Section 402.6, I agree with the Majority to the extent
that it relies upon the purpose of the Unemployment Compensation Law (as described in
43 P.S. § 752) and upon the general principle that ambiguous provisions of that Law
should be construed liberally to provide the broadest possible benefits. Maj. Op. at 19-
3 See, e.g., Pereira v. Sessions, ___ U.S. ___, 138 S.Ct. 2105, 2121 (2018)
(Kennedy, J., concurring) (“[I]t seems necessary and appropriate to reconsider, in an
appropriate case, the premises that underlie Chevron and how courts have implemented
that decision.”); SAS Institute, Inc. v. Iancu, ___ U.S. ___, 138 S.Ct. 1348, 1364 (2018)
(Breyer, J., concurring) (explaining that courts should not treat Chevron “like a rigid, black-
letter rule of law, instructing them always to allow agencies leeway to fill every gap in
every statutory provision”).
4 Though not bound by the United States Supreme Court on matters of
administrative law, this Court generally has chosen to follow SCOTUS precedents in the
area. NW. Youth Servs., Inc. v. Commonwealth, Dep’t of Pub. Welfare, 66 A.3d 301, 311
(Pa. 2013) (“Pennsylvania courts’ treatment of deference to administrative agency rules
has followed the United States Supreme Court’s lead . . . .”).
5 See King v. Burwell, ___ U.S. ___, 135 S.Ct. 2480, 2488 (2015) (explaining that
Chevron deference “is premised on the theory that a statute’s ambiguity constitutes an
implicit delegation from Congress to the agency to fill in the statutory gaps” (quoting FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000))).
[J-62-2018] [MO: Dougherty, J.] - 3
21, 23; see Chamberlain v. Unemployment Comp. Bd. of Review, 114 A.3d 385, 395 (Pa.
2015). I agree as well with the Majority’s rejection of the Board’s surplusage argument.
See Maj. Op. at 22.
I cannot join the Majority’s analysis in full, however, because it relies heavily upon
the legislative history of Section 402.6. Or, to be more precise, the Majority relies upon
Chamberlain, which in turn relied upon the legislative history of Section 402.6. Id. at 20-
21. Specifically, the Majority quotes a single floor statement delivered by a single
legislator (Representative William Lloyd) in connection with his efforts to drum up support
for the 1996 amendments to the Unemployment Compensation Law. See id. This
reliance upon a lawmaker’s remarks—whether quoted directly or bootstrapped via the
very same quotation in our decision in Chamberlain—is unwise. As I have explained in
prior cases, I believe that courts should exercise “a healthy caution, skepticism, and
discipline” with respect to legislative history, particularly when dealing with floor
statements and committee reports, which do not necessarily reflect the collective intent
of the entire General Assembly.6
Our task here, as the Majority notes, is “to ascertain and effectuate the intent of
the General Assembly.” Maj. Op. at 18 (quoting 1 Pa.C.S. § 1921(a)). Our goal is not to
ascertain and effectuate the intent of Representative William Lloyd. In the vast majority
of cases, the exercise of poring over legislative journals for choice nuggets of debate and
discourse is unlikely to yield a sound assessment of the General Assembly’s intent.7 It
6 See Snyder Bros., 198 A.3d at 1082 (Wecht, J., concurring) (“As a general matter,
I am skeptical about the utility of examining draft bills, committee reports, and floor
statements to discern correctly each legislator’s own subjective motivations, much less
the collective intent of the entire body.”).
7 See Snyder Bros., 198 A.3d at 1083 (Wecht, J., concurring) (“This strikes me as
an obvious instance when using legislative history to discern the General Assembly’s
intent is, to paraphrase the late Judge Harold Leventhal of the United States Court of
[J-62-2018] [MO: Dougherty, J.] - 4
seems obvious that a pithy statement uttered by a single member of the Pennsylvania
House of Representatives is not a reliable indication of the intent of the entire House.
Moreover, it tells us nothing whatsoever about the intent of the Senators who also voted
to amend the Unemployment Compensation Law in 1996.
Though I would forego any resort to the legislative history upon which today’s
Majority relies, I nevertheless concur in the result. The preposition “during,” as used in
Section 402.6 of the Unemployment Compensation Law, could mean “from the beginning
to the end of a particular period” (as in: “You should avoid the expressway during rush
hour.”). Or it could mean “at a specific point in the course of” (as in: “She visited the
Smithsonian during her trip to Washington, D.C.”). Given these two competing definitions,
the Majority correctly selects the one that comports with the stated purpose of the
Unemployment Compensation Law and honors the rule that remedial legislation should
be construed liberally. See Chamberlain, 114 A.3d at 395; 1 Pa.C.S. § 1928(c).
Appeals for the District of Columbia Circuit, ‘the equivalent of entering a crowded cocktail
party and looking over the heads of the guests for one’s friends.’ Conroy v. Aniskoff, 507
U.S. 511, 519 (1993) (Scalia, J., concurring).”).
[J-62-2018] [MO: Dougherty, J.] - 5