                           [J-108-2018] [MO:Saylor, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 GENERAL MOTORS, LLC                          :   No. 24 MAP 2018
                                              :
                                              :   Appeal from the Order of the
              v.                              :   Commonwealth Court at No. 1075 CD
                                              :   2016 dated August 16, 2017,
                                              :   reconsideration denied October 12,
 BUREAU OF PROFESSIONAL AND                   :   2017, Reversing the Decision of The
 OCCUPATIONAL AFFAIRS, STATE                  :   State Board of Vehicle Manufacturers,
 BOARD OF VEHICLE                             :   Dealers and Salespersons at No.
 MANUFACTURERS, DEALERS AND                   :   1325-60-2014 dated June 10, 2016
 SALESPERSONS                                 :
                                              :   ARGUED: December 6, 2018
                                              :
 APPEAL OF: BUDD BAER, INC. D/B/A             :
 BUDD BAER BUICK GMC                          :


                     CONCURRING AND DISSENTING OPINION


JUSTICE MUNDY                                                 DECIDED: July 17, 2019

      I join Section II of the well-reasoned Majority Opinion finding that the surcharge

General Motors imposed in this case is not permissible pursuant to Section 9(b.4) of the

Board of Vehicles Act. I write separately, however, to note my disagreement with Section

I of the Majority Opinion. Because I conclude that the Majority’s construction in Section

1 of the Board of Vehicles Act (the Act), 63 P.S. §§818.1-818.37, is antithetical to its

stated purpose and undercuts the mandatory language utilized in the Act, I respectfully

dissent.

      When faced with questions of statutory interpretation, “the primary maxim . . . is to

ascertain and effectuate legislative intent.” Commonwealth v. Shiffler, 879 A.2d 185, 189

(Pa. 2005). This course of action is not only mandated by statute, 1 Pa.C.S. § 1921(a),

but is also critical to the separation of powers upon which our government is based. See
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If

the intent of Congress is clear, that is the end of the matter; for the court as well as the

agency, must give effect to the unambiguously expressed intent of Congress.”); Jefferson

Cnty. Court Appointed Emp. Ass’n v. Pa. Labor Relations Bd., 985 A.2d 697, 707 (Pa.

2009) (“A legislative action that impairs the independence of the judiciary in its

administration of justice violates the separation of powers; the corollary is that a judicial

action that infringes on the legislative function also violates the separation of powers.”).

The plain language of a statute is generally the best indication of legislative intent. See

Commonwealth v. Bradley, 834 A.2d 1127, 1132 (Pa. 2003).

       The Board of Vehicles Act was promulgated as an “exercise of [the General

Assembly’s] police power . . . in order to prevent frauds, impositions and other abuses

upon [the Commonwealth’s] citizens and to protect and preserve the investments and

properties of the citizens[.]” 49 Pa. Code § 19.1. Agreeing with the Majority that this Act

constitutes remedial legislation, Majority Opinion at 12, we are again mandated by the

Statutory Construction Act to liberally construe and broadly interpret the Act in order to

effectuate its purpose. 1 Pa.C.S. § 1928(c). The Majority, however, dismisses this

legislative directive by relying on General Motors Corp. v. Darling’s, 444 F.3d 98, 109 (1st

Cir. 2006), for the proposition that the contractual relationship between vehicle

manufacturers and distributors should not be interfered with absent an express

prescription from the legislature.     Majority Opinion at 12.       I find this reasoning

unpersuasive.

       The Darling’s case concerned Maine’s warranty reimbursement statute and was

heard by a federal court sitting in diversity, which impacted the court’s analysis of the

matter. Darling’s, 444 F.3d at 109 (noting that the court was “obliged to give effect to the

[Supreme Judicial Court]’s authoritative construction of the Maine statute”). Among the




                            [J-108-2018] [MO: Saylor, C.J.] - 2
many arguments presented by the parties, the dealer asserted that because the statute

was silent as to the manufacturer’s right to “re-approve” certain warranty reimbursement

claims outside of the warranty approval window,         the “statutory silence supersedes

General Motor’s contractual right to audit and charge back claims once they have been

approved.” Id. at 108. The court disagreed with this line of reasoning, noting that “the

statute’s silence means precisely the opposite of what [the dealer] says it means.” Id. at

109. On this basis, the court concluded that it was unwilling to “interfere with the bargains

that have been struck between manufacturers and their distributors[,]” which is the cited

reason the Majority refused to broadly interpret the statute in favor of its legislative

purpose. Majority Opinion at 12.

       Unlike the dealer in Darling’s, the dealers in this case are not basing their argument

on the silence of the Act.     Rather, the dealers here are relying on the consistent,

mandatory language utilized. For example, the Act provides that compensation for parts

used in warranty repairs “shall be at the dealer’s retail rate[,]” and provides the procedure

by which the retail rate “shall be established.” 63 P.S. § 818.9(a)(2) (emphasis added);

see also Coretsky v. Board of Comm’rs of Butler Twp., 555 A.2d 72, 74 (Pa. 1989) (“By

definition, ‘shall’ is mandatory. Accordingly, there is no latitude for overlooking the plain

meaning of [the statute] to reach a more desired result.”). The Majority, however, is

permitting General Motors to undercut this statutory protection by conditioning it upon the

forbearance of a contractual right. Aside from the legislative mandate that the statute

should be broadly interpreted to effectuate its purpose, the Majority’s conclusion is

untenable because it permits General Motors to limit the statutory protections which the

legislature enacted to protect dealers from manufacturers like General Motors. See 1

Pa.C.S. § 1928(c); see also Burke by Burke v. Independence Blue Cross, 171 A.3d 252,

264 (Pa. 2017) (“[W]e construe the statute liberally, in furtherance of its remedial aims[.]”)




                            [J-108-2018] [MO: Saylor, C.J.] - 3
       Further, I agree with the Commonwealth Court’s dissent in that proper deference

was not afforded to the Board’s interpretation of the Act. “The proper place to begin the

appropriate inquiry is not . . . with the dictionary but with due deference to the views of

the regulatory agency directly involved in administering the statute in question.” Alpha

Auto Sales v. Dep’t of State, Bureau of Prof’l & Occupational Affairs, 664 A.2d 153, 155

(Pa. 1994). Indeed, the Commonwealth Court’s “focus must center on the Board’s

interpretation of the Act and its application to Petitioner; the Board’s decision cannot be

overturned unless clearly erroneous.” Maggio v. Pennsylvania State Bd. of Vehicle Mfrs.,

Dealers, and Salespersons, 659 A.2d 1071, 1074 (Pa. Cmwlth. 1995).

       Neither the Commonwealth Court nor the Majority of this Court have established

on what basis the Board’s interpretation of the Act is clearly erroneous. The Majority

Opinion implies that great deference should not be afforded to the Board because the

interpretation in this case is not a longstanding one. Majority Opinion at 13. The Majority

fails, however, to fully appreciate that the Act is chiefly within the ambit of the Board’s

expertise.1 While I tend to agree with the broader principles the Majority alludes to

regarding administrative deference, I am of the opinion that this Court should directly

address the issue of administrative deference and review whether such a rule is still

cogent in Pennsylvania.2 For the foregoing reasons, I respectfully dissent.

1 In fact, the Pennsylvania Board of Vehicles Act was the statutory authority that created
the Pennsylvania State Board of Vehicle Manufacturers, Dealers, and Salespersons. 63
P.S. § 818.3
2 This Court has consistently shown a willingness to chip away at the administrative
deference rule. See Harmon v. UCBR, --- A.3d ---, 2019 WL 1866696, No. 37 EAP 2017
(Pa. 2019) (Wecht, J., concurring) (“I do not agree that reviewing court should afford what
often amounts to unqualified deference . . . to an executive-branch agency’s interpretation
of an ambiguous statute.”); Greenwood Gaming and Entm’t, Inc. v. Pa. Gaming Control
Bd., 15 A.3d 884, 894 (Pa. 2011) (Saylor, J. dissenting) (declining to defer to the
administrative construction of the statute in question); Malt Beverages Distrib. Ass’n v.
Pa. Liquor Control Bd., 974 A.2d 1144, 1154 (Pa. 2009) (“We also decline to afford



                           [J-108-2018] [MO: Saylor, C.J.] - 4
administrative deference to the PLCB’s interpretation of the Code for two reasons.”); Cnty.
of Butler v. CenturyLink Commc’n, LLC --- A.3d ---, 2019 WL 1870377, No. 66 WAP 2017
(Pa. 2019) (Wecht, J., concurring) (rejecting the county’s argument seeking administrative
deference where “we have an ad hoc statutory interpretation, developed with no formality
or deliberation whatsoever, as far as we know only upon the occasion of this or similar
litigation[.]”). In lieu of slowly moving this Court’s jurisprudence away from the
administrative deference rule and leaving litigants with limited guidance as to the rule’s
applicability, I believe this Court should reconsider the line of cases establishing the
administrative deference rule.
