We granted discretionary review to consider, as a matter of first impression, whether Section 310.74(a) of the Insurance Department Act of 1921 (the Act), 40 P.S. §§ 1 - 326.7, prohibits a licensed insurance producer from charging fees in addition to commissions in non-commercial, i.e. personal, insurance transactions.

I. Background

Appellant Options Insurance Agency is owned by appellant Michael Woodford and both are licensed insurance producers that facilitate motor vehicle insurance contracts between insurance consumers and insurance carriers. Adjudication and Order, 6/21/2018 at ¶¶1-5, 8; see 40 P.S. § 310.1 (insurance producer is a "person that sells, solicits or negotiates contracts of insurance"). In June 2015, the Pennsylvania Insurance Department (the Department) began investigating appellants following a market conduct examination of a different insurance agency, and receipt of a consumer complaint concerning appellants' fee practices. During its investigation, the Department discovered that, between March 2011 and October 2015, appellants charged a non-refundable $60-$70 fee to customers seeking to purchase personal insurance products. Id . at ¶6. These fees were collected from the customers before appellants prepared the insurance policy applications. Id . at ¶7. One consumer complaint indicated appellants kept an "unrefundable broker application fee" when the consumer declined to buy a policy. N.T., 11/15/2017 at 300-01, 309. The Department's investigation also revealed appellants paid a "one-time" $50 referral fee to car dealership sales personnel when they referred their customers in need of insurance. Adjudication and Order, 6/21/2018 at ¶¶9-10.

Neither the Act nor the parties provide specific definitions of "personal" insurance, but it is apparent in this case that the subject personal insurance transactions involved individual drivers who sought insurance for their personal vehicles, rather than business consumers seeking insurance for a commercial vehicle.

The Department concluded appellants' fee practices included improper fees charged to consumers "for the completion of an application for a contract of insurance" and prohibited referral payments to the car dealerships. See 40 P.S. § 310.74(b) ("no insurance producer shall charge a fee for the completion of an application for a contract of insurance"); § 310.72(b)(2) (authorizing payment of certain limited referral fees). Accordingly, on November 2, 2016, the Department filed an Order to Show Cause with the Insurance Commissioner (the Commissioner) alleging appellants violated the Act when they paid referral fees to non-licensed individuals contingent on the sale of insurance, charged consumers a fee for completing insurance applications, and demonstrated unworthiness of licensure, acted unfairly and used fraudulent practices. Order to Show Cause, 11/2/2016, ¶¶10-29; see 40 P.S. § 310.11(20) (relating to general lack of fitness, competency or reliability); § 310.11(7) (prohibiting fraudulent, coercive or dishonest practices); § 310.11(6) (prohibiting "unfair insurance practice or fraud"). The Department requested that the Commissioner revoke appellants' insurance producer licenses, bar them from future licensure, or from applying to renew any license previously held in this Commonwealth, impose a civil penalty of $5,000 per violation, order appellants to cease and desist from violating the Act, order restitution for each of the illegal fees charged to insurance consumers, and impose any other conditions deemed appropriate, including supervision for a minimum five-year period should appellants become relicensed. Id ., citing 40 P.S. § 310.91(d) (penalty provision).

Section 310.72(b)(2) of the Act allows producers to pay: "a fee to a person that is not a licensee for referring to a licensee persons that are interested in purchasing insurance if the referring person does not discuss specific terms and conditions of a contract of insurance and, in the case of referrals for insurance that is primarily for personal, family or household use, the referring person receives no more than a one-time, nominal fee of a fixed dollar amount for each referral that does not depend on whether the referral results in a sale." 40 P.S. § 310.72(b)(2).

In an Answer and New Matter, appellants admitted they paid referral fees to automobile dealerships and charged "broker fees" to their customers, but maintained those fees did not violate the Act. Appellants also filed a Motion to Dismiss the Order to Show Cause, and provided an affidavit from Michael Woodford as evidentiary support. Woodford averred, with respect to fees paid to car dealerships, to his knowledge none of the salesmen ever "discuss specific terms or conditions of any insurance policy[,]" and appellants pay the referral fee "irrespective of whether a sale is consummated[.]" Affidavit of Michael William Woodford, 12/2/2016 at ¶¶8-10. Woodford further stated in his affidavit that appellants "charge[d] customers a broker's fee, which is also perfectly common throughout the Commonwealth[;]" the "fee is always fully disclosed in writing to and signed off on by all of our consumers, and rightfully earned for valuable insurance services rendered by Options[,]" specifically because appellants "work[ ] to identify carriers to best serve its customers' automobile insurance needs based on the individual circumstances presented with each account[;]" and that the fee "has nothing to do with the preparation or completion of any application for auto insurance[,] in fact, that task is handled by the insurance carriers that ultimately write the business." Id . at ¶¶12-14.

A. The Insurance Commissioner's Adjudication

Efforts to resolve the dispute amicably failed and, during a February 16, 2017 prehearing conference, the parties agreed to treat appellants' Motion to Dismiss as a Motion for Summary Judgment. On April 11, 2017, the Department finally filed an Answer to appellants' December 2016 Motion to Dismiss, supported by three affidavits from automobile dealer sales representatives who asserted appellants paid them improper referral fees. Appellants filed a Motion to Strike the Department's Answer as untimely. Following oral argument, the Commissioner granted appellants' Motion to Strike but denied summary judgment in their favor. The Commissioner reasoned appellants' motion was supported only by Woodford's affidavit and although his averments about the fees were uncontradicted, an evidentiary hearing was necessary to test the affiant's credibility. See Order Denying Motion for Summary Judgment, 7/31/2017 at 11, citing Borough of Nanty-Glo v. American Surety Co. of New York , 309 Pa. 236, 163 A. 523 (1932).

Prior to the hearing before the Commissioner, the Department amended its Order to Show Cause to include an allegation that the $60-$70 fees appellants charged consumers in non-commercial personal insurance transactions also violated Section 310.74(a) which permits a "fee in addition to a commission" only in commercial transactions. See Amendment to Order to Show Cause, 8/25/17 at 2. In response, appellants again admitted charging what they deemed "broker" fees, but asserted they were permissible in this context because Section 310.74(a) does not expressly prohibit a "fee in addition to a commission" in personal insurance transactions.

Section 310.74(a) of the Act specifically provides: "A licensee may charge a fee in addition to a commission to a person for the sale, solicitation or negotiation of a contract of insurance for commercial business. The fee charged by the licensee shall be disclosed in advance in writing to the person and shall be reasonable in relationship to the services provided." 40 P.S. § 310.74(a).

Appellants have never claimed the additional fee was a permissible "commission" — that term refers to payments made by insurance companies or licensed producers to other licensees and is clearly not at issue here. See 40 P.S. § 310.72(a) ("An insurance entity may pay a commission, brokerage fee, service fee or other compensation to a licensee for selling, soliciting or negotiating a contract of insurance. A licensee may pay a commission, brokerage fee, service fee or other compensation to a licensee for selling, soliciting or negotiating a contract of insurance.").

At the hearing, the Department's special investigator Michael Fissel testified appellants violated the Act because "the Department does not allow any fees to be charged in the context of personal insurance." N.T., 11/15/2017 at 302. He explained the Department had previously investigated agencies for charging "fee[s] in addition to [ ] commission[s]" in personal insurance transactions and it was currently investigating three to six others. Id . at 324, 348. The Department also presented Kelly Krakowski, chief of market conduct, property and casualty division, who testified the Department consistently maintained its position that "fee[s] in addition to [ ] commission[s]" in personal insurance transactions violated the Act. Id . at 428-29. Krakowski admitted she was unaware whether the Department ever issued guidance about this interpretation. Id . at 442. She further testified the Department was concerned about additional fees in personal insurance transactions because automobile insurance is compulsory and consumers could thus be unfairly forced to pay higher fees. Id . at 428-29.

Lambros Economides, General Counsel for Capitol Insurance, testified he wrote a letter following the Department's market conduct examination into Capitol and sent it to all of Capitol's insurance agents — including appellants — warning them generally against charging consumers additional fees, especially when those fees were not properly disclosed. N.T., 11/15/17 at 268-75. The Commissioner concluded the Department "approved" this letter as consistent with its position on additional fees. Adjudication and Order, 6/21/2018 at 21.

Finally, appellant Woodford testified, admitting he had previously lied to investigators about paying referral fees to the automobile dealers, because he did not want the Department's investigator "to go kick down doors flashing his badge[.]" Id . at 488-89, 498-99. Woodford otherwise testified consistent with his affidavit and reiterated that the non-refundable fees charged to his customers were "broker fees" rather than prohibited application fees. Id . at 480-86, 490-93, 503-10, 518.

In post-hearing briefing, the Department took the position that, since Section 310.74(a) expressly allows producers to charge fees in the commercial insurance context, it clearly, by omission, precludes those fees in the non-commercial insurance context. Department's Brief at Adjudication at 16-17, citing 40 P.S. § 310.74(a). Even if the statute were deemed ambiguous, however, the Department asserted its interpretation effectuated the intent of the General Assembly — "to protect insurance consumers from unscrupulous acts of insurance producers and licensees" charging fees in addition to a commission. Id . at 19 (internal quotations and citation omitted). The Department also argued its interpretation is based on the presumption the General Assembly intends to favor the public interest — by protecting consumers from unlimited fees — over the private pecuniary interest of insurance producers. Id . at 20, citing 1 Pa.C.S. § 1922(5). The Department emphasized appellants' interpretation would result in the absurd result, contrary to statutory construction principles set forth in 1 Pa.C.S. § 1922(1), of placing personal insurance transactions in the same category as commercial transactions despite the fact personal insurance consumers are less sophisticated than commercial consumers and deserve more protections. Id . at 21-22 & n.5, citing , e.g., 25 Pa. Bull. 35 (Sept. 2, 1995) (Insurance Department bulletin announcing "Deregulation of Commercial Lines Property and Casualty Forms"). The Department further claimed appellants' reading conflicts with Section 310.71(b) of the Act, which allows broker fees only when a producer acts as a broker and does not receive commissions. Id . at 22-23. Finally, the Department maintained the Commissioner should defer to its interpretation. Id . at 24-25.

Appellants argued the Act does not explicitly prohibit fees in addition to commissions, such as its claimed "broker fee," in personal insurance transactions. Appellants' Brief at Adjudication at 42-43. Appellants claimed Section 310.74(a) is a penal provision because its violation subjects them to fines and the possible revocation or suspension of their license, and thus must be strictly construed against the Department. Id . at 43, citing 1 Pa.C.S. § 1928(b)(1). Additionally, appellants asserted the Department's interpretation should not be afforded deference. Id . at 45-46.

The Commissioner first observed Section 310.74(a), which allows producers to charge fees "in addition to a commission" in commercial transactions, is ambiguous with respect to non-commercial transactions because it is subject to two reasonable interpretations as evidenced by the current dispute and the numerous investigations of other producers for charging fees like those charged by appellants. Adjudication and Order, 6/21/2018 at 18-19. The Commissioner considered the statute to be penal — and thus subject to strict construction — because violators are subject to fines and suspension or revocation of producer licenses. Id . at 21. The Commissioner concluded that "[c]ollecting additional fees for personal insurance transactions, other than legitimate broker fees that comply with [Section] 310.71(b), is prohibited by [ Section] 310.74(a)." Id . at 26. The Commissioner explained the Department's interpretation was entitled to deference because its "interpretation of the statute is reasonable and constitutes a valid protection of insureds against unlimited and undefined fees in the personal insurance business." Id . Ultimately, the Commissioner declined to penalize appellants for their past conduct that violated Section 310.74(a), emphasizing the statute was unclear and the Department had not provided clear notice of its interpretation, but the court imposed a cease and desist order applicable to future conduct. Id . at 21-22. In addition, the Commissioner imposed penalties for violations of other provisions of the Act, basing her decision in part on Woodford's lack of credibility.

The Commissioner relied on the Commonwealth Court's decision in Snyder Bros., Inc. v. Pa. PUC. , 157 A.3d 1018, 1029 (Pa. Cmwlth. 2017) (en banc ), for the proposition that a statute is penal when it results in civil penalties. This Court later reversed, holding the penalty provisions at issue in that case were simply intended to enforce remedial measures. Snyder Bros., Inc. v. Pa. PUC, 650 Pa. 49, 198 A.3d 1056, 1075 n.21 (2018).

The Commissioner ruled appellants violated the Act's prohibition on application fees based on appellants' own documents characterizing the $60-$70 fee as an "application" fee. Adjudication and Order, 6/21/2018 at 27. Accordingly, the Commissioner imposed a $5,000 fine for violations of Sections 310.74(b), 310.11(20), 310.11(6), and 310.11(7). In fashioning her penalty, the Commissioner expressly noted Woodford's dishonesty about not paying referral fees reflected negatively on his worthiness of licensure. Id .

B. The Commonwealth Court Appeal

Appellants filed a petition for review in the Commonwealth Court challenging both the Commissioner's order denying summary judgment and the Adjudication and Order ruling appellants violated Section 310.74(a) by charging fees in addition to commissions in non-commercial, personal insurance transactions. Woodford v. Pa. Ins. Dep't , 201 A.3d 899, 902 (Pa. Cmwlth. 2019). Appellants first argued the Commissioner erred when she denied summary judgment as the Department failed to timely answer the motion and thus did not identify any genuine issue of material fact. Id . at 903. The Department responded that the Commissioner was required to deny the motion for summary judgment because Woodford's affidavit was the only evidence in support of the motion. Id ., citing Nanty-Glo , 163 A. at 524 (court erred in granting a directed verdict based solely on oral testimony because credibility determinations must be left for the trier of fact). The Commonwealth Court concluded that " ‘because the purpose of the Nanty-Glo rule [is] to reserve questions of credibility for the jury, it [has] no application to an administrative proceeding in which the administrative law judge or administrative body serve[s] as the factfinder.’ " Id ., quoting Snyder v. Dep't of Envtl. Res. , 138 Pa.Cmwlth. 534, 588 A.2d 1001, 1004 (1991) (adopting the holding in Peoples Nat. Gas Co. v. Pa. PUC , 123 Pa.Cmwlth. 481, 554 A.2d 585 (1989) ). The court nevertheless determined appellants were not "automatically entitled to summary judgment" because "[e]ven in the absence of counter-affidavits, the moving party must still satisfy its burden of showing there are no genuine issues of material fact." Id . According to the panel, the Commissioner correctly determined appellants failed to satisfy that burden because "Woodford's credibility remained at issue" and "could only be tested in an evidentiary hearing[.]" Id . at 904.

Appellants also argued the Commissioner's Order was inconsistent because she "initially determined producers may charge fees in addition to commissions in personal/consumer transactions, but then contradicted that finding as applied to [appellants]." Id . The Commonwealth Court panel rejected this argument as meritless because "the Commissioner did not ... conclude that the Department may not construe the Act to prohibit [non-commercial] fees." Id . The panel opined the Commissioner correctly deferred to the Department's interpretation and expressly held " ‘[c]ollecting additional fees for personal insurance transactions, other than legitimate broker fees that comply with [Section 310.71(b)], is prohibited by [ Section 310.74(a) ].’ " Id ., quoting Adjudication and Order, 6/21/2018 at 26; see also id . at 902 n.3 (when case involves complex statutory scheme courts are wary to substitute their judgment for the expertise of an agency; "[s]tatutory and regulatory interpretations of a regulatory agency are accorded great deference"), citing Grimaud v. Pa. Ins. Dep't , 995 A.2d 391 (Pa. Cmwlth. 2010). The panel further noted the Commissioner's decision not to impose retroactive penalties "was reasonable in addressing an issue of first impression, especially where the evidence revealed confusion among producers and lack of express notice by the Department of its position concerning fees permitted under the Act." Id . at 904-05. The panel recognized the penalties imposed were "consistent with [the Commissioner's] analysis and conclusions concerning the fees permitted and prohibited by the act." Id . at 905.

The panel also rejected appellants' claim the Commissioner erred in ordering them to cease and desist from charging additional fees in personal insurance transactions because the Commissioner actually held the Act permits those fees. Id . The panel opined appellants "misconstrue[d] the Commissioner's decision" because after concluding Section 310.74(a) was ambiguous, she clearly deferred to the Department's interpretation that precludes appellants from charging "fee[s] in addition to [ ] commission[s]" in personal insurance transactions. Id . The panel upheld the Commissioner's cease and desist order and concluded the decision not to impose retroactive penalties did not undermine the ruling that collection of such fees in personal insurance transactions may not continue going forward. Id .

The Commonwealth Court addressed three other arguments not relevant to this appeal. See 201 A.3d at 906-07 (Commissioner's finding of a violation of Section 310.74(b) related to application fees was supported by substantial evidence); id . at 907 (affirming Commissioner's imposition of penalties relating to Sections 310.74(a) and 310.74(b) but reversing imposition of penalties relating to Section 310.72(b)(2) ); id. at 908-09 (Commissioner properly considered violations of Sections 310.11(7) (prohibiting fraudulent, coercive or dishonest practices) and (20) (relating to general lack of fitness, competency or reliability) in fashioning a penalty).

II. The Present Appeal

We granted appellants' petition for allowance of appeal to consider the following questions:

(1) With respect to a question of statutory construction that the Insurance Commissioner and the Commonwealth Court readily acknowledge was a "matter of first impression", did the Commonwealth Court Panel err when it afforded deference to the Insurance Department's interpretation of an ambiguous statute that was penal in nature instead of strictly construing the statute against the Insurance Department, as required by Pennsylvania Law?

(2) Does the Commonwealth Court Panel's holding conflict with other intermediate appellate court opinions in holding that [appellants] were not entitled to summary judgment notwithstanding the fact that the Insurance Department failed to reply to [appellants'] motion for summary judgment and failed to submit evidence to contradict a sworn affidavit submitted by [appellants]?

Woodford v. Pa. Ins. Dep't , ––– Pa. ––––, 217 A.3d 192 (2019) (per curiam ). In considering whether the Commonwealth Court erred, we are mindful that review of an administrative agency's adjudication and order "is limited to determining whether constitutional rights have been violated, an error of law has occurred, rules of administrative procedure have been violated, or the necessary findings of fact are not supported by substantial evidence." O'Rourke v. W.C.A.B. (Gartland) , 633 Pa. 422, 125 A.3d 1184, 1188 (2015), citing 2 Pa.C.S. § 704. We consider appellants' second question first, to determine whether appellants were entitled to summary judgment on procedural grounds at the agency level, before proceeding to analyze the relevant statutes.

A.

Appellants argue the Commissioner erred when she denied summary judgment in their favor after the Department failed to file a timely answer to their motion to dismiss. Appellants claim that since the Department failed to oppose Woodford's affidavit, which was the only evidence presented and which contradicted entirely the Department's factual allegations, there were no material issues of fact remaining, especially one regarding Woodford's credibility. Appellants claim the Nanty-Glo rule, which ordinarily precludes summary judgment based on affidavits alone, does not apply in agency proceedings like this one. See, e.g. , United Healthcare Benefits Tr. v. Ins. Comm'r of Pennsylvania , 152 Pa.Cmwlth. 549, 620 A.2d 81 (1993) (summary judgment in administrative proceeding properly granted where there was no dispute of material facts); Prop. Owners, Residents, and/or Taxpayers of Pleasant Valley Sch. Dist. v. Dep't of Cmty. Affairs , 122 Pa.Cmwlth. 612, 552 A.2d 769 (1989) (motion to dismiss properly granted where moving party's uncontradicted affidavit and non-moving party's failure to respond left no issue of material fact). Appellants contend the Commonwealth Court should have granted judgment in their favor because the Department failed to prove violations of the Act.

The Department argues appellants' reliance on United Healthcare and Pleasant Valley is misplaced because neither involved a situation where an issue of material fact remained or where credibility was at issue. Here, the Department asserts, appellants' motion for summary judgment was based entirely upon factual averments contained in Woodford's affidavit. The Department contends both lower tribunals correctly determined Woodford's credibility was at issue, thus precluding summary judgment. Department's Brief at 26 (material facts that could not be supported by Woodford's affidavit alone included "whether the referral fees were conditioned on the actual sale of an insurance contract[,]" "whether there were any discussions by the referring automobile salesperson of the specific terms and conditions of the insurance contracts[,]" and "whether the additional fees charged by [appellants] were related to the preparation or completion of an insurance application"). The Department asserts the Commonwealth Court correctly recognized an evidentiary hearing was required because " ‘[e]ven in the absence of counter-affidavits, the moving party must still satisfy its burden of showing that there are no genuine issues of material fact’ " and any doubts must be resolved in favor of the non-moving party. Id . at 27, quoting Woodford, 217 A.3d at 903. Finally, the Department emphasizes that even if the Nanty-Glo principle does not apply to the agency proceeding, the fact-finder need not blindly accept an uncontradicted affidavit when credibility is at issue and where the movant failed to carry the burden of proving a genuine issue of material fact does not exist.

In Nanty-Glo , the trial court entered a directed verdict in favor of the plaintiff based on the oral testimony of two witnesses. 163 A. at 524. The defendant had not presented any evidence contradicting the witnesses' testimony, but nevertheless argued on appeal a directed verdict was impermissible because their credibility must be left to the jury. Id . This Court agreed a directed verdict was improper under the circumstances:

However clear and indisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence. This rule is firmly established. The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury[.]

Id . (internal citations and quotations omitted). The Nanty-Glo rule is thus premised on the notion that credibility determinations must be left to the finder of fact. See Bailets v. Pennsylvania Turnpike Comm'n , 633 Pa. 1, 123 A.3d 300, 304 (2015) ; Penn Ctr. House, Inc. v. Hoffman , 520 Pa. 171, 553 A.2d 900 (1989) ; J. Palmer Lockhard, Summary Judgment in Pennsylvania: Time for Another Look At Credibility Issues , 35 DUQ. L. REV. 625, 629 (1997) ("The Nanty-Glo rule is apparently bottomed on two beliefs[,] ... [t]he first belief is that the determination of whether a witness is credible is a matter properly left to the finder of fact" and "[t]he second belief is the belief in the efficacy of cross-examination as a means of attacking the credibility of a witness.").

We have "consistently adhered to the Nanty-Glo rule" since 1932, Curran v. Philadelphia Newspapers, Inc. , 497 Pa. 163, 439 A.2d 652, 662 (1981), and we have also applied the rule to summary judgment motions based exclusively on oral testimony. See Bremmer v. Protected Home Mut. Life Ins. Co. , 436 Pa. 494, 260 A.2d 785, 786-87 (1970) (summary judgment not appropriate where the only evidence in support of summary judgment was oral deposition testimony of two witnesses). This common law rule is also referenced in our Rules of Civil Procedure. See Pa.R.C.P. 1035.2 Note ("Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact."), citing Nanty-Glo , supra , and Penn Ctr. , supra ; Pa.R.C.P. 1035.3(a)(1) Note ("If the moving party has supported the motion with oral testimony only, the response may raise the defense that there is a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial."), citing Nanty-Glo , supra , and Penn Ctr. , supra .

Here, the Commissioner applied Nanty-Glo to deny summary judgment in favor of appellants because they relied solely on Woodford's affidavit and his credibility was at issue. See Order, 7/31/2017 at 11. Although the Commonwealth Court ultimately affirmed the Commissioner's decision in relevant part, the panel declined to apply Nanty-Glo because it concluded the rule does not apply in administrative proceedings. Woodford , 201 A.3d at 903. The panel relied in part on Peoples Nat. Gas Co. , which held " Nanty-Glo has no application [to] ... an administrative proceeding wherein the ALJ serves as the fact finder." 554 A.2d at 589. The panel in Peoples provided no authoritative support for this holding, and in fact, that decision arose in the context of stipulated facts. See id . (subsequent to the court granting summary judgment, the parties held an evidentiary hearing and stipulated to facts which, according to the court, "establish[ed] the truth of [affiant]'s averments"); see also id . ("the testimony elicited during cross-examination of [the affiant] verifies the accuracy of the statements in the affidavit").

In any event, we cannot agree with the Commonwealth Court's conclusion that the Nanty-Glo rule has no place in the agency context, particularly in a case like this one where issues of material fact are purportedly resolved by untested statements in the moving party's affidavit; that the Insurance Commissioner was the factfinder in the present scenario does not mean an evidentiary hearing is precluded if there are questions of material fact at issue. Our focus should be trained instead on the purpose of summary judgment. See Penn Ctr. , 553 A.2d at 902 ("The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions.") (internal quotations and citation omitted). To that end, we recognize a motion for summary judgment is proper "only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Summers v. Certainteed Corp. , 606 Pa. 294, 997 A.2d 1152, 1159 (2010) (internal quotations and citation omitted); see also Penn Ctr. , 553 A.2d at 903 (a court "must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties"). When an issue of fact remains, the matter proceeds to trial, or in this case, to an evidentiary hearing and adjudication before the Commissioner. And we have long held a witness's credibility is "not [a] proper consideration[ ] at summary judgment; rather, such [a] determination[ ] reside[s] in the sole province of the trier of fact[.]" Summers , 997 A.2d at 1161.

Here, Woodford's affidavit was the lone evidentiary support for appellants' own motion for summary judgment. The affidavit directly refuted the Department's position appellants violated Sections 310.72(b)(2) and Section 310.74(b) by including material statements of fact pertaining to the challenged fees. See Affidavit of Michael William Woodford, 12/2/2016 at ¶¶8-10 (Appellants "pay[ ] referral fee[s] whether or not a sale is completed"); id . ¶15 (broker's fee is unrelated to the "preparation or completion of any application for auto insurance"). Under such circumstances, we find no error in the Commissioner's decision to proceed to a hearing before entering her order and adjudication. Moreover, notwithstanding its broad (and unnecessary) declaration that Nanty-Glo is inapplicable in administrative proceedings, the panel below also correctly recognized credibility questions precluded summary judgment in this case. See Woodford , 201 A.3d at 904 ("Because credibility could only be tested in an evidentiary hearing, the Commissioner declined to grant summary judgment based solely on Woodford's affidavit. We agree with the Commissioner's conclusion that genuine issues of material fact precluded summary judgment[.]"). Woodford's credibility was a material issue in the case as was amply demonstrated by his own testimony before the Commissioner. See N.T., 11/15/2017 at 488-89, 498-99 (Woodford lied about charging referral fees because he did not want Fissell "to go kick down doors flashing his badge").

We recognize Woodford's affidavit was uncontradicted because the Department failed to timely respond to appellants' motion to dismiss, which was ultimately treated as a motion for summary judgment. To the extent appellants take the position they were entitled to summary judgment on this basis, we note the Department was not required to respond at all. See Pa.R.C.P. 1035.3(d) ("[s]ummary judgment may be entered against a party who does not respond") (emphasis added). Appellants, as movants, had the burden of proving they were entitled to judgment as a matter of law and that no issues of material fact remained; the Commissioner could properly deny judgment in the absence of such proof. See, e.g. , Summers , 997 A.2d at 1159.
Additionally, appellants' reliance on United Healthcare and Property Owners is unavailing. In United Healthcare , the Commonwealth Court merely held that in the absence of issues of material fact, summary judgment is proper and no evidentiary hearing is required under administrative agency law. 620 A.2d at 83. In Property Owners , the Commonwealth Court upheld the administrative body's decision to grant a motion to dismiss supported by three affidavits where the non-moving party failed to respond or refute the facts contained in the affidavit, 552 A.2d at 772, but we are not bound by Commonwealth Court decisions. See, e.g., Tincher v. Omega Flex, Inc. , 628 Pa. 296, 104 A.3d 328, 394 (2014).

B.

We proceed to consider whether the Commonwealth Court erred in upholding the Commissioner's determination that appellants violated Section 310.74(a) when they charged their customers a "fee in addition to a commission" in non-commercial insurance transactions. Apparently conceding the statute is ambiguous, appellants first argue the panel should not have deferred to the Department's interpretation of Section 310.74(a) because the statute is penal and thus "must be strictly construed against, and without deference to, the Insurance Department[.]" Appellant's Brief at 19, citing 1 Pa.C.S. § 1928(b)(1) (penal provisions "shall be strictly construed"). Appellants assert the Commonwealth Court's reliance on Grimaud for the proposition that courts should defer to an agency's interpretation of complex statutory schemes is misplaced in this context because here, unlike Grimaud , the statute is penal. They emphasize that the penalties for violations are severe, such as suspension or revocation of licensure. Id . at 20 n.9, citing 40 P.S. § 310.91(d) (upon violation of the Act the Department may deny, suspend, refuse to renew or revoke a license, impose a penalty not exceeding $5,000 for each violation, issue a cease and desist order, and/or impose other conditions as the Commissioner deems appropriate). Appellants claim the panel erred by not even considering the rule of lenity which requires the statute be interpreted in their favor. According to appellants, any punishment for their alleged violations "cannot withstand scrutiny[.]" Id . at 22.

In support of this argument, appellants rely on the Commonwealth Court's decision in McGrath v. Bureau of Prof'l & Occupational Affairs, State Bd. of Nursing , 146 A.3d 310 (Pa. Cmwlth. 2016) (en banc ), where the en banc panel opined a statute that suspends or revokes licensure is penal in nature and must be strictly construed. Appellant's Brief at 20. Although we later affirmed the Commonwealth Court, we did not apply the rule of lenity. See McGrath v. Bureau of Prof'l & Occupational Affairs, State Bd. of Nursing , 643 Pa. 281, 173 A.3d 656, 664 n.14 (2017).

Initially, the Department asserts strict construction of Section 310.74(a) is not required because the provision is not penal in nature. The Department relies on Snyder Bros. for the proposition the Act's penalties are merely a means to enforce the statute's remedial purpose, i.e. , the protection of insurance consumers. Department's Brief at 12, citing Snyder Bros ., 198 A.3d at 1075 n.21. Here, the Department asserts Section 310.74(a) is intended to protect consumers by limiting the kind of fees that may legally be charged in personal insurance transactions. To the extent the rule of lenity is applicable to the statutory construction analysis, the Department argues it would apply to interpretation of the Act's penalty provisions rather than the substantive prohibitions of Section 310.74. The Department further argues that, despite appellants' contrary claims, the Commonwealth Court did acknowledge the rule of lenity by affirming the Commissioner's decision not to penalize appellants' past conduct due specifically to the lack of clarity of the statute's terms.

Appellants claim the Department waived this argument because they previously agreed that the statute was penal in nature. Appellants' Reply Brief at 1. As we determine infra, the penal/remedial nature of the statute ultimately is not dispositive.

Next, the Department argues the Commissioner and Commonwealth Court appropriately deferred to its interpretation that Section 310.74(a) authorizes "fee[s] in addition to [ ] commission[s]" in commercial insurance transactions but not in personal insurance transactions because it has expertise in enforcing and interpreting the Act's complex regulatory scheme. Id . at 16, citing 1 Pa.C.S. § 1921(c)(8) (General Assembly's intent can be ascertained by considering administrative agency's interpretation). The Department claims a court should refrain from deferring to the agency's interpretation only where that interpretation is clearly erroneous or frustrates the General Assembly's intent, which is not the case here because the Department's interpretation advances the legislature's objective of protecting "unsophisticated insurance consumers" from being "subject to unfettered fees[.]" Id . at 17.

Even if deference is unwarranted, the Department argues the rules of statutory construction support its interpretation of Section 310.74(a) as permitting "fee[s] in addition to [ ] commission[s]" only in commercial insurance transactions. The Department observes the General Assembly clearly omitted personal insurance transactions when it used language allowing the fees in "commercial" transactions. According to the Department, an interpretation of Section 310.74(a) that allows additional fees in the personal insurance context would violate the maxim expressio unius est exclusio alterius — the express mention of one thing implies the exclusion of others — and would require courts to insert words not contemplated by the legislature. The Department contends appellants' reading would lead to the absurd result of undermining the General Assembly's purpose of protecting ordinary consumers, who the Department views as less savvy than commercial insurance customers, from unscrupulous insurance producers and unfettered fees. The Department maintains its interpretation of Section 310.74(a) is the only one that effectuates the intent of the General Assembly and elevates the public interest over the private pecuniary interests of insurance producers. Id . at 23, citing 1 Pa.C.S. § 1922(5) (General Assembly intends to favor public interest against private interest). Finally, the Department observes its interpretation is in harmony with other provisions in the Act that prohibit insurance producers from collecting multiple fees without providing additional services. See id . at 24, citing 40 P.S. § 310.71(b) (permitting additional fees when an insurance producer is acting as a broker and does not receive a commission) and 40 P.S. § 310.74(b) (producers cannot collect application fees in addition to commission).

Appellants claim the Department makes this specific argument for the first time on appeal, suggesting it is waived. Appellants' Reply Brief at 1 n.2. However, the Department has consistently argued Section 310.74(a) explicitly permits additional fees in commercial transactions and implicitly prohibits those fees in personal insurance transactions. See Department's Brief at Adjudication at 19 ("[Section] 310.74 expressly allows [additional fees] to be charged only in connection with commercial insurance transactions, and implicitly prohibits them in non-commercial transactions.").

We begin our analysis by restating the pertinent statutory text. Section 310.74 of the Act provides:

(a) General Rule. --A licensee may charge a fee in addition to a commission to a person for the sale, solicitation or negotiation of a contract of insurance for commercial business. The fee charged by the licensee shall be disclosed in advance in writing to the person and shall be reasonable in relationship to the services provided.

(b) Application Fee. --Notwithstanding other provisions of this section, no insurance producer shall charge a fee for the completion of an application for a contract of insurance.

40 P.S. § 310.74. The Commissioner determined appellants violated this statute when they charged a $60-$70 fee to their customers seeking personal motor vehicle insurance, that is, non-commercial transactions. The Commissioner expressly held: "To the extent that any portion of the fee is related to the completion of an application," it violates Section 310.74(b). Adjudication and Order, 6/21/2018 at 27. Moreover, to the extent the fee constituted something other than an "application fee," the Commissioner acknowledged it would violate subsection (a) due to the non-commercial nature of the subject transactions. Id . at 26-27. The Commonwealth Court affirmed the Commissioner's reading of Section 310.74(a), and approved the penalties imposed on appellants, and we now must determine whether this was error.

The present appeal does not challenge the decisions below relating to the prohibition against application fees in Section 310.74(b).

Our interpretation of Section 310.74(a) is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991. The polestar in our quest is to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). We necessarily begin with the language of the statute which is "[t]he first and best indication of legislative intent." Matter of Private Sale of Prop. by Millcreek Twp. Sch. Dist. , 646 Pa. 339, 185 A.3d 282, 290-91 (2018). When the plain language is clear and unambiguous we must not disregard it in pursuit of the law's spirit. 1 Pa.C.S. § 1921(b). When the text of the statute is ambiguous, then — and only then — do we advance beyond its plain language and look to other considerations to discern the General Assembly's intent. A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 903 (2016). Courts may resolve an ambiguity by considering the following factors: 1) the occasion and necessity for the statute; 2) the circumstances under which it was enacted; 3) the mischief to be remedied; 4) the object to be attained; 5) the former law, if any, including other statutes upon the same or similar subjects; 6) the consequences of a particular interpretation; 7) the contemporaneous legislative history; and 8) legislative and administrative interpretations of such statute. 1 Pa.C.S. § 1921(c). We are also mindful that "the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable" and "the General Assembly intends to favor the public interest as against any private interest." 1 Pa.C.S. § 1922(1), (5).

As stated, Section 310.74(a) expressly allows licensed insurance producers — such as appellants — to "charge a fee in addition to a commission to a person for the sale, solicitation or negotiation of a contract of insurance for commercial business." 40 P.S. § 310.74(a). Although the statute explicitly refers to "commercial business," it does not specify whether these fees in addition to commission may be charged for non-commercial transactions, which are at issue here, except that application fees are expressly precluded in all circumstances under subsection (b). The Department asserts that because Section 310.74(a) explicitly permits additional fees in commercial insurance transactions, it implicitly prohibits those fees in personal insurance transactions. Appellants contend subsection (a) permits additional fees in personal insurance transactions because it does not explicitly prohibit them. See also Adjudication and Order, 6/21/2018 at 18-19 (holding subsection (a) open to more than one reasonable interpretation based on evidence Department was investigating other agencies for charging a fee in addition to a commission in consumer transactions). In this sense, subsection (a) is at least plausibly subject to multiple interpretations of its text. See, e.g., Trust Under Agreement of Taylor , 640 Pa. 629, 164 A.3d 1147, 1155-56 (2017) (ambiguity exists where there are at least two reasonable interpretations of relevant text).

Guided by the aforementioned principles of statutory interpretation, including the Statutory Construction Act, we are ultimately persuaded the lower tribunals did not err in their finding appellants violated Section 310.74(a). First, we consider the purpose of the Act generally. See 1 Pa.C.S. § 1921(c)(1)-(4). Although the General Assembly did not expressly define the statute's purpose, we note the Commissioner considers the Act to have the dual purpose of protecting both buyers and sellers of insurance through a comprehensive scheme that includes protections for insurance consumers as well as clear guidelines for entities that sell insurance. See Adjudication and Order, 6/21/18 at 20.

Next, we observe that, although Section 310.74(a) states "[a] licensee may charge a fee in addition to a commission to a person for the sale, solicitation or negotiation of a contract of insurance for commercial business [,]" 40 P.S. § 310.74(a) (emphasis added), it does not state similar fees may be charged in personal insurance transactions. The determination such fees may thus not be charged in non-commercial transactions is consistent with the maxim expressio unius est exclusio alterius , such that "the inclusion of a specific matter in a statute implies the exclusion of other matters." Thompson v. Thompson , ––– Pa. ––––, 223 A.3d 1272, 1277 (2020) (internal citation and quotation omitted); see also id . (" ‘although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say’ "), quoting Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co. , 567 Pa. 514, 788 A.2d 955, 962 (2001).

We may also consider the potential consequences of the proffered interpretations, 1 Pa.C.S. § 1921(c)(6), and in doing so we note the natural result of the Department's interpretation gives meaning to the General Assembly's specific inclusion of "commercial business," while avoiding the improper insertion of words the legislature saw fit not to include. Appellants, by contrast, would have us rewrite the statute to say licensees may charge fees in addition to commissions for selling insurance for "commercial and personal business," and this we may not do. See Commonwealth v. Derhammer , 643 Pa. 391, 173 A.3d 723, 729 (2017) (courts are not authorized to insert words into statutes).

A reading of Section 310.74(a) that prohibits additional fees in non-commercial insurance transactions is further bolstered by its consistency with the apparent purpose of the Act. The General Assembly specifically allowed extra fees in "commercial business" transactions in Section 310.74(a) and thus provides clear guidance to insurance producers. And, the language of subsection (a) also reflects the apparent legislative goal of protecting ordinary insurance consumers (as opposed to business entities) from extra fees. The statutory scheme, when considered as a whole, recognizes that licensed producers may receive commissions from the insurance carrier, see 40 P.S. § 310.72, and therefore need not receive additional fees from non-business customers. Moreover, with respect to non-commercial insurance transactions, the Act does allow a "broker fee," but only if the producer complies with the procedures outlined in a completely separate statute, and appellants do not claim they complied with those requirements, despite occasionally referring to the $60-$70 fee as a "broker fee." See 40 P.S. § 310.71(b) (producer acting as a broker must execute a written agreement delineating the services to be provided and disclosing fees paid to the producer by the consumer). Again, viewing the statutory scheme as a whole, this broker fee is permitted in certain circumstances where the producer represents the consumer without receiving a commission from the insurance carrier. In this context, Section 310.74(a) strikes a balance consistent with the Act's dual purpose by barring producers from double dipping on fees and limiting the costs imposed on personal insurance consumers.

Our reading is not undermined by appellants' claim that Section 310.74(a) should be construed in their favor and against the Department because it is a penal, rather than a remedial, statute. First, we note Section 310.74 is aimed at describing the fees that may (and may not) be charged by insurance producers, and is at least partly intended to protect consumers from improper fees. In addition, we recognize the penalties for violations of the Act are enabled by a separate statute. See, e.g. , 40 P.S. § 310.91(d) (describing penalties to be imposed for violations). We thus agree with the Department that the Act's penalties provide the means to enforce one remedial purpose of Section 310.74, i.e. , the protection of insurance consumers. See Snyder Bros ., 198 A.3d at 1075 n.21 ("The penalty provisions [of the applicable statute] are imposed only if a [natural gas] producer fails to pay the required [fee]. Inasmuch as the chief purpose of the [fee] provisions of [the statute] is to help municipalities offset the adverse effects of the production of natural gas ... these provisions are remedial in nature. Because the separate penalty provisions are merely the means by which these remedial measures are enforced, strict construction of the [fee] provisions is not required."). Accordingly, to the extent the rule of lenity is applicable in a statutory construction analysis, it would apply to an interpretation of the Act's penalty provisions, rather than subsection (a) which is at issue here.

Appellant's reliance on McGrath , supra , for the opposite proposition is misplaced. As explained supra at footnote 10, we affirmed the Commonwealth Court in that case by utilizing other tools of statutory construction, without applying the rule of lenity. McGrath , 173 A.3d at 664 n.14.

As Justice Todd recognizes, " ‘there is no impropriety in putting a literal construction on a penal clause, and a liberal construction on a remedial clause in the same statute.’ " Concurring and Dissenting Op. at ––––, quoting Verona v. Schenley Farms Co. , 312 Pa. 57, 167 A. 317, 320 (1933) (internal quotations omitted). But we must strictly construe only the penal provisions in a statute. 1 Pa.C.S. § 1928(b)(1). See Com., by Creamer v. Monumental Props., Inc. , 459 Pa. 450, 329 A.2d 812, 817 (1974) (logically flawed to conclude entire statute is penal if it contains penal provision). Our conclusion maintains this balance by considering Section 310.74, a remedial provision, separately from Section 310.91, the penal provision designed to enforce it. To the extent Justice Todd concludes Section 310.74 should be construed strictly because it "prohibit[s] or limit[s] particular insurance sales practices[,]" Concurring and Dissenting Op. at ––––, we emphasize that Section 310.74 shields consumers — both commercial and non-commercial — from improper fees, and in this way is every bit as remedial as the statute at issue in Snyder Bros . But see id . at –––– n.2 (asserting section 310.74 "stands in marked contrast to the provisions at issue in Snyder Brothers ").

Along those lines, Justice Story, writing for the United States Supreme Court, noted:

In one sense, every law imposing a penalty or a forfeiture may be deemed a penal law; in another sense, such laws are deemed, and truly deserve to be called, remedial. The judge was therefore strictly accurate, when he stated that "It must not be understood that every law which imposes a penalty is, therefore, legally speaking, a penal law, that is, a law which is to be construed with great strictness in favor of the defendant. Laws enacted for the prevention of fraud, for the suppression of public wrong, or to effect a public good, are not in the strict sense, penal acts, although they may inflict a penalty for violating them."

Taylor v. United States , 44 U.S. 197, 210, 3 How. 197, 11 L.Ed. 559 (1844).

Moreover, even without applying the rule of lenity, our canons of statutory construction have brought us to an interpretation consistent with the General Assembly's intent. Cf. Yates v. United States , 574 U.S. 528, 547-48, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) ("Finally, if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of [the term at issue], as [it] is used in [the statute], we would invoke" the rule of lenity.); McGrath , 173 A.3d at 666-68 (Wecht, J., concurring) (application of rule of lenity proper when "faced with a set of statutory provisions that so stubbornly defy harmonization" and where one party's interpretation would have the Court add a word to the statute, while the other party would have the Court remove a word).

Finally, we consider the Department's own interpretation of Section 310.74(a), which limits the authorized "fee in addition to a commission" to commercial business only. It is clear the Commonwealth Court relied at least in part on the Department's position. See 1 Pa.C.S. § 1921(8) (court may consider administrative interpretations of ambiguous statute to discern its meaning); see also Woodford , 201 A.3d at 902 n.3 ("Statutory and regulatory interpretations of a regulatory agency are accorded great deference."). We need not determine whether the agency's interpretation is entitled to special deference, however, because the foregoing textual analysis reveals the Department's reading aligns with our own conclusions regarding the statute's meaning. Cf. GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless Steel USA, LLC , ––– U.S. ––––, 140 S.Ct. 1637, 1647, 207 L.Ed.2d 1 (2020) ("Our textual analysis aligns with the Executive's interpretation so there is no need to determine whether the Executive's understanding is entitled to ‘weight’ or ‘deference.’ "), citing Edelman v. Lynchburg Coll. , 535 U.S. 106, 114-15, n.8, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002) ("[T]here is no need to resolve deference issues when there is no need for deference.").

As these precedents make clear, it is not necessary to engage the Commonwealth Court's discussion of agency deference, and so we have not improperly avoided what Justice Donohue considers the "primary reason" we allowed appeal. Concurring Op. (Donohue, J.) at ––––. We simply decline to issue an advisory opinion on a non-dispositive question.

III. Conclusion

Accordingly, we hold the lower tribunals did not err when they determined Section 310.74(a) of the Act did not authorize appellants to charge the $60-$70 non-refundable fee to their customers seeking to purchase personal motor vehicle insurance. We therefore affirm the Commonwealth Court's decision upholding the Commissioner's Adjudication and Order.

Chief Justice Saylor and Justices Baer and Mundy join the opinion.

Justice Donohue files a concurring opinion.

Justice Wecht files a concurring opinion in which Justice Donohue joins.

Justice Todd files a concurring and dissenting opinion.

JUSTICE DONOHUE, concurring

A section of the Insurance Department Act ("Act"), 40 P.S. §§ 1 - 326.7, permits insurance producers like Appellants to charge a fee in addition to a commission "for the sale, solicitation or negotiation of a contract of insurance for commercial business." 40 P.S. § 310.74(a). I concur in the result reached by the Majority and join Justice Wecht's concurring opinion that the plain text unambiguously precludes Appellants from charging a fee to private consumers. I write separately, however, because neither the Majority nor Justice Wecht address the first question on which we granted review, namely, whether the Commonwealth Court erred by deferring to the agency's legal analysis of the meaning of 40 P.S. § 310.74(a). We granted review to address whether the Commonwealth Court erred "when it afforded deference to the Insurance Department's interpretation of an ambiguous statute that was penal in nature instead of strictly construing the statute against the Insurance Department, as required by Pennsylvania law?" Woodford v. Pennsylvania Ins. Dep't , ––– Pa. ––––, 217 A.3d 192 (2019). In lieu of addressing whether the panel appropriately deferred to the agency's interpretation, the Majority leaves for another day whether a court may afford "special deference," Majority Op. at ––––, to a non-judicial body's interpretation of a statute.

40 P.S. §§ 1 -326.7, Act of May 17, 1921, P.L. 789.

See 40 P.S. §§ 1 -326.7.

In this regard, I am unpersuaded by the assertion in Justice Wecht's Concurring Opinion that, because the Act is part of a comprehensive regulatory scheme, this fact counsels against a finding of ambiguity as to this particular portion of the Act. See Concurring Opinion, Wecht J. at –––– ("[T]he Act is a comprehensive regulatory scheme that clearly begins with the assumption that insurance producers can do nothing, and then proceeds to authorize only certain activities. Given this structure, we should assume that any practices the General Assembly did not explicitly authorize were intentionally disallowed. To hold otherwise would needlessly inject ambiguity throughout the Act."). A judicial assessment of a particular statute's ambiguity by necessity is confined to an examination of the actual statutory language at issue in the case under review, and evaluation of the reasonableness of the parties' competing suggested interpretations thereof. Merely because our Court, or any court, determines that one portion of a comprehensive statutory scheme is ambiguous does not, ipso facto , inject ambiguity into other portions of the overall statutory scheme that statute is part of, as the concurrence suggests. Compare, e.g. , Chamberlain v. Unemployment Compensation Board of Review , 631 Pa. 489, 114 A.3d 385, 394–95 (2015) (engaging in statutory construction to discern the meaning of the term "incarceration" as used in the Unemployment Compensation Law because it was reasonably susceptible of two different meanings) with A Special Touch v. Department of Labor and Industry , ––– Pa. ––––, 228 A.3d 489 (2020) (finding that the phrase "customarily engaged," as used in the Unemployment Compensation Law was unambiguous and defining the phrase in accordance with its plain meaning). Thus, each provision of the Act ought to be evaluated according to its own terms.
Moreover, when a statute is silent as to its application to particular factual circumstances and does not directly address whether it can be applied to legal questions arising from such situations, as Section 310.74 is with respect to the question of whether licensed insurance producers can charge fees in addition to commissions for non-commercial insurance transactions, our Court has heretofore regarded such silence as a form of ambiguity requiring resort to the tools of statutory construction, which included consideration of the reasonableness of the interpretation of the statute by the administrative agency tasked with effectuating and enforcing that law. See, e.g. , Powell v. Housing Authority of City of Pittsburgh , 571 Pa. 552, 812 A.2d 1201 (2002) (because Congress, in enacting Section 8 of the United States Housing Act, did not speak to the question of whether a public housing authority may lawfully terminate the lease of a public housing tenant if a member of the tenant's household or guest engages in drug related activity without the tenant's actual or reasonable knowledge, examination of other factors to discern Congress's intent, including the interpretation of the agency responsible for implementing the Housing Act, was warranted). I therefore find the majority's conclusion that Section 310.74 is ambiguous to be amply supported.

This part of the Act was added by Act of December 6, 2002, P.L. 1183, and is codified as Section 674-A within the Act.

See Maj. Op. at –––– – ––––.

This statutory provision stands in marked contrast to the provisions at issue in Snyder Brothers which our Court determined had, as their primary objective, a remedial purpose — compensating municipalities for the deleterious impacts of oil and gas drilling activities. See 198 A.3d at 1075 n.21 ("Inasmuch as the chief purpose of the impact fee provisions of Chapter 23 is to help municipalities offset the adverse effects of the production of natural gas from unconventional wells within their borders, these provisions are remedial in nature. Because the separate penalty provisions are merely the means by which these remedial measures are enforced, strict construction of the impact fee provisions is not required."). Hence, unlike in the case at bar, the penalties for violations of the impact fee provisions in Snyder Brothers served only to further that primary remedial purpose.

The Majority contends that this discussion is unwarranted and "decline[s] to issue an advisory opinion on a non-dispositive question." Majority Op. at –––– n.17. Respectfully, the deference issue is non-dispositive only because the Majority has assiduously avoided discussing the process by which the Commonwealth Court analyzed the statutory language.
The Majority finds support in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless Steel USA, LLC , ––– U.S. ––––, 140 S.Ct. 1637, 1647, 207 L.Ed.2d 1 (2020) (citing Edelman v. Lynchburg Coll. , 535 U.S. 106, 114-15 n.8, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002) ). According to the Majority, these "precedents make clear" that discussing deference is unnecessary. Id .
I respectfully disagree. In the GE Energy Power case, the Court examined the plain language meaning of a treaty, and observed that "We have never provided a full explanation of the basis for our practice of giving weight to the Executive's interpretation of a treaty." 140 S. Ct. at 1647. Here, we are not dealing with deference to the executive branch. And in Edelman , the United States Supreme Court granted review to determine whether an agency's interpretation of a statute contradicted the plain text. Notably, the intermediate appellate court, unlike the Commonwealth Court here, properly examined the plain language for itself. See Edelman v. Lynchburg Coll. , 228 F.3d 503, 508 (4th Cir. 2000), rev'd , 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002) ("Having concluded that application of the ... regulation in this case contravenes Congress's intent, as expressed through the plain language of the statute, we need not proceed further. Step two of the Chevron analysis does not come into play, and we do not apply the ... regulation."). The High Court disagreed with the Court of Appeals regarding the plain language analysis, and the Edelman footnote cited by the Majority was appended to its observation that the agency's position was one "we would adopt even if there were no formal rule and we were interpreting the statute from scratch. Because we so clearly agree with the [agency], there is no occasion to defer and no point in asking what kind of deference, or how much." Edelman v. Lynchburg Coll. , 535 U.S. at 114, 122 S.Ct. 1145 (2002) (footnote omitted).
Edelman therefore offers no support for the Majority's avoiding the issue on which we granted review. Unlike the Commonwealth Court here, the intermediate appellate court in Edelman properly analyzed the plain language before deference was even considered. The language cited by the Majority simply reflected that any deference owed to the underlying agency view became irrelevant in light of its plain language analysis. In contrast, we accepted review to ask whether the Commonwealth Court erred in deferring to the agency.

See Brief for Woodford at 18-21; Brief for Department at 18-25.

In my view, the primary reason for this Court's grant of discretionary review was to address the Commonwealth Court's mode of analysis, which involves a broader question of law that extends beyond the instant dispute of what the plain text of 40 P.S. § 310.74(a) means. While the statutory issue of first impression we have resolved is among the reasons warranting discretionary review, absent the additional layer of whether the Commonwealth Court erred in its deferential approach I question whether our intervention would otherwise have been warranted. As to the broader issue, the Commonwealth Court, when faced with whether and when deference to an agency interpretation is appropriate in a future case, will surely continue to follow its law on that point. I would address that issue as contemplated by our allocatur grant and conclude that the Commonwealth Court's methodology is incompatible with foundational Pennsylvania law on determining the meaning of an enactment of our General Assembly.

I.

Reviewing courts cannot defer to an agency's view that a statute is ambiguous

To begin, the Commonwealth Court's error goes beyond the question of whether a court must afford "special deference" to an agency's view of what a statute means as a matter of law. Here, the Commonwealth Court deferred to the agency's determination that the statute was ambiguous.

The notion of "special deference" is taken from the United States Supreme Court's decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Chevron Court established a two-step approach when courts review statutory interpretations conducted by federal agencies.

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id . at 842–43, 104 S.Ct. 2778 (footnotes omitted).

Whether deference to an administrative agency is warranted when a statute is ambiguous has generated significant disagreement amongst members of the Court, as later discussed. Notwithstanding, an analysis of the Commonwealth Court's opinion illustrates that its approach in these matters is even more deferential than Chevron because it merged the two steps. That is, the panel did not first examine the statutory language to determine if there is an actual ambiguity. Instead, the court deferred to the agency's view that an ambiguity existed.

I therefore respectfully disagree with Justice Wecht's conclusion that the Commonwealth Court's deference to the Department is "entirely moot." Concurring Op. at ––––. The Commonwealth Court did not analyze whether an ambiguity existed and, absent correction from this Court, will continue to apply a standard of review that I submit is contrary to law.

See Antonin Scalia & Bryan Garner, Reading Law: the Interpretation of Legal Texts 93 (1st ed. 2012) ("Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est ). That is, a matter not covered is to be treated as not covered.").

As indicated by the Commonwealth Court's opinion, individuals within the agency initially found that the statutory language unambiguously precluded producers like appellant from charging fees to private consumers. "The Department takes the position that the specific authorization of fees for commercial business implicitly but clearly precludes such fees for consumers." Woodford , 201 A.3d at 904. However, the Commissioner, the head of the Department, disagreed with the Department's position. Id . The Commissioner reached this result by applying statutory construction principles. "Applying rules of statutory construction, the Commissioner determined the Act did not clearly prohibit charging fees to consumers in addition to commissions[.]" Id . at 904. Notwithstanding, the Commissioner ultimately opted to resolve this conflict by deferring to the views of the agency staff that the statute was unambiguous. Id . (explaining that the Commissioner "accord[ed] deference to the Department's construction of the Act"). The Commonwealth Court, in turn, deferred to that view as a reasonable interpretation of the statutory text, in part because the Commissioner declined to penalize Appellants for their past practices. "Instead, the Commissioner directed only that [Appellants] cease imposing such fees in the future. This limited directive was reasonable in addressing an issue of first impression. ..." Id . at 904-05.

A court cannot defer to an agency's view that a statute is ambiguous, and by doing so it abdicates the judiciary's duty to say what the law is. Obviously, an agency could circumvent otherwise clear statutory language by simply declaring that an ambiguity existed, expecting a reviewing court to reflexively adopt the same view. It is for the court, and not for the agency, to decide in the first instance if the relevant language is actually ambiguous. The Commonwealth Court's failure to examine the language contradicted the teaching of Chevron itself, as the panel did not engage in any analysis whatsoever to determine whether the term "commercial business" was ambiguous. What the Commonwealth Court found was that the term was ambiguous because the agency thought it was ambiguous (despite the internal division within the agency on that point). No such deference is permitted by Chevron .

The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.

Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778.

The Commonwealth Court could not accept the agency's interpretation, no matter how reasonable, if that interpretation conflicted with clear legislative intent. In fact, this principle is not limited to agency interpretations of a statute but extends to an agency's reading of its own regulations. See Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019) (plurality) ("But if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense."). Then, and only then, does a court proceed to determine whether the agency's determination is worthy of deference. Id . ("If genuine ambiguity remains , moreover, the agency's reading must still be ‘reasonable’.") (emphasis added). It is therefore clear that the Commonwealth Court erred by failing to address the question of whether an ambiguity actually existed. See also Harmon v. Unemployment Comp. Bd. of Review , 652 Pa. 23, 207 A.3d 292 (2019) (first determining that the statute "is thus obviously susceptible to two or more reasonable interpretations and as such it is ambiguous" before discussing agency deference) (quotation marks and citation omitted).

The only discernible justification for applying a broad level of deference comes from the Commonwealth Court's recitation of the standard of review. The panel stated, "In addition, in a case involving a complex statutory scheme, courts exercise greater caution in substituting their discretion for the expertise of the Commissioner, acting as the agency head of the Department. Statutory and regulatory interpretations of a regulatory agency are accorded great deference." Id . at 902 n.3 (citing Grimaud v. Pa. Ins. Dep't , 995 A.2d 391 (Pa. Commw. 2010) ). In Grimaud , the Commonwealth Court similarly observed in a footnote that "because this case involves a statutory scheme that is complex, we must exercise greater caution in substituting our discretion for the expertise of the Commissioner, acting as the agency head of the Pennsylvania Insurance Department." Grimaud , 995 A.2d at 400 n.8 (citing Graduate Health Sys., Inc. v. Pennsylvania Ins. Dep't , 674 A.2d 367, 370 (Pa. Commw. 1996) ). These cited cases make clear that the Commonwealth Court believes that it should generally defer to an agency when the statutory scheme is complex, without accounting for the various permutations in which said deference can occur. A couple of examples will suffice. For instance, the Graduate Health case cited Carlson Mining Company v. Department of Environmental Resources, 163 Pa.Cmwlth. 141, 639 A.2d 1332 (1994), for the proposition that "[s]tatutory and regulatory interpretations of a regulatory agency should be accorded great deference." Graduate Health also cited Nationwide Mutual Insurance Co. v. Foster, 143 Pa.Cmwlth. 433, 599 A.2d 267 (1991), for the point of law that "[w]here the statutory scheme is complex, the reviewing court must be even more cautious in substituting its discretion for the expertise of an administrative agency." Foster , meanwhile, said that "[a]n agency's interpretation is entitled to great judicial deference. Also, where the statutory scheme is complex a reviewing court must be even more cautious in substituting its discretion for the expertise of the administrative agency." 599 A.2d at 270 (citing SmithKline Beckman Corporation v. Commonwealth, 85 Pa.Cmwlth. 437, 482 A.2d 1344, 1353 (1984) ). These cases suggest that a complex statutory scheme requires deference beyond "great judicial deference."

Moreover, an agency's interpretation of a statute is quite different from its interpretation of its regulations. "Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress." Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 2425, 204 L.Ed.2d 841 (2019) (Roberts, C.J., concurring in part). The Commonwealth Court's cited standard of review suggests that judicial deference takes only one guise, at least when the statutory scheme is complex.

These issues can be further subdivided. For example, the standards applied for reviewing interpretations of agency material depends on the precise material at issue. See Harmon v. Unemployment Comp. Bd. of Review , 652 Pa. 23, 207 A.3d 292, 299 (2019) (explaining that there are "two types of agency interpretations which are accorded different levels of deference," i.e. published rules and regulations versus "guidance documents" like manuals, policy statements, and advisories). The Commonwealth Court's cited standard of review glosses over these issues.

Ins. Comm'r Decision, 6/21/2018, at 18.

Its failure to independently examine the text for any ambiguity is all the more problematic given that the Commonwealth Court's basis for deferring to the agency is that the Commissioner deserves deference because she is acting as the head of the agency and applying her expertise. Yet we know that the Commissioner here disagreed with agency staff, as she thought that the statutory language was ambiguous. It is unclear which view actually represents the Department's "official" position, as the Commissioner ultimately adopted the very views that her expertise should have overruled.

Taken together, the Commonwealth Court erroneously cited a broad standard of review that required deference to the agency's conclusion on ambiguity and nebulously suggests that the court was permitted, or even required, to simply accept an agency's view without any legal analysis of its own regardless of the particular issue involved.

II.

An agency's interpretation of an ambiguous statute is limited to persuasive value

The foregoing analysis addresses the Commonwealth Court's error in merging Chevron 's first two steps. As to the second step, in my view, the Commonwealth Court's decision to defer, as a matter of law, to the Commissioner's interpretation of the statute is unsupported by Pennsylvania law. And while the Majority declines to address whether we must defer to the agency's view, our grant of allowance of appeal anticipated a general consideration of the Commonwealth Court's announced standard of review.

This issue has generated significant disagreement amongst members of the Court, as demonstrated by our recent decision in Harmon v. Unemployment Comp. Bd. of Review , 652 Pa. 23, 207 A.3d 292 (2019). See id . at 300 (observing that precedent permits granting "some measure of value to [agency] interpretations under certain circumstances") (Dougherty, J., joined by Baer and Todd, JJ.); id . at 308 (Saylor, C.J., concurring) ("A pervading question in this field, of course, is how much deference is due in any given context."); id . at 310 (Donohue, J., concurring) ("I reject any rule of construction that would require courts to abdicate our judicial role to administrative agencies."); id . (Wecht, J., concurring) ("I do not agree that reviewing courts should afford what often amounts to unqualified deference—i.e. , Chevron deference—to an executive-branch agency's interpretation of an ambiguous statute.") (footnote omitted); id . at 313 (Mundy, J., dissenting) ("As noted by Chief Justice Saylor in his concurring opinion, some deference is due[.]"). See also Com., Dep't of Educ. v. Empowerment Bd. of Control of Chester-Upland Sch. Dist. , 595 Pa. 426, 938 A.2d 1000, 1014 (2007) (Baer, J., concurring) ("While I agree that the Secretary enjoys a great deal of latitude in administering the Code, I do not believe that ... administrative interpretations forwarded for the first time in connection with adversarial litigation, are entitled to any more weight than any other litigant's argument[.]")

When a reviewing court finds that a statute is ambiguous, in my view an agency's interpretation is entitled to deference only in the sense of a recognition that the agency's view should be considered for its persuasive value. This position is distinct from deferring to the agency's view as a matter of law. Kisor , 139 S. Ct. at 2424 ("[T]here is a difference between holding that a court ought to be persuaded by an agency's interpretation and holding that it should defer to that interpretation under certain conditions.") (Roberts, C.J., concurring in part). Pennsylvania law materially differs from federal law on this point. While we both seek to ascertain legislative intent and use various maxims and canons of statutory construction to do so, our General Assembly has specifically addressed, through its enactment of the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991, the impact of administrative interpretations when reviewing ambiguous statutes. "When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering , among other matters .... [l]egislative and administrative interpretations of such statute ." 1 Pa.C.S. § 1921(c)(8) (emphases added). This point is significant insofar as the Chevron doctrine is

rooted in a background presumption of congressional intent: namely, "that Congress, when it left ambiguity in a statute" administered by an agency, "understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740–741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. See [AT & T Corp. v. ] Iowa Utilities Bd., 525 U.S. [366] at 397, 119 S.Ct. 721 [142 L.Ed.2d 835 (1999)]. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.

City of Arlington, Tex. v. F.C.C. , 569 U.S. 290, 296, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). The existence of Section 1921(c)(8) of the Statutory Construction Act establishes that our General Assembly legislates against a different backdrop. If a court finds that a statute is ambiguous, the General Assembly has dictated that the ambiguity will be resolved by the courts, with the agency's interpretation as one of eight non-exclusive factors to be considered. Thus, our General Assembly, unlike Congress, has spoken in plain terms. See Nicole B. v. Sch. Dist. of Philadelphia , ––– Pa. ––––, 237 A.3d 986, 994 (2020) ("Our General Assembly, unlike our federal counterpart, has dictated explicit considerations via the Act regarding how to discern its statutory intent."). As 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). We cannot give "special deference" to an agency's interpretation of an ambiguous statute, and suggestions to the contrary rest on grander statements, like those relied upon by the Commonwealth Court in this case, than our law actually permits. Per the Statutory Construction Act, we may consider, but not defer to, agency interpretations of statutes.

Nothing in our Administrative Agency Law suggests that the role of statutory construction was otherwise delegated to agencies, assuming arguendo that the judicial power to say what the law is could be transferred. The subchapter dictating judicial review of Commonwealth agency decisions states:

The court shall hear the appeal without a jury on the record certified by the Commonwealth agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law , or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

2 Pa.C.S. § 704 (emphasis added). The "in accordance with law" language naturally encompasses an appellate court applying the Statutory Construction Act, which, in turn, explicitly states that the agency's interpretation is entitled only to consideration.

Relatedly, Chevron itself did not cite the federal Administrative Procedures Act ("APA"), which instructs a court as follows: "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." 5 U.S.C.A. § 706. There is a question of "whether Chevron was faithful to the text of the [APA], which it did not even bother to cite." United States v. Mead Corp. , 533 U.S. 218, 241, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Scalia, J., dissenting). See also Baldwin v. United States , ––– U.S. ––––, 140 S. Ct. 690, 691, 206 L.Ed.2d 231 (2020) (Thomas, J., dissenting from denial of writ of certiorari) ("[ Chevron ] rests on the fiction that silent or ambiguous statutes are an implicit delegation from Congress to agencies. Chevron is in serious tension with the Constitution, the APA, and over 100 years of judicial decisions.") (citation omitted). But we need not address those criticisms of Chevron ; we need only recognize that the Statutory Construction Act provides clear direction from the General Assembly that the judicial branch is responsible for ascertaining the meaning of an ambiguous statute, with an agency's interpretation merely one of many factors warranting consideration. Our courts cannot recognize a Chevron -like "implicit delegation" to agencies to determine the meaning of an ambiguous statute without ignoring the Statutory Construction Act.

Justice Scalia noted that it "could be argued ... that the legal presumption identified by Chevron left as the only ‘questio[n] of law’ whether the agency's interpretation had gone beyond the scope of discretion that the statutory ambiguity conferred." United States v. Mead Corp. , 533 U.S. 218, 241 n.2, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Scalia, J. dissenting).

Id.

Conclusion

Absent from the Commonwealth Court's opinion is any statutory analysis of the phrase "commercial business" in Section 674-A of the Act. We should take this opportunity to correct the Commonwealth Court's error and hold that the nebulous standard of review employed in this case was contrary to our judicial duty to say what the law is. While I adhere to my view that a court can consider, but not defer to, an agency's interpretation of an ambiguous statute, there should be no doubt that a court must first determine for itself whether an ambiguity actually exists.

JUSTICE WECHT, concurring

I agree that Subsection 310.74(a) of the Insurance Department Act¹ prohibits insurance producers like Appellants from charging fees (other than commissions) in connection with consumer transactions. The Act unambiguously precludes such fees. We need not resort to non-textual considerations such as the legislative purpose of the Act or the consequence of allowing insurance producers to collect additional fees.²

The General Assembly enacted all of the statutory provisions relating to insurance producers at issue here in a single piece of legislation, Act 147 of 2002. Among many other things, that legislation: allowed insurance producers to operate within the Commonwealth, 40 P.S. § 310.3 ; authorized the Insurance Commissioner to issue (and revoke) the licenses of insurance producers, 40 P.S. § 310.2 ; and set forth licensing and examination requirements for insurance producers, 40 P.S. § 310.4. The law also contains two sections relating to insurance producers' fees and commissions. The first of these sections, now codified at 40 P.S. § 310.73, provides as follows:

Receipt of commissions

(a) Limitation.— A licensee may accept a commission, brokerage fee, service fee or other compensation from an insurance entity or licensee for selling, soliciting or negotiating a contract of insurance. Except as provided in subsection (b), a person may not accept a commission, brokerage fee, service fee or other compensation from an insurance entity or licensee if the person is not a licensee and the compensation is for activities related to the sale, solicitation or negotiation of a contract of insurance.

(b) Exception.— A person may accept:

(1) a renewal or other deferred commission for selling, soliciting or negotiating a contract of insurance if the person was a licensee at the time of the sale, solicitation or negotiation; or

(2) a fee for referring persons to a licensee that are interested in purchasing

insurance provided they do not discuss specific terms and conditions of a contract of insurance and, in the case of referrals for insurance that is primarily for personal, family or household use, they receive no more than a one-time, nominal fee of a fixed dollar amount for each referral that does not depend on whether the referral results in a sale.

A person may not accept a commission or fee under this subsection if the person is a licensee under suspension or a former licensee whose insurance producer license was revoked.

40 P.S. § 310.73.

The other provision governing insurance producers' fees, Section 310.74, provides:

Imposition of additional fees

(a) General rule.— A licensee may charge a fee in addition to a commission to a person for the sale, solicitation or negotiation of a contract of insurance for commercial business. The fee charged by the licensee shall be disclosed in advance in writing to the person and shall be reasonable in relationship to the services provided.

(b) Application fee.— Notwithstanding other provisions of this section, no insurance producer shall charge a fee for the completion of an application for a contract of insurance.

40 P.S. § 310.74.

Oddly enough, all parties here appear to concede that Subsection 310.74(a) is ambiguous regarding whether insurance producers can charge additional fees to consumers.³ I discern no such ambiguity. Under Subsection 310.73(a), licensees are free to accept commissions and other compensation "for selling, soliciting or negotiating a contract of insurance." 40 P.S. § 310.73(a). But, when it comes to fees charged "to a person," the Act only allows licensees to charge fees "for the sale, solicitation or negotiation of a contract of insurance for commercial business ." 40 P.S. § 310.74(a) (emphasis added).

Woodford and Options claim that Subsection 310.74(a) is ambiguous because it is silent as to whether these additional fees can be charged in non-commercial (i.e. , consumer) transactions. But the Act is a comprehensive regulatory scheme that clearly begins with the assumption that insurance producers can do nothing, and then proceeds to authorize only certain activities. Given this structure, we should assume that any practices the General Assembly did not explicitly authorize were intentionally disallowed.

To hold otherwise would needlessly inject ambiguity throughout the Act. For example, Subsection 310.73(b)(2) says that a person may accept referral fees "provided they do not discuss specific terms and conditions of a contract of insurance[.]" 40 P.S. § 310.73(b)(2). Does that mean that the statute is silent as to whether a person can collect referral fees when that person discusses specific terms and conditions of the insurance contract? Of course not. Though the General Assembly's silence sometimes can create ambiguity, the silence here is pregnant. In a regulatory statute that affirmatively permits certain practices, courts generally should assume that anything not mentioned deliberately was omitted.⁴ The second sentence of Subsection 310.74(a) also teaches us that the statute prohibits producers from charging extra fees in consumer transactions. After stating that producers can charge fees in commercial transactions, Subsection 310.74(a) then goes on to say that "[t]he fee charged by the licensee" (meaning the fee charged in a commercial transaction) "shall be disclosed in advance in writing to the person and shall be reasonable in relationship to the services provided." 40 P.S. § 310.74(a). But, if one accepts Woodford and Options' argument that Subsection 310.74(a) simply authorizes fees in commercial transactions—but does not prohibit them in consumer transactions—then producers presumably could charge unreasonable and undisclosed fees to consumers. It beggars belief to suggest that the General Assembly would limit the fees that producers can charge in commercial transactions, while leaving fees charged to consumers entirely unregulated.

The Insurance Commissioner's rationale here for finding Subsection 310.74(a) ambiguous was especially unconvincing. The Commissioner concluded that the provision is unclear regarding whether producers can charge additional fees to consumers given that the Insurance Department's own witness "confirmed that the Department was investigating other agencies, in addition to Options, which also charged additional fees in personal insurance transactions."⁵ In the Commissioner's view, the existence of these investigations "confirms that the provision is open to more than one interpretation."⁶ The Commissioner errs. A statute is not ambiguous simply because it has been violated; people break unambiguous laws every day. Some insurance agencies might have decided to collect additional fees from consumers because they were unaware of Subsection 310.74(a), others because they unreasonably interpreted Subsection 310.74(a), and still others because they suspected that the Department would not enforce Subsection 310.74(a). Whatever the reason, the Commissioner's violation-ergo-ambiguity analysis is a non-starter.

Because Subsection 310.74(a) is unambiguous, issues concerning the Commonwealth Court's deference to the Insurance Department's interpretation of the Act are entirely moot. Although the narrow approach to administrative deference that Justice Donohue advances in her thoughtful concurrence aligns in most respects with my own well-documented views on the subject, the lack of ambiguity in Subsection 310.74(a) precludes me from reaching the issue today.

See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").

See , e.g ., Harmon v. Unemployment Comp. Board of Rev ., 652 Pa. 23, 207 A.3d 292, 310 (2019) (Wecht, J., concurring) ("As I have explained in the past, I do not agree that reviewing courts should afford what often amounts to unqualified deference—i.e. , Chevron deference—to an executive-branch agency's interpretation of an ambiguous statute." (footnote omitted)); County of Butler v. CenturyLink Commc'n, LLC , 652 Pa. 145, 207 A.3d 838, 854 (2019) (Wecht, J., concurring) (rejecting the notion that courts should defer to an interpretation that an agency develops in the course of litigation); Snyder Bros., Inc. v. Pa. Pub. Util. Comm'n , 650 Pa. 49, 198 A.3d 1056, 1083 (2018) (Wecht, J., concurring) ("In cases involving ambiguous statutory language, the interpretation suggested by an agency charged with administering the statute may be considered, but the meaning of a statute is essentially a question of law for the court."); see also Crown Castle NG East LLC v. Pa. Pub. Util. Comm'n , ––– Pa. ––––, 234 A.3d 665, 686 (2020) (Wecht, J., concurring) (expressing "deep and broad misgivings" about this Court's administrative deference jurisprudence); SEDA-COG Joint Rail Auth. v. Carload Express, Inc ., ––– Pa. ––––, 238 A.3d 1225, 1247-48 (2020) (Wecht, J., concurring) (same).

In sum, Subsection 310.74(a) is unambiguous. Under Woodford and Options' interpretation, a statute that says producers can charge additional fees in commercial transactions somehow is unclear regarding whether producers can charge additional fees in all transactions, including non-commercial ones. It is not. Under Subsection 310.74(a), "commercial business" plainly means only commercial business. I discern no ambiguity in Subsection 310.74(a), and I accordingly concur in today's result.

Justice Donohue joins this concurring opinion.

JUSTICE TODD, concurring and dissenting

I join Parts I and II.A of the Majority Opinion, as I agree we should reject the Commonwealth Court's categorical conclusion that the Nanty-Glo rule, established by our decision in Borough of Nanty-Glo v. American Surety , 309 Pa. 236, 163 A. 523 (1932) (holding that it was improper for a court to direct a verdict in favor of a party at a civil trial based solely on the uncontradicted testimony of that party's witnesses, as it deprived the jury, as finder of fact, from assessing the credibility of those witnesses), has no application in administrative proceedings. As the majority highlights, our Court subsequently recognized the Nanty-Glo rule's broader applicability to summary judgment proceedings in civil cases in Penn Center House v. Hoffman , 520 Pa. 171, 553 A.2d 900 (1989), wherein we ruled that "[t]estimonial affidavits of the moving party or his witnesses ... even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury." Id . at 903. Consequently, as the Nanty-Glo rule applies whenever a finder of fact is called upon to resolve a credibility issue in a civil proceeding, it should be followed whenever an administrative agency or tribunal acts as the finder of fact in issuing an adjudication. Inasmuch as the Insurance Commissioner, in ruling on Appellants' motion for summary judgment, was acting as the finder of fact, and because she recognized that genuine issues of material fact were raised by Appellants' affidavit regarding the propriety of the challenged fees, which could only be resolved through an evidentiary hearing at which the credibility of the affiant could be assessed, the Commissioner properly followed the Nanty-Glo rule in deciding Appellants' motion for summary judgment.

With respect to Part II.B of the Majority Opinion, I also agree that 40 P.S. § 310.74(a) of the Insurance Department Act ("Act") – which the Commissioner found Appellants to have violated, and, as a result, required, inter alia , that they pay a fine of $5,000 – is ambiguous. See Majority Opinion at ––––. As the majority develops, the competing legal interpretations of the text of Section 310.74(a) advanced by the Insurance Department and Appellants are both reasonable with regard to the question of whether Section 310.74(a) permitted Appellants to charge additional fees beyond commissions in personal insurance transactions, given that it does not explicitly prohibit them from doing so. See JP Morgan Chase Bank N.A. v. Taggart , 651 Pa. 98, 203 A.3d 187, 194 (2019) ("A statute is ambiguous when there are at least two reasonable interpretations of the text.").¹ However, for the following reasons, I must respectfully dissent from the majority's ultimate conclusion that Section 310.74(a) was not penal in nature and, therefore, not subject to the rule of strict construction. Accordingly, I would construe that section in favor of Appellants.

The Act was intended to provide a comprehensive regulatory framework governing the "transacting [of] any class of insurance business," 40 P.S. § 23, and it makes it unlawful for individuals to engage in "the transaction of the business of insurance, without fully complying with the provisions of [the Act]," 40 P.S. § 26. Thus, with respect to the conduct of insurance producers such as Appellants, Subarticle B of the Act, entitled "Regulation of Insurance Producers," enumerates certain specific "prohibited" activities which insurance producers are wholly forbidden from engaging in, 40 P.S. §§ 310.41 - 310.51, and other activities in which their conduct is "regulated," i.e ., subjected to statutorily specified restrictions, 40 P.S. §§ 310.71 - 310.79. The Act further provides that, upon a determination that an insurance producer has violated any of these prohibitions or regulations, the Insurance Commissioner may impose, inter alia , a "[d]enial, suspension, refusal to renew or revocation of the license" of the producer; and "[a] civil penalty not to exceed $5,000" for each violation. 40 P.S. § 310.91. From my perspective, the Act establishes the fundamental rules governing the business of insurance in this Commonwealth, which the legislature, in its policy judgment, sought to regulate, and those activities which are not barred or restricted by its provisions are presumptively permissible.

As the majority recognizes, and the parties agree, Section 310.74(a) does not expressly prohibit the charging of a fee in addition to a commission for the sale, solicitation, or negotiation of a contract of insurance for non-commercial insurance; rather, it merely states that "[a] licensee may charge a fee in addition to a commission to a person for the sale, solicitation or negotiation of a contract of insurance for commercial business ." 40 P.S. § 310.74(a) (emphasis added). Nevertheless, the majority applies the rule of expressio unius est exclusion alterius to find this provision, by implication , prohibits a producer from charging such fees in all non-commercial transactions. I find this "prohibition by implication" construction to be legally unsupported and wholly inapt, given that, in my view, Section 310.74(a) is penal in nature and, accordingly, must be strictly construed. See 1 Pa.C.S. § 1928(b)(1) (requiring penal provisions in all statutes to be strictly construed).

As a general matter, our Court long ago recognized that "[a] penal statute is one which imposes a penalty or forfeiture for transgressing its provisions, or for doing a thing prohibited, and it is none the less (sic) a penal statute [even though] it is also remedial." Nesbit v. Clark , 272 Pa. 161, 116 A. 404, 406 (1922). Thus, in considering whether a particular statutory provision is penal in nature, and therefore subject to strict construction, we must consider the primary purpose of the specific provision in question, when read in conjunction with other portions of the statutory framework in which it appears. Snyder Brothers v. PUC , 650 Pa. 49, 198 A.3d 1056, 1075 n.21 (2018). Hence, a statutory provision may be construed as penal in nature even if it appears within an overall statutory scheme that is remedial. See Verona v. Schenley Farms Co. , 312 Pa. 57, 167 A. 317, 320 (1933) ("'[T]here is no impropriety in putting a literal construction on a penal clause, and a liberal construction on a remedial clause' in the same statute."); see also 3 Sutherland Statutory Construction § 60:4 (8th ed.) (approving of judicial practice of separately construing the penal and remedial provisions of a statutory scheme by strictly construing the penal ones, while liberally construing the remedial provisions, noting that this approach "serves the disparate interests of the persons the law penalizes on the one hand and benefits on the other").

Consistent with this principle, our Court has regarded portions of a comprehensive statute which restricted real estate professionals' conduct for the remedial purpose of protecting the public, but which correspondingly imposed penalties such as loss of licensure and civil fines for violating its provisions, as penal in nature; accordingly, we strictly construed those provisions in favor of the licensee. See Pa. State Real Estate Commission v. Keller , 401 Pa. 454, 165 A.2d 79, 80 (1960) (the Real Estate Broker's Law, which authorized the suspension of a broker's license for violating its provisions, was penal and subject to strict construction); cf. Commonwealth v. Mason , 381 Pa. 309, 112 A.2d 174 (1955) (Securities Act which required the registration of, and regulation of the conduct of, individuals engaged in the buying, selling, and disposition of securities, was a penal statute subject to strict construction). Moreover, our Court has expressly refused to read an implied compliance requirement into a statute we considered penal in nature, whenever the legislature did not include such a requirement, because we deemed this as violative of this principle of strict construction. See Smith v. Messner , 372 Pa. 60, 92 A.2d 417, 419 (1952) (where Realty Transfer Tax Act did not provide that an agreement of sale was a taxable document, our Court would not conclude such a document was taxable "by implication" given that the statute was penal in nature).

Consequently, while I agree with the majority's assertion that the Act serves the salutary remedial purposes of "protecting both buyers and sellers of insurance through a comprehensive scheme that includes protections for insurance consumers as well as clear guidelines for entities that sell insurance," Majority Opinion at ––––, unlike the majority, I regard the primary purpose of Section 310.74, along with its companion statutes in Subarticle B, to be proscriptive in nature and intended to prohibit or limit particular insurance sales practices by setting parameters on whether and how they may be conducted; hence, I deem the penalty provisions of Section 310.91(a) to be the enforcement means to accomplish this primary purpose. Thus, in my view, Section 310.74(a) should be considered a penal statute subject to strict construction.²

The rule of strict construction of penal statutes is " ‘not merely a convenient maxim of statutory construction,’ but, rather, ‘is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of [legal sanction], whether his conduct is prohibited.’ " Commonwealth v. Smith , ––– Pa. ––––, 221 A.3d 631, 639 (2019) (internal citation and quotation marks omitted). Thus, inasmuch as Section 310.74(a) does not, by its plain terms, provide fair warning to insurance producers that charging a fee beyond a commission for the sale, solicitation, or negotiation of a contract of insurance for non-commercial business is prohibited, I would find that it must be strictly construed in favor of Appellants.

Therefore, I would vacate the order of the Insurance Commissioner imposing a fine and other sanctions on Appellants for violating Section 310.74(a). On this basis, I respectfully dissent.

Woodford v. Insurance Department

Summary

Opinion

OPINION

I. Background

A. The Insurance Commissioner's Adjudication

B. The Commonwealth Court Appeal

II. The Present Appeal

A.

B.

III. Conclusion

I.

II.

Conclusion

Woodford v. Insurance Department

Woodford v. Insurance Department

Case Details

Citations

Citing Cases

Woodford v. Insurance Department

Summary

Opinion

OPINION

I. Background

A. The Insurance Commissioner's Adjudication

B. The Commonwealth Court Appeal

II. The Present Appeal

A.

B.

III. Conclusion

I.

II.

Conclusion

Woodford v. Insurance Department

Woodford v. Insurance Department

Case Details

CitationsCopy Citation

Citing Cases

Citations