[ J
- 74 - 2018 ] [MO: Saylor, C.J. ] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COUNTY OF BUTLER,

Appellee

v.

CENTURYLINK COMMUNICATIONS, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; THE UNITED TELEPHONE COMPANY OF PENNSYLVANIA , LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; CONSOLIDATED COMMUNICATIONS OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; CONSOLIDATED COMMUNICATIONS ENTERPRISE SERVICES, IN C., AND ALL SUBSIDIARIES AND RELATED ENTITIES; CORE COMMUNICATIONS, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; INTERMEDIA COMMUNICATIONS OF FLORIDA, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; VERIZON PENNSYLVANIA, INC., AND ALL SUBSIDIARIES AND RELATED ENTITIES; LEVEL 3 COMMUNICATIONS, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; TELCOVE OF EASTERN PENNSYLVANIA, AND ALL SUBSIDIARIES AND RELATED ENTITIES; AT&T CORP., AND ALL SUBSIDIARIES AND RELATED ENTITIES; TELEPORT COMMUNICATIONS AMERICA, L LC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; US LEC OF PENNSYLVANIA, : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : No. 66 WAP 2017 Appeal from the Order of the Commonwealth Court entered June 8, 2017 at No. 1506 CD 2016, reversing the Order of the Court of Common Pleas of Butler County entered August 11, 2016 at No. 15

- 11007, and remanding. ARGUED: October 23, 2018[J

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LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; BANDWIDTH.COM CLEC, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; COMCAST PHONE OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; PEERLESS NETWORK OF PENNSYLVANIA, LLC, AND ALL SUBSIDIARIES AND RELATED ENTITIES; AND ABC COMPANIES 1 THROUGH 20, Appellants : : : : : : : : : : : : :

CONCURRING O PINION

JUSTICE WECHT DECIDED: APRIL 26, 2019 I join the learned Majority Opinion. I write separately to address Butler County ’s suggestion that we defer to what it asserts is the position of the Pennsylvania Emergency Management Agency on the question presented. Specifically, the County asks that we credit the statutory interpretation ventured in the affidavit of PEMA’s Deputy Director for 911 Services, Robert Mateff . T he County offered Mr. Mateff’s affidavit for the first time
as an attachment to its m otion seeking r econsideration of the trial court’s ruling sustaining defendants’ preliminary objections. T he Majority briefly considers , and aptly rejects , the County’s effort in this regard

. See Maj. Op. at 18

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. I cannot agree more adamantly with the Majority’s comments regarding the
dubiousness of Mr. Mateff’s affidavit , which I find as textually unpersuasive as it is unsettling in its implications

. T he issue at bar has formed the basis for numer ous cases[J

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statewide

. S ee Maj. Op. at 18

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. 1 Yet the only evidence we have of PEMA’s (non)enforcement policy is an affidavit describing a unilateral assumption that was neither formalized nor conveyed to the counties allegedly suffering a burden PEMA foisted upon
them sub silentio . This suggests an abdication at least of PEMA’s self

- evident responsibility to inform the affected communit ies of PEMA’s views and afford them an opportunity to share their concerns on a matter of such consequence

. W orse still , it aris es against a broadly

- worded statutory duty to enforce the Act , which, at a minimum, should not have been cast aside without due deliberation and transparency

. See id. at 19 (“[I]t seems rather clear that the agency is disregarding its duties under its own enabling legislation.”) ; 35 Pa.C.S. § 5303(a)(12) (superseded) (assigning PEMA the “dut[y]

. . . [t]o take the actions necessary to implement, administer and enforce the provisions of this chapter”)

. Even if that duty is amenable to more than one reasona ble interpretation, as the Majority generously allows, see Maj. Op. at 17

- 18, such ambiguity provides the strongest indication that it was incumbent on PEMA to address the matter more rigorously and transparently than it has done

. It is precisely to avoid the arbitrariness that attends such a hasty , conclusory,
unreasoned submission that this Court and the United States Supreme Court have refused to defer to an agency opinion where “there [was] nothing in the record indicating that the [agency] had considered and decided [the] issue at a point prior to the instant

1 Evidently, pervasive actions challenging the adequacy of enforcement and collections relative to the funding of 911 services are not a phenomenon peculiar to Pennsylvania. According to the joint brief of amici curiae the United States Chamber of Commerce and the Pennsylvania Chamber of Business and Industry, an entity called Phone Recovery Services has marketed contingency fee

- based outside representation to government entities to pursue such claims, a practice amici explain and criticize at length. Amici Curiae Brief for Chambers of Commerce at 19

- 27.[J

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litigation.” Malt Beverages Dist rib . Ass’n v. Pa. Liquor Control Bd. , 974 A. 2d 1144, 1154 (Pa. 2009). “ D eference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.” Bowen v. Georgetown Univ. Hosp. , 488 U.S. 204 , 213 (1988)

. H ere , we have a n ad hoc statutory interpr etation , developed with no formality or deliberation whatsoever, as far as we know only upon the occasion of this or similar litigation , concerning upon whom the General Assembly intended to impose the duty in
the first instance

— not what that duty might re quire of PEMA . On no account can that question be thought to be a regulatory matter informed by PEMA’s expertise

. Cf. Seeton
v. Pa. Game Comm’n , 937 A.2d 1028 (Pa. 2007) (rejecting the Game Commission’s attempt to confine the scope of its duty based upon what the Court found to be an untenable statutory interpretation). Whether a statute imposes a given duty manifestly is a pure question of law that a court should consider de novo , privileging no advocate’s view to a greater extent than its legal merit warrants

. See Piper v. Chris

- Craft Indus., Inc. , 430 U.S. 1 , 41 n.27 (1977) (expressing doubts regarding the relevance of agency expertise to gleaning whether a private right of action was intended by Congress, a question “peculiarly reserved for judicial resolution”); Janus Capital Grp., Inc. v. First
Derivative Traders , 564 U.S. 135, 145 n.8 (2011) ( reaffirming Piper ) ; Snyder Brothers v. Pa. Pub. Utility Comm’n , 198 A.3d 1056, 1083 (Pa. 2018) (Wecht, J., concurring) (“Statutory interpretation is an impor tant part of the work that we do. We do not subcontract that interpretive enterprise to administrative agencies. ” )

.[J

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In no ne of its form s has agency deference ever vindicate d such casual and consequential agency decision

- making. W hatever legal standard we apply , we owe no deference to a post and ad hoc interpretation offered for the first time in litigation

.