[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, INC., 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, LLC, 

AND ALL SUBSIDIARIES AND RELATED 

ENTITIES; US LEC OF PENNSYLVANIA, 

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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-74-2018] [MO: Saylor, C.J.] - 2

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

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CONCURRING OPINION

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. The County offered Mr. Mateff’s affidavit for the first time 

as an attachment to its motion seeking reconsideration of the trial court’s ruling sustaining 

defendants’ preliminary objections. The Majority briefly considers, and aptly rejects, the 

County’s effort in this regard. See Maj. Op. at 18-20. 

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. The issue at bar has formed the basis for numerous cases
[J-74-2018] [MO: Saylor, C.J.] - 3

statewide. See Maj. Op. at 18-19.

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 communities of PEMA’s views and afford them an 

opportunity to share their concerns on a matter of such consequence. Worse still, it arises 

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 reasonable 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-74-2018] [MO: Saylor, C.J.] - 4

litigation.” Malt Beverages Distrib. Ass’n v. Pa. Liquor Control Bd., 974 A.2d 1144, 1154 

(Pa. 2009). “Deference 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).

Here, 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, concerning upon whom the General Assembly intended to impose the duty in 

the first instance—not what that duty might require 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 important part of the work that we do. We do not 

subcontract that interpretive enterprise to administrative agencies.”).
[J-74-2018] [MO: Saylor, C.J.] - 5

In none of its forms has agency deference ever vindicated such casual and 

consequential agency decision-making. Whatever legal standard we apply, we owe no 

deference to a post and ad hoc interpretation offered for the first time in litigation.