United States: The Future Of Administrative Deference In Pennsylvania

As Justice Neil Gorsuch's confirmation hearings progressed in the early part of 2017, one of the most commonly discussed aspects of his legal background was his opposition to administrative deference. The legal profession will surely be watching to see whether the Supreme Court's long standing position "that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer" will remain intact. Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837 (1984).  However, administrative deference is not simply a federal issue, and Pennsylvania's view of the question is closely tied to the federal regime. 

Pennsylvania's Approach to Chevron's Two-Step Review Process

Chevron adopted what has come to be known as a two-step process of reviewing agency regulations (more on the difference between promulgated regulations and non-promulgated "interpretive rules" in a moment).  Step One asks whether the statute is either silent or ambiguous on the point in question.  If so, the court proceeds to Step Two and asks whether the agency's answer is based on a permissible construction of the statute.

Pennsylvania has never expressly adopted Chevron, Seeton v. Pa. Game Comm'n, 937 A.2d 1028 (Pa. 2007), but Pennsylvania courts' view of deference largely track federal precedent.  Indeed, the Supreme Court has recently noted "the ongoing transformation of the rules and/or standards concerning deference as they continue to evolve in the United States Supreme Court" and directed "the Commonwealth Court—as the intermediate court with specialized expertise in the administrative-law field—[to] remain abreast of the federal-law developments and analyze their merits relative to the Pennsylvania scheme in appropriate circumstances and in due course."  Northwestern Youth Servs. v. Commonwealth, Dep't of Pub. Welfare, 66 A.3d 301 (Pa. 2013).

As is true under Chevron Step One, before questions of administrative deference even come into play, the reviewing court must determine whether the statute is ambiguous.  If it is not, the agency's interpretation is accorded no deference at all.  SugarHouse HSP Gaming, LP v. Pa. Gaming Control Bd., 136 A.3d 457 (Pa. 2016); Seeton v. Pa. Game Comm'n, 937 A.2d 1028 (Pa. 2007).

Assuming ambiguity is found, the appropriate level of deference is tied to the type of administrative pronouncement under review.  A decade before Chevron was decided, in Pennsylvania Human Relations Comm'n v. Uniontown Area School Dist., 313 A.2d 156 (Pa. 1973), the Pennsylvania Supreme Court explained the difference "between the authority of a rule adopted by an agency pursuant to what is denominated by the textwriters as legislative rule-making power and the authority of a rule adopted pursuant to interpretative rule-making power."

For the former type of rules, courts are required to defer to the agency where the regulation is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable.  In making this decision, courts can only disregard the regulation if it is clearly erroneous, i.e., "so entirely at odds with fundamental principles . . . as to be the expression of a whim rather than an exercise of judgment."  This standard is generally consistent with Chevron Step Two, under which the rule must be upheld "unless it is arbitrary or capricious in substance, or manifestly contrary to the statute."  Northwestern Youth Servs. v. Commonwealth, Dep't of Pub. Welfare, 66 A.3d 301 (Pa. 2013).

An interpretative rule on the other hand depends for its validity not upon a law-making grant of power, but rather upon the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets.  Because the meaning of a statute is essentially a question of law for the court, to be viable, an interpretive rule must genuinely track the meaning of the underlying statute, rather than establish an extrinsic substantive standard.  Borough of Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741 (Pa. 1998).  The deference owed under this standard is based upon its "power to persuade," a standard adopted from the United States Supreme Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944).  Wirth v. Commonwealth, 95 A.3d 822 (Pa. 2014).  This is a more stringent review than Chevron Step Two, as the reviewing court may reject the interpretation if it finds that the interpretation is imprudent or inconsistent with legislative intent.

Recent Pennsylvania Jurisprudence on Administrative Deference

In late March, the Commonwealth Court had occasion to return to many of these issues in Snyder Brothers, Inc. v. Pennsylvania Public Utility Commission, No. 1043 C.D. 2015 (Pa. Cmwlth. Mar. 29, 2017) (en banc).  There, the Court addressed a challenge by an oil and gas producer to the Public Utility Commission's interpretation of the word "any" in Section 2302(f) of Act 13 of 2012.  The produced argued that "any" meant one; the Commission, relying upon its prior implementation orders, argued that "any" was ambiguous and, therefore, the Commission properly interpreted the word as meaning "every."

Applying the rule in Seeton, the Court first concluded that the statute was unambiguous and that, in context, the word "any" plainly meant one; as a result, the Court held that the Commission was entitled to no deference whatsoever.  The Court went on to address whether, assuming the statute was ambiguous, the Commission would nonetheless prevail based upon deference to its interpretation.  Because the Commission's position had not previously been articulated in an official rule and regulation, the Court applied the less-deferential standard applied to interpretive rules, and asked whether the Commission's interpretation had the power to persuade.  In deciding this question, the Court noted that the other factors of statutory construction weighed against the Commission's interpretation, that the Commission had not offered a convincing rationale why its interpretation was as reasonable as the petitioners' and that the Commission's interpretation of "any" appears to have conflicted with other Commission interpretations of the same phrase.  Based on these factors, the Court declined to accord the Commission's interpretation any deference.


Even before Justice Gorsuch's ascension to the United States Supreme Court, the Pennsylvania Supreme Court noted that there was an "ongoing transformation of the rules and/or standards concerning deference" in federal jurisprudence.  If the commentary following his nomination is any indication, Justice Gorsuch may well accelerate the speed and scope of this "transformation."  In light of the close link between federal and Pennsylvania law concerning deference, Pennsylvania appellate advocates can expect the issue of administrative deference to receive regular attention in the years to come, both in interpreting the impact of new decisions on federal law, and whether and how those new decisions will apply to Pennsylvania's administrative regime.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.