concurring.
While I join the Majority Opinion, I write separately to further develop my reasoning in reaching this result. In particular, the argument of the Pennsylvania Employees Benefit Trust Fund (PEBTF) concerning the guidance given by the Department of Labor (DOL) in the shifting of a governmental plan from exempt to non-exempt pursuant to the Employees Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq., is unsubstantiated.
As noted by the Majority, Appellant did not raise the disjunctive language in the statute governing the instant matter, 29 U.S.C. § 1002(82), in the court below. Maj. Op. at 173 n. 10, 883 A.2d at 436 n. 10. As such, the issue is waived. If this issue is raised in the future, it may render moot the discussion of the DOL’s apparent allowance of the change in categorization of a plan from governmental to non-governmental. See Triplett v. United Behavioral Health Systems, Inc., 1999 WL 238944 (E.D.Pa.1999) (holding that, based upon the plain language of 29 U.S.C. § 1002(32), a plan formed as a governmental plan must remain a governmental plan). However, until that time, I note that the interpretation of an agency concerning a regulation within its scope is entitled to deference. See Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 313 A.2d 156, 169 (1973) (citing American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 57 S.Ct. 170, 81 L.Ed. 142 (1936)). As such, the guidance given by the DOL in determining the criteria for becoming a non-governmental plan should be heeded.
In 1996, Appellee requested information from the DOL regarding its planned extension of coverage to private sector employees and asked how that would affect its status under the governmental plan exemption of ERISA. The DOL responded in an Opinion Letter (Letter), which Appellee argues states that covering more than a de minimis number of private sector employees would result in a loss of the governmental plan exemption and ERISA qualification. Appellee relied on the Letter as showing that Appellee was indeed *176ERISA qualified until January of 1998, when it voluntarily relinquished its ERISA status and its right to subrogation. Both the trial court and the Superior Court used the Letter, as well as the lack of challenge from the DOL of the filing of ERISA required documents, as proof that Appellee had gained ERISA status.
At the heart of Appellee’s argument is the Letter’s reference to a 1995 DOL Opinion Letter (Letter 95-27A), which implies that a non-governmental employee coverage of approximately eight percent still amounts to de minimis coverage of private sector employees. See http://www.dol.gov/ebsa/programs/ori/advisory95/95-27a.htm (last visited 7/26/05). In Letter 95-27A, the DOL stated that 270 private sector employees out of 3500 participants in the plan, approximately 7.7%, was insufficient to exceed the de minimis criterion; as such, the plan was still considered a governmental plan for failing to meet the de minimis standard concerning nongovernmental employee coverage. Although opinion letters are not necessarily binding, and refer only to the factual situation related therein, a material issue of fact arises as to whether or not Appellee falls within the governmental plan exemption. Moreover, the DOL’s interpretation should be given weight when determining the status of a party pursuant to ERISA. See Uniontown Area School District, supra.
In the present case, PEBTF, by its own admission, had more than 85,000 participants, of which approximately 1,000, or 1.2%, were private sector employees. It should be noted that Appellant submits his own criteria stating that in 1997, total Commonwealth contributions to PEBTF amounted to $285,066,966.00, and private contributions in 1997 were a mere $1,589,358.00. Using these figures, the non-government employee contributions totaled a little more than one-half of one percent (0.5%). The Letter did not address the particular situation of Appellee, but merely stated that a plan must include more than a de minimis number of private sector employees. By virtue of the reference to Letter 95-27A, it is reasonable to interpret the Letter as stating that Appellee was still a governmental plan. However, Appellee argues that the *177sheer number of employees, although small by percentage, may be the deciding factor in determining whether a plan still falls within the governmental plan exemption. Appellee cites no case law or opinion letter to support its solely numeric or percentage based criterion for determining ERISA status.
Additional research would have revealed supplementary DOL guidance. In Letter 95-15A, the DOL concluded that a two percent composition of private sector employees did not exceed the de minimis standard, which is a greater percentage than the one in the instant matter. The generic Letter sent to Appellee, combined with a reading of the two other DOL opinion letters, suggests that the trial court and Superi- or Court were hasty in classifying Appellee as ERISA qualified. Accordingly, we must determine the tipping point in terms of percentages or numbers of non-government employees covered that will cause the governmental plan exemption to be lost.
I am sympathetic to the argument by Appellee that it would be a breach of fiduciary duty pursuant to'ERISA, subjecting its members and the funds itself to fines, if Appellee failed to file the appropriate ERISA forms when ERISA qualified. As a result of this duty, Appellee argues that it is in the best position to determine its status pursuant to ERISA and should-not be penalized for attempting to avoid the harsh consequences, labeled draconian by Appellee, imposed by ERISA for failure to comply with its terms. However, as noted by Triplett, supra, and the dissent in the Superior Court, a litigant’s attempt to classify itself, even if believed to be correct, does not make it true. “[Tjhere is no reason to think that a plan’s determination of its status under ERISA is any more meaningful than any litigant’s determination of its status under any statute. I thus find that Appellee’s interpretation of itself as a non-governmental plan is not relevant.” Triplett, 1999 WL 238944 at *3.
Moreover, an additional letter asking for clarification from the DOL, or a commonsense interpretation of the DOL’s approach to the de minimis standard, would have led to the conclusion that PEBTF was still a governmental plan pursu*178ant to ERISA and, therefore, exempt and subject to the MVFRL. The generic response was not an invitation to Appellee to interpret itself as it saw fit. In the case sub judice, PEBTF covered a mere 1.2% of private sector employees contributing approximately one-half of one percent (0.5%) in monetary terms. As such, the mathematical data available to PEBTF, which the DOL brought to its attention, clearly indicate that its coverage of private sector employees did not exceed the de minimis threshold.
Although the DOL has not promulgated an exact number required to remove a plan from the definition of a governmental plan, as stated above, the DOL has found that two percent private sector coverage is insufficient. DOL Opinion Letter 95-15A. Moreover, the district court in Triplett, supra, addressed PEBTF’s ERISA categorization as being a governmental plan and, therefore, non-ERISA qualified. In addition, other jurisdictions have addressed the topic of de minimis for purposes of removing a plan from the governmental plan exemption. In Kirkpatrick v. Merit Behavioral Care Corp., 70 F.Supp.2d 443 (D.Vt.1999), the Vermont District Court stated that, in a case involving 7.6% private employees, “[mjoreover, given the small number of non-governmental employees involved, the governmental plan exception’s purpose is not violated and its scope is not unduly broadened by placing the Schools Plan within the exception.” Id. at 448. Furthermore, the United States District Court for the District of Maine addressed the issue in Hall v. Maine Municipal Employees Health Trust, 93 F.Supp.2d 73 (D.Me.2000):
In this case, MMEHT has allowed the employees of a small number of non-profit organizations who perform municipal functions to participate in the Trust since 1990. Of the 16,399 employees participating in MMEHT, 609, or 3.7, are non-governmental employees. The Court is satisfied that this number of non-governmental employees is de minimis.
Id. at 81 (citing Kirkpatrick and Triplett) (footnotes deleted).
I find the reasoning of these courts to be persuasive and conclude that, because of the DOL letters addressing de minimis in prior scenarios and the small percentage of non*179governmental employees at stake here, PEBTF was a governmental plan exempt from ERISA during the period in question. Accordingly, state law applies pursuant to Section 1720 of the MVERL, 75 Pa.C.S. § 1720, and Appellee is not entitled to subrogation.