[J-71-2022] [MO: Brobson, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

DR. TIMOTHY AND DEBRA SHROM,

Appellees

v.

PENNSYLVANIA UNDERGROUND 

STORAGE TANK INDEMNIFICATION 

BOARD,

Appellant

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No. 21 MAP 2022

Appeal from the Order of the 

Commonwealth Court dated August 

5, 2021, at No. 637 CD 2020 

Reversing the June 22, 2020 Order 

of the Underground Storage Tank 

Indemnification Board at No. UT19-

03-015 and Remanding.

ARGUED: October 25, 2022

CONCURRING OPINION

JUSTICE MUNDY DECIDED: April 19, 2023

I would find that the provision at issue, Section 706(3) of the Storage Tank and 

Spill Prevention Act (the “Act”), see 35 P.S. § 6021.706(3), is materially ambiguous. I 

also believe the ambiguity should be resolved in Appellees’ favor. As the majority

concludes the provision unambiguously allows for the late payment of fees, see Majority 

Op. at 34, I respectfully concur in the result. Section 706 states, in full:

In order to receive a payment from the Underground Storage Tank 

Indemnification Fund, a claimant shall meet the following eligibility 

requirements:

(1) The claimant is the owner, operator or certified tank installer of the tank 

which is the subject of the claim.

(2) The current fee required under section 705 has been paid.

(3) The tank has been registered in accordance with the requirements of 

section 503.
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(4) The owner, operator or certified tank installer has obtained the 

appropriate permit or certification as required under sections 108, 501 and 

504.

(5) The claimant demonstrates to the satisfaction of the board that the 

release that is the subject of the claim occurred after the date established 

by the board for payment of the fee required by section 705(d).

(6) Additional eligibility requirements which the board may adopt by 

regulation.

35 P.S. § 6021.706.

Unlike the majority, I do not view prerequisites (2) or (5) as informing the 

interpretation of (3), which requires that the tank must have been registered in accordance 

with Section 503. Addressing (5) first, that provision compares the date of the release

with the “date established by the board for payment of the fee required by section 705(d).” 

35 P.S. § 6021.706(5). As such, 706(5) says nothing about when the fees are actually 

paid – whether late or on time. It is analogous to an insurance provision indicating that 

losses occurring before the coverage period will not be indemnified. In this instance, the 

coverage period begins on a date certain and continues until the tank is decommissioned. 

See infra note 1. Moreover, it would make little sense to impose on the claimant the 

burden of proving “to the satisfaction of the board” a fact already contained in the board’s 

own administrative records – namely, the date the fees were paid. Finally, reading 706(5) 

as a fee-payment requirement conflates it with 706(2). See Majority Op. at 32.

As for the phrase, “the date established by the board for payment of the fee,” that 

refers to either February 1, 1994, see 25 Pa. Code §§977.4 (defining property damage), 

977.33 (relating to fund coverage and exclusions); accord Brief for Appellant at 18 n.3, or 

perhaps some other date relating to the specific tank at issue if that tank came into 
[J-71-2022] [MO: Brobson, J.] - 3

existence thereafter.

1 Either way, as noted, it does not reflect a currency requirement in 

relation to the Section 705(d) capacity fees. It therefore cannot form the premise of an 

argument based on the precept expressio unius est exclusio alterius. See Majority Op. 

at 32 (citing Shrom v. Underground Storage Tank Indemnification Bd., 261 A.3d 1082,

1092 (Pa. Cmwlth. 2021)).

I am also skeptical requirement (2) is of use in the present inquiry. That provision 

indicates that, for benefits to be available, it is necessary that the “current” Section 705 

fee has been paid. Although it is tempting to view the word “current” as relating to the 

timing of the payment itself, even a late-paid fee can bring the account current. In other 

words, there is little difference between a requirement that the “fee” mandated by Section 

705 has been paid, and that the “current fee” mandated by Section 705 has been paid. 

By its terms, Section 705 already requires currency and it imposes interest and penalties 

for lateness. See 35 P.S. § 6021.705(e).

2 The word “current” describes the fee, not the 

time of payment.

3 Requirement (2) does not say when that “current fee” must have been

1 Some Commonwealth Court decisions have recognized the provision as referring to 

February 1, 1994. See, e.g., Se. Delco Sch. Dist. v. Underground Storage Tank 

Indemnification Bd., 708 A.2d 881, 881 & n.3 (Pa. Cmwlth. 1998); see also M.H. Davis 

Estate Oil Co. v. Underground Storage Tank Indemnification Bd., 789 A.2d 398, 400 (Pa. 

Cmwlth. 2001) (reciting an administrative finding that “February 1, 1994 [is] the date 

established by the Underground Storage Indemnification Board for the payment of fees 

required by section 705 of the Tank Act”).

The record is also replete with references to the same date. For example, the capacity 

fee invoice issued by the Fund in 2017 for the tanks in question lists several requirements 

for the recipient to be eligible for claim benefits. These include that “[t]he tank 

owner/operator can prove a release occurred on or after February 1,1994.” Invoice dated 

Dec. 5, 2017, at 2, reprinted in RR. 34a.

2 I realize we disfavor interpretations that render as surplusage even a single statutory 

word. In this instance, however, I believe the plain text of the Act requires it.

3 It is also possible the word “current” refers to the fact that Section 705 fees are regularly 

adjusted based on actuarial data. See 35 P.S. § 6021.705(d)(1), (2).
[J-71-2022] [MO: Brobson, J.] - 4

paid for the claimant to be eligible for benefits, just that it must have been paid. And it is 

notable that the English tense in both (2) and (3) is the same – “has been.” See Brief for 

Appellant at 18-19 (pointing out that “Section 706(2) requires . . . that the ‘current fee 

required under Section 705 has been paid’ just as Section 706(3) requires that the tank 

‘has been registered’” per Section 503) (bolding in original). Therefore, I would not rely 

on subsection (2) to suggest an inference that the fees required under subsection (3) can 

be paid late. If anything, the tense alignment in (2) and (3) suggests the reference point 

by which fees must be paid in both provisions is the same.

4

In light of the above, I would evaluate subsection (3) on its own terms, and I would 

ultimately find it materially ambiguous, as I believe it is susceptible of two reasonable 

interpretations. See generally JP Morgan Chase Bank v. Taggart, 203 A.3d 187, 194 

(Pa. 2019) (observing a statute is ambiguous when there are at least two reasonable 

interpretations). On the one hand, there is no dispute that tanks are required to be 

registered on an annual basis, see 35 P.S. § 6021.503; 25 Pa. Code §§ 245.42(g)

(requiring timely payment of fees), 245.704(a) (same), and it seems unlikely the General 

Assembly intended to allow for strategic behavior, whereby a claimant can elect not to 

pay a tank’s registration fees unless and until a release is discovered, and then obtain 

benefits by belatedly bringing the account current. See MH Davis v. Underground 

Storage Tank Indemnification Bd., 789 A.2d 398, 404 (Pa. Cmwlth. 2001) (“Such an 

4 To the extent the majority opinion may be construed to rely on MH Davis v. Underground 

Storage Tank Indemnification Board, 789 A.2d 398 (Pa. Cmwlth. 2001), for the position 

that Section 706(2) contains “clear and unambiguous language” requiring capacity-fee 

currency as of the time a release is discovered, Majority Op. at 32, I find such implication 

troubling, for two reasons. First, MH Davis did not employ a plain-text analysis but relied 

exclusively on policy considerations as expressed by this Court regarding a different 

statute. See MH Davis, 789 A.2d at 402-03 (quoting Dellenbaugh v. Pa. Med. Prof’l Liab.

Catastrophe Loss Fund, 756 A.2d 1172, 1174-75 (Pa. 2000)). More important, the issue 

of when 706(2) requires capacity-fee currency is not before this Court. Consequently, 

that issue should be left for another day.
[J-71-2022] [MO: Brobson, J.] - 5

outcome would countenance a situation where coverage is provided after loss is incurred 

and prior to payment of fees, allowing tank owners and operators to pay fees at their 

leisure.”). In this regard, the Fund’s reference to Bergey v. Foster, 604 A.2d 1209 (Pa. 

Cmwlth. 1992), is instructive. See Brief for Appellant at 16-17.

Bergey involved eligibility for Catastrophic Loss (CAT) Fund benefits under the 

Motor Vehicle Financial Responsibility Law, where eligibility was predicated on the 

vehicle’s being registered and the CAT Fund fee having been paid. The claimant was 

injured in an accident several months after his vehicle’s registration expired. He 

thereafter paid the overdue CAT Fund fee, renewed his registration, and sought benefits. 

The relevant portion of the Motor Vehicle Financial Responsibility Law defined an 

“ineligible claimant” as a “person who is the owner of a motor vehicle who has not 

complied with the registration requirements of Chapter 13 (relating to the registration of 

vehicles).” 75 Pa.C.S. § 1761(1) (repealed). As with Section 706(3) of the present Act, 

the statute in Bergey did not expressly state that such compliance had to be current at 

the time of the accident, but the reviewing court held that currency at that juncture was 

indeed a statutory prerequisite. Although Bergey is a decision by our intermediate court 

concerning a different statute, it does at least suggest the Fund’s interpretation of the 

legislation presently under review is not unreasonable.5

5 In this sense, I would not give any weight to Appellees’ argument that the Fund is 

attempting to enforce a de facto administrative regulation that was not promulgated via 

the ordinary procedure. I would find, rather, that the Fund seeks to enforce a reasonable 

interpretation of the statutory text itself – just not the only reasonable interpretation.

Separately, I differ with the majority’s suggestion that the Commonwealth Court’s decision 

in Luther P. Miller v. Underground Storage Tank Indemnification Board, 965 A.2d 398 

(Pa. Cmwlth. 2009), is distinguishable from this matter. See Majority Op. at 33. The 

Commonwealth’s Court’s proposed distinction was not based on any factual difference 

between the two cases, but on having rejected a different legal theory given by the tank 

owner. Identical facts led to a holding in Luther P. Miller that cannot be reconciled with 

the holding in this case. Accord Brief for Appellant at 25-26. I thus find unpersuasive the 

(continued...)
[J-71-2022] [MO: Brobson, J.] - 6

On the other hand, and as the majority develops, subsection (3) does not explicitly 

say tank registration fees must be current at the time the release is discovered in order 

for benefits to be available later on. See Majority Op. at 31-32. Further, the prefatory text 

indicates that “[i]n order to receive a payment from the Underground Storage Tank 

Indemnification Fund, a claimant shall meet” the eligibility requirements listed. 35 P.S. 

§ 6021.706. Because the temporal focus of this language is on the receipt of benefits, it 

can reasonably be understood as allowing for belated compliance so long as the Fund 

does not actually pay out any benefits until all six requirements are satisfied. It may also 

be observed that none of the Act’s enforcement provisions, see 35 P.S. §§ 6021.1301 -

6021.1315, indicates ineligibility for benefits is a consequence of late payment. Finally, 

the regulation relating to tanks not covered by the Fund does not include tanks for which 

the assessed fees were paid late. See 25 Pa. Code § 245.706.6

Given these competing interpretations, I would resolve the ambiguity consistent 

with the result arrived at by the majority. As the present dispute illustrates, there is no 

construction of the Act that can satisfy all legislative objectives. And while adopting the 

Fund’s interpretation would disincentivize strategic behavior, I believe the construction 

endorsed by the majority in service of protecting the public health and welfare advances 

weightier governmental interests, see generally Majority Op. at 2, 16, 30, consistent with

the General Assembly’s legislative findings, see 35 P.S. § 6021.201, and its directives 

relating to the interpretation of the enactment. See id. § 6021.109.

Commonwealth Court’s reason for not following its own precedent. Indeed, it seems to 

me untenable that a single statutory provision can have two opposite meanings – one 

meaning when the litigant advances a weak argument and overlooks a better one (as 

occurred in Luther P. Miller), and another meaning when the litigant thinks of a new, more 

convincing argument so as to prevail on the same facts.

6 These same regulations indicate failure to make timely payment of fees subjects the 

tank owner or operator to the enforcement provisions of the Act. See 25 Pa. Code 

§245.708. As explained, however, those provisions do not negate benefit eligibility.
[J-71-2022] [MO: Brobson, J.] - 7

Accordingly, I respectfully concur in the result.