St. Elizabeth's Child Care Center v. Deparment of Public Welfare

Justice BAER,

concurring.

I join the majority’s holding that Article IX of the Public Welfare Code (Code), 62 P.S. §§ 901-922, grants the Department of Public Welfare (DPW) broad supervisory authority over children’s institutions, and that such authority reasonably can be interpreted to include the power to promulgate regulations requiring certification of nonprofit childcare centers. I write separately, and respectfully, however, to distance myself from that portion of the majority opinion that deferentially relies upon DPW’s interpretation of the Code to reach this conclusion. Nevertheless, based upon a review of the statutory language, I reach the same conclusion as that advocated by the DPW, and adopted by the majority.

As astutely recognized by the majority, Article IX of the Code authorizes DPW to make and enforce regulations for “visitation, examination, and inspection” of all supervised institutions, both “before and after the beginning of operation of the supervised facility.” 1 62 P.S. § 911(a)(1). It further directs DPW to visit and inspect such institutions at least once each year to examine various aspects of their operation, ranging from the “methods of instruction” to the “buildings, grounds, premises, and equipment,” as well as “all and every matter and thing relating to their usefulness, administration, and management....” Id. at § 911(a)(2). In the event DPW finds any condition to be “unlawful, unhygienic, or detrimental *141 to the proper maintenance and discipline” of the supervised institution, it has the power to “direct the officer or officers ... to correct the said objectionable condition in the manner and within the time specified by [DPW]....” Id. at § 911(c). While the term “certification” is not expressly employed, the very import of the statutory language clearly supports the determination that DPW has the power and duty to require supervised children’s institutions to comply with general health and safety regulations and to confirm or certify that each facility has, in fact, complied. 2 Thus, based solely on the statutory language, I would conclude that the Code grants DPW the authority to promulgate regulations requiring nonprofit childcare centers to obtain a certificate of compliance.

In reversing the Commonwealth Court’s holding to the contrary, the majority cites the proposition that “[t]he interpretation of a statute by those charged with its execution is entitled to great deference, and will not be overturned unless such construction is clearly erroneous.” Op. at 1277, citing Caso v. Workers’ Comp. Appeal Bd., 576 Pa. 287 , 839 A.2d 219, 221 (2003); 1 Pa.C.S. § 1921(c)(8). 3 It went on to afford deference to DPW’s interpretation of its enabling statute, finding that it was not clearly erroneous based on the statutory language cited at length, supra. Op. at 1277. In my view, judicial deference need not come into play under the circumstances presented. As this Court recognized in Seeton v. Pennsylvania Game Commission, 594 Pa. 563 , 937 A.2d 1028, 1037 (2007), “[w]hile an agency’s interpretation of an ambiguous statute it is charged with enforcing is entitled to deference, courts’ deference never comes into play when the statute is clear.”

*142 We further noted in Seeton that the United States Supreme Court recognized the dangers of deferring to an agency’s interpretation when such position was developed in anticipation of litigation. Id., citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 , 109 S.Ct. 468 , 102 L.Ed.2d 493 (1988) (providing that “[d]eference to what appears to be nothing more than an agency’s convenient litigation position would be entirely inappropriate.”). I recognize that in this case there is no indication that DPW enacted the regulation at issue in contemplation of the current lawsuit. Nevertheless, I am bothered generally by administrative bodies citing their own interpretations in blind support of positions they advocate in litigation. I would therefore reverse the Commonwealth Court’s decision based solely upon the statutory language of the Code, and save for another day the complex questions surrounding the deference afforded to agency regulations and litigation postures.

. Moreover, as the majority recognizes, DPW regulations that require certification of both for-profit and nonprofit child care centers have been in effect in some form since 1978, without any legislative declaration that nonprofit facilities are exempt from such requirement. Op. at 1278.

. The majority properly notes that a "children’s institution,” over which DPW has supervisory authority pursuant to 62 P.S. § 902(3), is defined as "any incorporated or unincorporated organization ... which may receive or care for children....” Id. at § 901.

. This provision states that "[w]hen the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: ... [[legislative and administrative interpretations of such statute.” 1 Pa.C.S. § 1921(c)(8).