                           [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
