                            [J-62-2018][M.O. - Dougherty, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT


DANIEL HARMON,                                 :   No. 37 EAP 2017
                                               :
                      Appellant                :   Appeal from the Order of the
                                               :   Commonwealth Court entered on 6/7/17
                                               :   at No 787 CD 2015 affirming the
                                               :   decision entered on 4/15/15 by the
                 v.                            :   Unemployment Compensation Board of
                                               :   Review at No. B-577458
UNEMPLOYMENT COMPENSATION                      :
BOARD OF REVIEW,                               :
                                               :
                      Appellee                 :   ARGUED: September 25, 2018


                                  CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                           DECIDED: April 26, 2019


       I join the majority opinion, except for the treatment of deference due to the

Unemployment Compensation Board of Review. See Majority Opinion, slip op. at 12-

13. In this regard, I believe that some consideration should be given to the Board’s

adjudicative role at the time it proffered its interpretation of the governing statute. See,

e.g., Ark. Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 292, 126 S. Ct.

1752, 1767 (2006) (explaining that “agency adjudications typically warrant deference”);

accord ARIPPA v. PUC, 792 A.2d 636, 660 (Pa. Cmwlth. 2002) (noting that deference is

due to an agency’s interpretation of a statute rendered while acting in an expert capacity

during the course of an adjudication). Such a role seems less likely than that of an

adversarial litigant to incentivize administrative agencies to “adopt positions arbitrarily
and/or based on interests unrelated to . . . legislative intent[.]” Huntley & Huntley v.

Borough of Oakmont, 600 Pa. 207, 229, 964 A.2d 855, 868 (2009).

      A pervading question in this field, of course, is how much deference is due in any

given context.   For present purposes, I find that the majority’s able analysis of the

relevant statute is substantially more persuasive than the reasoning supplied by the

Board and surpasses the weight of the deference that I would accord. Further, and

relatedly, the particular statutory-interpretation issue raised in the present matter only

modestly implicates agency expertise.




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