Harmon, D., Aplt. v. UCBR (concurring)

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[J-62-2018][M.O. - Dougherty, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT DANIEL HARMON, Appellant v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee : : : : : : : : : : : : No. 37 EAP 2017 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 Unemployment Compensation Board of Review at No. B-577458 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 1213. 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. [J-62-2018][M.O. – Dougherty, J.] - 2

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