interpretative rule in Pennsylvania

2023Dist., 313 A.2d 156, 169 (Pa. 1973) (“An interpretative rule … 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.”).

1979We believe that Regulation 34(B) (1) (b) was adopted pursuant to the Water Department’s interpretative rule-making power and, therefore, depends for its validity “upon the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets.” Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 77 , 313 A.2d 156, 169 (1973).

2024Servs., 67 A.3d at 154 (“If an interpretative rule or statement of policy functions as a regulation, then it will be nullified due to the agency’s failure to obey the processes applicable to the promulgation of a regulation.”); Borough of Bedford, 972 A.2d at 63 (“[I]f a statement of policy is actually an unpublished regulation in disguise, it will be nullified due to the agency’s failure to obey the processes applicable to a regulation.”).

2015See Transportation Services Inc. v. Underground Storage Tank Indemnification Board, 67 A.3d 142, 153 (Pa. Cmwlth. 2013) (stating “[i]f an interpretative rule or statement of policy functions as a regulation, then it will be nullified due to the agency’s failure to obey the processes applicable to the promulgation of a regulation”) (citations omitted).

2018While courts traditionally accord the interpretation of the agency charged with administration of the act some deference, the meaning of a statute is essentially a question of law for the court, and, when convinced that the interpretative regulation adopted by an administrative agency is unwise or violative of legislative intent, courts disregard the regulation ...." Commonwealth v. Gilmour Manufacturing Co. , 573 Pa. 143 , 822 A.2d 676 , 679 (2003) (quoting Girard School District v. Pittenger , 481 Pa. 91 , 392 A.2d 261 , 263 (1978) ).

2018While courts traditionally accord the interpretation of the agency charged with administration of the act some deference, the meaning of a statute is essentially a question of law for the court, and, when convinced that the interpretative regulation adopted by an administrative agency is unwise or violative of legislative intent, courts disregard the regulation ...." Commonwealth v. Gilmour Manufacturing Co. , 573 Pa. 143 , 822 A.2d 676 , 679 (2003) (quoting Girard School District v. Pittenger , 481 Pa. 91 , 392 A.2d 261 , 263 (1978) ).

2024Servs., Inc. v. Underground Storage Tank Indemnification Bd., 67 A.3d 142, 154 (Pa. Cmwlth. 2013) (citing Rushton Mining Co., 591 A.2d at 1171 ).

2021However, “[i]f an interpretative rule or statement of policy functions as a regulation, then it will be nullified due to the agency’s failure to obey the processes applicable to the promulgation of a regulation.” Id. (citing Department of Environmental Resources v. Rushton Mining Company, 591 A.2d 1168, 1171 (Pa. Cmwlth. 1991)).

2020“Generally, a legislative regulation establishes ‘a substantive rule creating a controlling standard of conduct.’” Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 712 A.2d 741, 743 (Pa. 1998) (quoting Slippery Rock Area School District v. Unemployment Compensation Board of Review, 983 A.2d 1231, 1236 (Pa. 2009)). 7 “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.” Popowsky, 910 A.2d at 53 .

2002See Borough of Pottstown, 712 A.2d at 743 .

2023Given the textual similarity between the two constitutional provisions, the Court held that the Fourth Amendment’s open fields doctrine, as enunciated by the U.S. Supreme Court in Oliver v. United States, 466 U.S. 170 (1984),3 applied equally 2 The interpretative doctrine of ejusdem generis refers to “the same kind or class.” Department of Environmental Protection v. Cumberland Coal Resources, LP, 102 A.3d 962, 976 (Pa. 2014).

2020“Generally, a legislative regulation establishes ‘a substantive rule creating a controlling standard of conduct.’” Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 712 A.2d 741, 743 (Pa. 1998) (quoting Slippery Rock Area School District v. Unemployment Compensation Board of Review, 983 A.2d 1231, 1236 (Pa. 2009)). 7 “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.” Popowsky, 910 A.2d at 53 .

2020As I have previously stated, “the Act conspicuously and correctly does not instruct courts to defer to agency interpretations (or to any other factor listed in section 1921(c)) when engaging in an interpretative analysis.” Harmon, 207 A.3d at 309 (Donohue, J., concurring).

2020Section 1928(b)(8) provides that “[p]rovisions enacted finally prior to September 1, 1937 which are in derogation of the common law[]” are to be “strictly construed.” 1 Pa.C.S. § 1928(b)(8); see Williams v. Meredith, 192 A.2d 924 , 925 (Pa. 1937) (“[T]he long- established principle of universal application is that statutes in derogation of the common law must be strictly construed.”); Null v. Staiger, 4 A.2d 883, 884 (Pa. 1939) (“we have … many times held that statutes in derogation of common law principles, … are subject to strict construction.”).

2007Id. .See also Tire Jockey Service, 591 Pa. at 106 , 915 A.2d at 1185 (finding that regulations of the Environmental Quality Board were legislative in nature because they were adopted under statutory duty to "adopt the rules, regulations, criteria and standards ... to carry out the provisions' of the [Solid Waste Management Act].'') (quoting 35 P.S. § 6018.105); Girard School District, 481 Pa. at 96 , 392 A.2d at 263 (finding legislative rule was adopted by State Board of Education pursuant to provi sion in Administrative Code of 1929 stating that Board "shall make all reasonable rules and regu

2007Id. .See also Tire Jockey Service, 591 Pa. at 106 , 915 A.2d at 1185 (finding that regulations of the Environmental Quality Board were legislative in nature because they were adopted under statutory duty to "adopt the rules, regulations, criteria and standards ... to carry out the provisions' of the [Solid Waste Management Act].'') (quoting 35 P.S. § 6018.105); Girard School District, 481 Pa. at 96 , 392 A.2d at 263 (finding legislative rule was adopted by State Board of Education pursuant to provi sion in Administrative Code of 1929 stating that Board "shall make all reasonable rules and regu

1979Accord, Pennsylvania Association of Life Underwriters v. Pennsylvania Department of Insurance, 29 Pa. Commonwealth Ct. 459 , 371 A.2d 564 (1977).

1979Accord, Pennsylvania Association of Life Underwriters v. Pennsylvania Department of Insurance, 29 Pa. Commonwealth Ct. 459 , 371 A.2d 564 (1977).