            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Harmon,                             :
                           Petitioner      :
                                           :
             v.                            :   No. 787 C.D. 2015
                                           :   Argued: March 8, 2017
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge

OPINION BY JUDGE BROBSON                                FILED: June 7, 2017


             Petitioner Daniel Harmon (Claimant) petitions for review of an order
of the Unemployment Compensation Board of Review (Board).                   The Board
affirmed an Unemployment Compensation Referee’s (Referee) decision, finding
Claimant ineligible for unemployment compensation benefits pursuant to
Section 402.6 of the Unemployment Compensation Law (Law).1 We now affirm.
             Claimant was employed by Browns Shop Rite (Employer).                   On
December 18, 2013, Claimant pled guilty to a charge of driving with a suspended
or revoked driver’s license, 75 Pa. C.S. § 1543 (b)(1). (Certified Record (C.R.),
Item No. 2 at Docket Sheet.) As a result of Claimant’s guilty plea, he was


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of
October 30, 1996, as amended, 43 P.S. § 802.6.
sentenced “to 60 days confinement to be served on 30 consecutive weekends.”
(Id.)   Claimant began serving his sentence on March 14, 2014, and he was
permanently released on August 7, 2014. (Id.) During this period, Employer
terminated Claimant’s employment for reasons unrelated to his incarceration, and
Claimant filed for unemployment compensation benefits effective March 23, 2014.
(C.R., Item No. 1.)    The Erie UC Service Center (Service Center) issued a
determination finding Claimant ineligible for benefits for the weeks ending
March 29, 2014, through July 26, 2014, because Claimant was incarcerated during
this period. (C.R., Item No. 3 at Notice of Determination.) The Service Center
further determined that Claimant’s failure to report his incarceration while filing
for unemployment compensation benefits resulted in a fault overpayment of
benefits, for which the Service Center assessed a penalty of $438.75 and 17 penalty
weeks. (Id.) Claimant appealed the Service Center’s determination, and a Referee
conducted a hearing.
            During the hearing before the Referee, Claimant, who was
unrepresented by counsel, testified that he worked an average of twenty hours per
week prior to Employer’s termination of his employment for “violation of
company policy.” (C.R., Item No. 7 at 4.) Claimant began serving his sentence for
driving with a suspended license on March 14, 2014. (Id. at 5.) Throughout the
length of his sentence, Claimant reported to the prison at 5:00 p.m. on Fridays and
was released every Sunday at 3:00 p.m. (Id.) When he began serving his sentence,
Claimant continued to work for Employer during the week. (Id. at 8.) After
Employer terminated his employment, Claimant sought alternative employment,
because he “was always available to work.” (Id. at 9.) Claimant testified that he
did not knowingly withhold information from the Service Center while filing for


                                        2
unemployment compensation benefits. (Id. at 6.) Claimant indicated that he
received but had not fully read an Unemployment Compensation Handbook. (Id.)
               Andrea Quirk, an Unemployment Compensation Claims Examiner,
also testified at the hearing before the Referee.       Ms. Quirk testified that the
Unemployment Compensation Handbook informs claimants that they are not
eligible for “benefits for any week in which [the claimant is] incarcerated due to a
conviction.”     (Id. at 7.)     Although Claimant received the Unemployment
Compensation Handbook, he did not inform the Service Center that he was
incarcerated on the weekends. (Id.) Ms. Quirk cited Claimant’s knowing failure to
report his incarceration to the Service Center as justification for the assessment of
the penalty and penalty weeks. (Id. at 7, 9.)
               The Referee issued a decision, affirming the Service Center’s
determination as to Claimant’s ineligibility for benefits under Section 402.6 of the
Law. In so doing, the Referee made the following findings of fact:
               1. The Claimant was last employed by Browns Shop
                  Rite as a Customer Service Aide, part-time from
                  2/14/2013 through 3/24/2014 at a final rate of $9.75
                  per hour.
               2. The Claimant’s separation from employment is not at
                  issue in this appeal.
               3. The Claimant was incarcerated from 3/14/2014
                  through 8/7/2014 as a result of a traffic conviction for
                  driving on a suspended license.
               4. As part of the Claimant’s conviction, the Claimant
                  was ordered by the court to serve consecutive 48 hour
                  periods, weekends in incarceration in prison.
               5. The Claimant’s weekly incarceration begins Friday at
                  5:00 p.m. through Sunday at 3:00 p.m. each week.
               6. The Claimant states he is able to work and available
                  to work around his incarceration.


                                           3
(C.R., Item No. 8 at 1.) The Referee reasoned that Claimant was ineligible for
benefits “due to his conviction and incarceration during the weeks at issue.”
(Id. at 2.) The Referee further found that Claimant did not intentionally withhold
the information concerning his incarceration from the Service Center.
Accordingly, the Referee modified the portion of the Service Center’s award which
assessed penalty weeks.
              Claimant retained counsel and appealed the Referee’s decision to the
Board. Claimant contended that incarceration during the weekend does not render
a claimant ineligible for benefits under Section 402.6 of the Law. Claimant’s
incarceration was not continuous, and Claimant argued that he was thus able and
available to work during the week. Claimant further argued that because the
Referee found that Claimant did not intentionally withhold information from the
Service Center, the determination as to Claimant’s fault overpayment should be
reversed. The Board affirmed the Referee’s decision as to Claimant’s ineligibility
for benefits under Section 402.6 of the Law and adopted the Referee’s findings of
fact and conclusions of law. The Board, however, modified the overpayment of
benefits to a non-fault overpayment. Claimant petitioned this Court for review of
the Board’s order.
              On appeal,2 Claimant contends that the Board erred in concluding that
Section 402.6 of the Law rendered him ineligible for benefits. In support of that
contention, Claimant first argues that the plain language of Section 402.6 of the


       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.



                                               4
Law requires that a claimant must be incarcerated for an entire week to be found
ineligible for benefits. If, however, this Court concludes that the language of
Section 402.6 of the Law is ambiguous, Claimant argues that the legislative intent
behind the enactment of Section 402.6 of the Law precludes application of the
section to claimants who are only incarcerated on the weekends. Claimant next
argues that because the Law is to be liberally construed, Section 402.6 should not
be applied in an overly punitive matter.                   Last, Claimant argues that
Section 402.6 of the Law should be interpreted so as to be internally consistent
with other provisions of the Law.3
              We first address Claimant’s argument that the plain language of
Section 402.6 of the Law does not preclude him from being eligible for benefits.
Section 402.6 of the Law provides: “An employe shall not be eligible for payment
of unemployment compensation benefits for any weeks of unemployment during
which the employe is incarcerated after a conviction.”               Claimant asserts that
Section 402.6 requires that the claimant must be continuously incarcerated for the
full week in order for a claimant to be found ineligible for benefits for a week. In
support of this assertion, Claimant relies on the definition of the word “during,”
which is not defined in the Law and can, in some instances, imply continuity.
Claimant contends that such a definition results in a “durational requirement”—
namely, that a claimant is only ineligible for benefits under Section 402.6 of the
Law if he or she is continuously incarcerated throughout the entirety of the week.
Because Claimant was only incarcerated during the weekends, Claimant thus


       3
         Claimant’s arguments as presented in his brief have been reorganized here for ease of
discussion.



                                              5
contends that he is eligible. The Board counters that “during” may also mean “at
some point,” and the Board’s interpretation of Section 402.6 of the Law as
precluding a claimant who is incarcerated during the weekend from receiving
benefits is, therefore, reasonable.
             When interpreting a statute, this Court is guided by the Statutory
Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, which provides that “[t]he
object of all interpretation and construction of statutes is to ascertain and effectuate
the intention of the General Assembly.” 1 Pa. C.S. § 1921(a). “The clearest
indication of legislative intent is generally the plain language of a statute.” Walker
v. Eleby, 842 A.2d 389, 400 (Pa. 2004). “When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa. C.S. § 1921(b). Only “[w]hen the words of the statute
are not explicit” may this Court resort to statutory construction.         1 Pa. C.S.
§ 1921(c). “A statute is ambiguous or unclear if its language is subject to two or
more reasonable interpretations.” Bethenergy Mines, Inc. v. Dep’t of Envtl. Prot.,
676 A.2d 711, 715 (Pa. Cmwlth.), appeal denied, 685 A.2d 547 (Pa. 1996).
Moreover, “[e]very statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa. C.S. § 1921(a). It is presumed “[t]hat the General Assembly
intends the entire statute to be effective and certain.” 1 Pa. C.S. § 1922(2). Thus,
no provision of a statute shall be “reduced to mere surplusage.” Walker, 842 A.2d
at 400. Finally, it is presumed “[t]hat the General Assembly does not intend a
result that is absurd, impossible of execution or unreasonable.” 1 Pa. C.S.
§ 1922(1).
             As observed above, the term “during” is not defined in the Law.
Where a term is not expressly defined in a statute, this Court will construe the term


                                           6
according to its common and approved usage. 1 Pa. C.S. § 1903(a).                               “In
ascertaining the common and approved usage or meaning, a court may resort to the
dictionary definitions of the terms left undefined by the legislature.” Leventakos v.
Workers’ Comp. Appeal Bd. (Spyros Painting), 82 A.3d 481, 484 n.4 (Pa.
Cmwlth. 2013), appeal denied, 93 A.3d 464 (Pa. 2014).                      Merriam Webster’s
Collegiate Dictionary provides the following definitions of the word “during”:
(1) “throughout the duration of,” and (2) “at a point in the course of.” Merriam
Webster’s Collegiate Dictionary 360 (10th ed. 1997). As the parties correctly note,
these definitions differ in that the former appears to require continuity for a period
of time, while the latter simply means at some point in a period of time.
Claimant’s interpretation of the statute would thus require a claimant’s
incarceration throughout the duration of a week of unemployment—i.e., 24 hours a
day, each day of a week. The Board’s interpretation, by contrast, requires only that
a claimant be incarcerated at some point in the week.4 As both interpretations, in
isolation, are reasonable, we conclude that the language of Section 402.6 of the
Law is ambiguous, and, consequently, we reject Claimant’s argument as to the
plain language of the statute.




       4
          Inserting the dictionary definitions of “during” into the language of Section 402.6 of the
Law further illustrates the parties’ conflicting interpretations. Claimant’s interpretation would
read as follows: “An employe shall not be eligible for payment of unemployment compensation
benefits for any weeks of unemployment throughout the duration of which the employe is
incarcerated after a conviction.” Conversely, the Board urges us to adopt the following
interpretation: “An employe shall not be eligible for payment of unemployment compensation
benefits for any weeks of unemployment if at a point in the course of which the employe is
incarcerated after a conviction.”



                                                 7
               Having concluded that the language of Section 402.6 of the Law is
ambiguous, we must engage in statutory construction to discern the intent of the
General Assembly. “One aid in construing statutory language is an administrative
agency’s interpretation of the language of the statute it is charged with
administering, which will be given deference unless the interpretation is clearly
erroneous.”      Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 198 (Pa.
Cmwlth. 2015). The Board’s interpretation, which relies on one of two equally
reasonable definitions of the term “during,” is not clearly erroneous, and we
address Claimant’s remaining arguments bearing in mind the deference to which
the Board’s interpretation of Section 402.6 of the Law is entitled.5


       5
           Although not directly on point, the Board’s interpretation and application of the
eligibility provision in Section 402.6 of the Law is consistent with how this Court interpreted an
eligibility question in DeMoss v. Unemployment Compensation Board of Review, 454 A.2d 1146
(Pa. Cmwlth. 1983). In DeMoss, the Board denied benefits to claimants for disqualifying
conduct under Section 402(d) of the Law, as amended, 43 P.S. § 802(d). Section 402(d) of the
Law provides that an employee “shall be ineligible for compensation for any week . . . [i]n which
his unemployment is due to a stoppage of work, which exists because of a labor dispute.” On
appeal, the claimants contended that because the disqualifying conduct occurred at the end of the
work week, they should be eligible for a partial weekly benefit for the portion of the week
preceding the disqualifying conduct. Rejecting the claimants’ argument, this Court opined:
              The resolution of this case hinges upon the initial words of Section 402:
       “An employe shall be ineligible for compensation for any week . . . .” We believe
       that the use of the words “any week” denotes a legislative intent that an
       unemployed worker show eligibility for benefits during the entire period from
       Sunday through Saturday, and that disqualifying conduct during any portion of a
       week would result in loss of benefits for the entire week.
DeMoss, 454 A.2d at 1147. The language in Section 402.6 of the Law is different in two
respects: (1) it includes the plural “weeks” instead of the singular “week” when referring to the
period of ineligibility, and (2) includes the word “during.” We do not perceive either difference
as compelling us, from a statutory construction perspective, to apply Section 402.6 of the Law in
a way that conflicts with our holding in DeMoss.



                                                8
             Claimant contends that the legislative history underlying the
enactment of Section 402.6 of the Law illustrates the General Assembly’s intent to
preclude from receiving benefits only those claimants who are granted work
release, but remain incarcerated and live at the taxpayers’ expense throughout the
entire week. In support of this argument, Claimant cites the Supreme Court of
Pennsylvania’s decision in Chamberlain v. Unemployment Compensation Board of
Review, 114 A.3d 385 (Pa. 2015). There, the Board found that a claimant was
ineligible for benefits under Section 402.6 of the Law, because the claimant was
sentenced to serve a term of house arrest. During this house arrest, the claimant
“spent no time in prison or any other state correctional institution, but rather lived
at his sister’s residence, and had permission to work, run errands, and shop for
Christmas.” Chamberlain, 114 A.3d at 387. The claimant appealed the Board’s
determination as to his eligibility to this Court, which reversed. In so doing, we
explained that interpreting house arrest as the equivalent to incarceration for
purposes of Section 402.6 of the Law would contravene the remedial purpose of
the Law. The Pennsylvania Supreme Court affirmed our decision. Our Supreme
Court cited the following comment, which was made immediately prior to the
Pennsylvania House of Representatives’ vote on the amendment of the bill
concerning Section 402.6 of the Law:
             Mr. Speaker, this amendment would put into the . . . Law
             a prohibition which is similar to one which we inserted
             into the workers’ compensation law in 1993.
             Specifically, this amendment says that someone who is
             incarcerated after a conviction does not receive
             unemployment benefits.
             I learned to my surprise a month or so ago from a
             business in my district that it is possible now, if you are
             convicted and you are in prison and you qualify for work
             release and your employer does not want you back, you

                                          9
            then get unemployment compensation. This businessman
            in my district and the other employees in that company
            do not think that is right; I do not think that is right
            either, and I think we ought to change the law.
Id. at 396 (quoting H.R. Legis. Journal No. 31, 180th Gen. Assemb., Reg.
Sess. 835 (Pa. 1996) (statement of Rep. William Lloyd)). The Supreme Court
explained that this comment demonstrated the General Assembly’s intent to
change the law established by this Court’s decision in Greer v. Unemployment
Compensation Board of Review, 392 A.2d 918 (Pa. Cmwlth. 1978), wherein we
concluded that an incarcerated claimant participating in a work release program
was able to obtain unemployment compensation benefits. There was no evidence,
however, that the General Assembly’s intent to supersede Greer extended to the
disqualification of “claimants who were not incarcerated in a prison or an
alternative institutional setting, but rather were sentenced to the less severe
sanction of home confinement.” Id. Accordingly, the Supreme Court concluded
that claimants sentenced to house arrest were not automatically ineligible for
benefits under Section 402.6 of the Law.
            Here, Claimant contends that unlike claimants participating in a work
release program, he was not incarcerated and living at the taxpayers’ expense for
the majority of the week. Claimant thus argues that the legislative history, as
explained in Chamberlain, does not support precluding claimants from receiving
benefits when they are free from incarceration for the majority of the week. This
Court, however, has recently applied Section 402.6 of the Law to a claimant
sentenced to weekend incarceration, rather than work release. In Gonzalez v.
Unemployment      Compensation       Board    of    Review,     (Pa.   Cmwlth.,




                                       10
No. 1825 C.D. 2014, filed Aug. 18, 2015),6 the Board concluded that a claimant
who was sentenced to weekend incarceration was ineligible for benefits under
Section 402.6 of the Law. The claimant appealed to this Court, arguing “that
because he is only incarcerated for two days per week, days in which he did not
usually work anyway, that he established eligibility for unemployment
compensation benefits.” Gonzalez, slip op. at 1. In affirming the Board’s order,
we explained that the claimant’s ability to work during the week was not
dispositive.     Rather, “the decision in Chamberlain makes clear that the
applicability of Section 402.6 [of the Law] does not depend upon the claimant’s
availability for work, but upon the meaning of the term incarceration, which it
found to be ‘starkly different’ from home confinement.” Id., slip op. at 3. We
concluded that although the claimant was only incarcerated during the weekend,
there was no question that he was “incarcerated” for the purposes of
Section 402.6 of the Law, and, therefore, the claimant was ineligible for benefits.
               Claimant contends that Gonzalez is distinguishable from the instant
matter, because the only question in Gonzalez was whether the pro se claimant was
“incarcerated” for the purposes of Section 402.6 of the Law. Here, in contrast,
Claimant concedes that he was incarcerated but argues that he is nevertheless
eligible for benefits, because his weekend incarceration does not satisfy the
“durational requirement” of Section 402.6 of the Law. We are not persuaded that
this argument necessitates a different result from that in Gonzalez. The principles
developed in Chamberlain, as we explained in Gonzalez, demonstrate that the


       6
         This case is cited for its persuasive value pursuant to Section 414 of the Commonwealth
Court’s Internal Operating Procedures.



                                              11
applicability of Section 402.6 of the Law depends upon whether a claimant is
incarcerated within the meaning of the Law. Claimant here concedes that he was
incarcerated. (Claimant’s Br. at 10, 28.) Further, even if Claimant argued that he
was not incarcerated within the meaning of Section 402.6 of the Law, Claimant’s
sentence is different from the sentence of home confinement at issue in
Chamberlain, because Claimant was confined, at least part of the week, in a
correctional facility at the expense of taxpayers. In this sense, Claimant’s sentence
is similar to that of claimants participating in work release programs, which the
General Assembly clearly intended to preclude from receiving benefits when it
enacted Section 402.6 of the Law. Accordingly, we reject Claimant’s argument as
to the legislative history of Section 402.6 of the Law.
               Claimant next argues that the Board’s interpretation of Section 402.6
of the Law is overly punitive and contravenes the remedial purpose of the Law.
Specifically, Claimant maintains that the Law must be liberally construed so as to
provide the broadest possible benefits.             Claimant explains that the Board’s
interpretation of Section 402.6 of the Law would unjustly prevent Claimant from
receiving benefits for seven and a half months even though the term of his sentence
was only two months.
               Section 3 of the Law,7 relating to declaration of public policy,
provides that “[e]conomic insecurity due to unemployment is a serious menace to
the health, morals, and welfare of the people of the Commonwealth.” As such, it is
well-settled that “[t]he purpose of the Law is to be remedial and broadly construed
so that employees who become unemployed through no fault of their own are

      7
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. § 752.



                                               12
provided with some semblance of economic security.”                           Darby Twp. v.
Unemployment Comp. Bd. of Review, 429 A.2d 1223, 1227 (Pa. Cmwlth. 1981).
“Conversely, disqualification provisions . . . should be narrowly construed and a
claimant must not be denied compensation unless he is unequivocally excluded by
the plain language of these provisions.” Penflex, Inc. v. Bryson, 485 A.2d 359, 365
(Pa. 1984). As noted above, the applicability of Section 402.6 of the Law is
dependent upon whether a claimant is incarcerated. The extent of a claimant’s
confinement is, at best, only relevant to a determination of whether a claimant is
incarcerated within the meaning of Section 402.6 of the Law. See Chamberlain;
Gonzalez. Claimant concedes that he was incarcerated, and, consequently, when
interpreted in light of the discussions above he is excluded from receiving
unemployment compensation benefits under Section 402.6 of the Law.
Accordingly, we reject Claimant’s argument that the Board’s interpretation of
Section 402.6 of the Law is overly punitive and contravenes the remedial purpose
of the Law.8




       8
          Within this argument, Claimant contends that the Board’s interpretation also disregards
the purpose of a partial confinement sentence—namely, so that an individual may work or search
for employment. We note, however, that although a sentence of partial confinement may be
appropriate for claimants who are employed or seeking employment, the receipt of
unemployment compensation benefits is not a purpose for which a partial release may be
granted. 42 Pa. C.S. § 9755(c) (providing that court may grant partial release to allow individual
to work, seek employment, engage in self-employment, attend educational institution, receive
medical treatment, or “devote time to any other purpose approved by the court”). Absent any
indication to the contrary, the Board’s interpretation of Section 402.6 of the Law does not clearly
undermine the purpose behind granting an individual a partial confinement sentence. We,
therefore, reject Claimant’s argument that the Board’s interpretation also disregards the purpose
of a partial confinement sentence.



                                                13
             Last, Claimant contends that the Board’s                 interpretation of
Section 402.6 of the Law is not consistent with other sections of the Law.
Specifically, Claimant argues that Section 401(d)(1) of the Law, 9 which requires a
claimant to be able and available for work to be eligible for benefits, has been
interpreted so as to allow claimants who are only partially available for work to be
eligible for benefits. Additionally, Claimant explains that a claimant who only
receives earnings for part-time work may also be eligible for benefits. Claimant
thus contends that in the interest of consistency Section 402.6 of the Law should be
construed so as to allow a claimant who is only incarcerated for part of the week to
be eligible for benefits.
             Claimant’s argument concerning consistency involves provisions of
the Law that relate to a claimant’s eligibility for benefits. See Section 401 of the
Law (listing qualifications required for claimant to receive benefits); Section 4(g.1)
of the Law10 (establishing credit week as every week in which claimant earned
sixteen times the minimum wage). Thus, if a claimant has only limited availability
for work or only earns part-time wages, he or she may still be eligible for benefits.
See, e.g., Rohde v. Unemployment Comp. Bd. of Review, 28 A.3d 237 (Pa.
Cmwlth. 2011) (holding that claimant’s limited availability did not remove him
from labor market and claimant was thus able and available for work).
Section 402.6 of the Law, however, is a provision which expressly relates to a
claimant’s ineligibility for benefits. Instead of providing the criteria with which a

      9
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 801(d)(1).
      10
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 753(g.1).



                                           14
claimant must comply in order to be eligible for benefits, Section 402.6 of the Law
was enacted for the purpose of precluding incarcerated claimants from receiving
benefits. It is not inconsistent, therefore, for the Board to interpret Section 402.6
of the Law as prohibiting a claimant from receiving benefits if the claimant has
been incarcerated for part of the week.             Rather, the Board’s interpretation is
consistent, because the provisions concerning eligibility permit the Board to find a
claimant eligible for benefits when the claimant is only partially available for
work, and the provisions concerning ineligibility permit the Board to find a
claimant ineligible for benefits when the claimant is incarcerated for only part of
the week.
              In further support of this reasoning, we note that although a claimant
may be eligible for unemployment compensation benefits under Section 401 of the
Law, as amended, 43 P.S. § 801(d), other provisions of the Law may nevertheless
render that claimant not eligible for benefits as a matter of law, including
Section 402.1 of the Law, added by the Act of July 6, 1977, P.L. 41, as amended,
43 P.S. § 802.1,11 and Section 402.6 of the Law. These statutory provisions,
therefore, render a claimant ineligible for benefits as a matter of law without
reference to or consideration of his ability or availability to work. Thus, factual
circumstances that would go into consideration of whether a claimant is able and
available for work, such as the time periods during which a claimant is available

       11
           Section 402.1 of the Law renders ineligible for benefits a claimant who is otherwise
eligible for benefits under Section 401(d) of the Law. Section 402.1 of the Law provides that
school employees are ineligible for benefits during the period between successive academic
years or terms or during school breaks “if such individual performs such services in the first of
such academic years or terms and if there is a reasonable assurance that such individual will
perform services in the second of such academic years or terms.”



                                               15
for work, are not relevant to ineligibility provisions such as Sections 402.1 and
402.6 of the Law.12
              Finally, we harmonize our construction of Section 402.6 of the Law
with the underlying statutory policy, as reflected in Section 3 of the Law, that
being to provide benefits to “persons unemployed through no fault of their own.”
Section 3 of the Law is aspirational and provides a resource for construing or
interpreting the Law. Section 3, however, cannot supersede an express provision
of the Law that precludes certain claimants from collecting benefits. Section 402.6
of the Law, in essence, bars incarcerated individuals from receiving benefits,
regardless of whether the incarceration led to the claimant’s unemployment. In
this case, as noted above, the circumstances of Claimant’s separation from
Employer is not before us.            Even if we assume, however, that Claimant’s
separation and resulting unemployment was not his fault, it is indisputable that
Claimant’s conduct led to his conviction and incarceration, the latter of which
rendered him ineligible under Section 402.6 of the Law. As reasonably interpreted
by the agency charged with enforcing it, Section 402.6 of the Law essentially
creates a collateral civil consequence to incarceration. We see no conflict between


       12
          Claimant’s argument that the use of the term “during” in Section 402.6 of the Law
requires continuity of incarceration throughout the week in order for a claimant to be ineligible
for benefits would mean that anytime a claimant is incarcerated for less than 100% of the week,
he would not be ineligible for benefits under Section 402.6. Instead, his eligibility would be
dependent upon whether, despite his incarceration, he is able and available for work. Thus,
Claimant appears to ask us to consider the effect of his weekend incarceration on his eligibility
for benefits as if it were merely a question of whether he is able and available for work under
Section 401(d) of the Law. Such an approach to an incarcerated claimant’s eligibility for
benefits would, in effect, render the provisions of Section 402.6 mere surplusage. See Walker,
842 A.2d at 400.



                                               16
a statutory provision that renders a claimant ineligible for benefits due to his own
conduct and Section 3 of the Law.13
               In short, the Board’s interpretation of Section 402.6 of the Law is not
clearly erroneous, and it is entitled to deference. Claimant’s arguments in support
of an alternative construction that would render an incarcerated individual
ineligible for unemployment benefits only is he is incarcerated throughout the
duration of the week (i.e., 24 hours/7 days per week) are not sufficiently
compelling to override the deference afforded to the Board. We, therefore, affirm
the Board’s order.




                                      P. KEVIN BROBSON, Judge

Judge Wojcik dissents.




       13
            We also do not find the rule of lenity applicable in this case. The rule of lenity
provides that ambiguous provisions in a penal statute must be strictly construed against the
government. See McGrath v. Bureau of Prof. and Occupational Affairs, 146 A.3d 310, 316 (Pa.
Cmwlth. 2016) (en banc); see also 1 Pa. C.S. § 1928(b)(1) (requiring strict construction of penal
provisions of statute). “Penal statutes are statutes that define criminal offenses and specify their
corresponding fines and punishment.” Commonwealth v. Stone and Co., 788 A.2d 1079, 1082
(Pa. Cmwlth. 2001). Although the rule of lenity is not strictly confined to criminal statutes,
McGrath, the statute at issue must still be penal in nature in that it (a) defines an offense
and (b) imposes a corresponding fine or punishment. Section 402.6 of the Law is a provision
that establishes eligibility for a public benefit program (unemployment compensation). It neither
defines an offense nor imposes a fine or punishment for an offense. It only purports to exclude a
class of potential claimants, those incarcerated, from eligibility for weekly benefits. Accordingly,
it is not a penal provision, and the rule of lenity does not apply.



                                                17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Harmon,                      :
                     Petitioner     :
                                    :
           v.                       :   No. 787 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 7th day of June, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Harmon,                               :
                     Petitioner              :
                                             :
              v.                             : No. 787 C.D. 2015
                                             : Argued: March 8, 2017
Unemployment Compensation                    :
Board of Review,                             :
                 Respondent                  :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE JOSEPH M. COSGOVE, Judge

DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                                           FILED: June 7, 2017

              The majority has carefully parsed the words of Section 402.6 of the
Unemployment Compensation Law (Law)1 and concluded that its directive on the
eligibility of incarcerated persons for unemployment compensation is ambiguous.
I agree with that conclusion. I part company with the majority in its decision to
resolve the ambiguity against Daniel Harmon (Claimant), who is subject only to
partial confinement and available to work Monday through Friday. Because the
Law is remedial in nature, ambiguities therein should be resolved in favor of
coverage. Accordingly, I respectfully dissent.
              The majority acknowledges, correctly, the remedial nature of the Law.
It quotes, with approval, this Court’s recitation that the “purpose of the Law is to


1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of October 30,
1996, P.L. 738, as amended, 43 P.S. §802.6.
be remedial and broadly construed so that employees who become unemployed
through no fault of their own are provided with some semblance of economic
security.” Darby Township v. Unemployment Compensation Board of Review, 429
A.2d 1223, 1227 (Pa. Cmwlth. 1981).             The majority also acknowledges that
statutory disqualification provisions “should be narrowly construed and a claimant
must not be denied compensation unless he is unequivocally excluded by the plain
language of these provisions.” Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa.
1984). Our task is to apply these principles to Section 402.6 of the Law, which
states as follows:

              An employe shall not be eligible for payment of unemployment
              compensation benefits for any weeks of unemployment during
              which the employe is incarcerated after a conviction.

43 P.S. §802.6(a) (emphasis added).
              Prior to the 1996 enactment of Section 402.6, incarcerated inmates on
work release were able to collect unemployment compensation. See Greer v.
Unemployment Compensation Board of Review, 392 A.2d 918 (Pa. Cmwlth. 1978).
In Chamberlain v. Unemployment Compensation Board of Review, 114 A.3d 385,
396 (Pa. 2015), our Supreme Court observed “that Section 402.6 was enacted to
change the law originally established by the Commonwealth Court’s decision in
Greer by precluding unemployment compensation benefits to those claimants who
are incarcerated in prison and eligible for work release.”2 The question here is the

2
  In doing so, the Supreme Court relied on the comments of Representative William Lloyd, the
proponent of the legislation, who stated:
        Mr. Speaker, this amendment would put into the Unemployment Compensation
        Law a prohibition which is similar to one which we inserted into the workers’
        compensation law in 1993. Specifically, this amendment says that someone who
        is incarcerated after a conviction does not receive unemployment benefits.
(Footnote continued on the next page . . .)
                                   MHL-2
meaning of the phrase “any weeks of unemployment during which the employe is
incarcerated....”      43 P.S. §802.6 (emphasis added).                  Does “during” mean
throughout the week of unemployment or does it mean a single point of time
within that week?
               The word “during” is defined two ways. It means (1) “throughout the
duration of,” and (2) “at a point in the course of.”                     MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 360 (10th ed. 1997).                       Because “during” has two
reasonable meanings, Section 402.6 is ambiguous.                   The majority chooses the
second dictionary definition of “during,” but I would choose the first definition.
This broader definition is more appropriate given our duty to give a broad
construction to the Law’s remedial program and a narrow construction to a
disqualification from that program.
               The sentencing court ordered Claimant to serve his 60-day sentence
on weekends so that he could keep his job. Under the first dictionary definition of
“during,” Claimant is not incarcerated “throughout the duration of” the week. He
is not, therefore, automatically disqualified. Indeed, he is able to work Monday
through Friday, 9:00 a.m. to 5:00 p.m., a typical work week.                       To deny him
compensation because he spends weekends in prison is punitive and not consistent
with the remedial purpose of the Law.


(continued . . .)
         I learned to my surprise a month or so ago from a business in my district that it is
         possible now, if you are convicted and you are in prison and you qualify for work
         release and your employer does not want you back, you then get unemployment
         compensation. This businessman in my district and the other employees in that
         company do not think that is right; I do not think that is right either, and I think
         we ought to change the law.
Id. (citing 1996 Pa. Legis. J., House, p. 835 (May 13, 1996)) (emphasis added).

                                             MHL-3
               The General Assembly has directed that when the words of a statute
“are not explicit,” we may ascertain legislative intent by considering a number of
factors.     1 Pa. C.S. §1921(c).3        One factor, of the eight, is “administrative
interpretations.” 1 Pa. C.S. §1921(c)(8). “[A]lthough courts often defer to an
agency’s interpretation of the statutes it administers, where ... the meaning of the
statute is a question of law for the court, [and the court is] convinced that the
agency’s interpretation is unwise or erroneous, that deference is unwarranted.”
Rosen v. Bureau of Professional and Occupational Affairs, State Architects
Licensure Board, 763 A.2d 962, 968 (Pa. Cmwlth. 2000). Such is the case here.
               In explaining its holding, the Board stated as follows:

               Section 402.6 of the Law states that a claimant is disqualified
               for any weeks in which he is incarcerated after conviction. The
               record is clear that the claimant spent a portion of each of the
               weeks at issue confined to the Philadelphia County prison
               system. Although he was able to work part of those weeks in a
               work release program, this does not change the fact that he was
               incarcerated during those weeks; and the Section 402.6
               disqualification still applied. See Kroh v. UCBR, 711 A.2d

3
    Section 1921(c) states:
         When the words of the statute are not explicit, the intention of the General
         Assembly may be ascertained by considering, among other matters:
                (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.
               (8) Legislative and administrative interpretations of such statute.
1 Pa. C.S. §1921(c).

                                            MHL-4
             1093 (Pa. Cmwlth. 1998)(affirming the Board’s denial of
             benefits to a claimant under Section 402.6 during weeks that he
             was eligible for work release). The Kroh holding was
             unaffected by the recent opinion of Chamberlain v. UCBR, 83
             A.3d 282 (Pa. Cmwlth. 2014), so denial of benefits is required
             for an incarcerated claimant who is able and available for work
             release.

Board Adjudication, 4/15/2015, at 1 (emphasis added). The Board did not address
the meaning of the word “during.”          Rather, it focused solely on the word
“incarcerated.” Because the Board did not address the ambiguity in Section 402.6,
it is impossible to give its holding any deference.
             The other problem with the Board’s rationale is that it rests upon the
erroneous supposition that Claimant was in a “work release” program. He was not.
Claimant was serving a sentence of partial confinement, which is imposed
“[w]here the court determines the rehabilitative needs are high and the risk to the
public posed by the offender … is sufficiently low.” Commonwealth v. Patton,
597 A.2d 1216, 1218 (Pa. Super. 1991). From Sunday afternoon at 3:00 p.m. until
Friday evening at 5:00 p.m., Claimant is at liberty and able to work. He is not
under the confines of any penal institution.
             The Statutory Construction Act directs that where the words of the
statute are not explicit, we may look, inter alia, at the “occasion and necessity for
the statute,” and the “former law, if any, including other statutes upon the same or
similar objects.” 1 Pa. C.S. §1921(c)(1), (5). Our Supreme Court has undertaken
this exercise. In Chamberlain, it held that Section 402.6 was enacted to end the
eligibility of inmates on work release for unemployment compensation.           This
Court has further elaborated that Section 402.6 was enacted to bar prisoners “living
at taxpayers’ expense to [be able] to receive unemployment compensation just
because they were eligible for work release.”             Kroh v. Unemployment
                                       MHL-5
Compensation Board of Review, 711 A.2d 1093, 1096 (Pa. Cmwlth. 1998). A
person on house arrest does not live at taxpayer expense.                 Accordingly, the
Supreme Court held that Section 402.6 did not disqualify a person on house arrest
from receiving unemployment benefits. Chamberlain, 114 A.3d at 396.
              The    majority     cites   a    memorandum         opinion,    Gonzalez      v.
Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 1825 C.D.
2014, filed August 18, 2015), and suggests that there is no need for a “different
result” here. But there is. Gonzalez neither acknowledged nor addressed the
ambiguity of the word “during” in Section 402.6 of the Law. Rather, Gonzalez
focused on the plain meaning of the word “incarcerated” and did not mention the
word “during.”
              The Board argues that incarceration at any point in the week, whether
for two days or one hour, renders an employee ineligible for unemployment
compensation. Under this view, a person arrested for disorderly conduct on Friday
night, who spends one night in jail, pleads guilty and gets a sentence for time
served, is ineligible for unemployment compensation for the entire week. This
outcome is not consistent with the principle that a disqualification provision should
be narrowly construed. Penflex, 485 A.2d at 365. Notably, “a legislative measure
will be considered penal where ... the effect of the statute is so harsh that ‘as a
matter of degree’ it constitutes punishment.” Evans v. Pennsylvania Board of
Probation and Parole, 820 A.2d 904, 912 (Pa. Cmwlth. 2003) (emphasis added).
A penal provision “shall be strictly construed.” 1 Pa. C.S. §1928(b)(1).4


4
  Had the trial court sentenced him to serve the 60 days consecutively, then Claimant would be
eligible for unemployment in two months. The weekend sentence extended his disqualification
for more than six months. This is punitive.

                                          MHL-6
             Unlike the incarcerated inmate on work release, Claimant does not
live at taxpayer expense. Other than his weekend meals from the government, he
bears the burden of maintaining a place to live, securing transportation and
providing for all the necessities of life. Claimant’s weekend incarceration may be
his “fault,” but his unemployment is not.
             Section 3 of the Law, entitled “Declaration of Public Policy,” states,
in relevant part, as follows:

             Economic insecurity due to unemployment is a serious menace
             to the health, morals, and welfare of the people of the
             Commonwealth. Involuntary unemployment and its resulting
             burden of indigency falls with crushing force upon the
             unemployed worker, and ultimately upon the Commonwealth
             and its political subdivisions in the form of poor relief
             assistance. Security against unemployment and the spread of
             indigency can best be provided by the systematic setting aside
             of financial reserves to be used as compensation for loss of
             wages by employes during periods when they become
             unemployed through no fault of their own.

43 P.S. §752 (emphasis added). The declaration of policy in Section 3 “is to be
considered in construing” the Law. Department of Labor and Industry, Bureau of
Unemployment and Unemployment Compensation v. Unemployment Compensation
Board of Review, 24 A.2d 667, 667 (Pa. Super. 1942).          Claimant’s potential
indigency falls “ultimately upon the Commonwealth and its political subdivisions
in the form of poor relief assistance.” 43 P.S. §752. To deprive Claimant of
unemployment compensation not only punishes him, it also burdens the system by
which we provide relief to the indigent. This result is not consistent with the
directive in Section 3 on the proper construction of the Law, let alone any remedial
statute.


                                      MHL-7
              I construe the “weeks of unemployment during which the employe is
incarcerated” to mean that an employee is automatically disqualified only where he
is incarcerated “throughout the duration of” the week.                MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 360 (10th ed. 1997). He may still be disqualified if his
lesser term of incarceration adversely affects the Law’s requirement that he be
“able to work and available for suitable work.” Section 401(d)(1) of the Law, 43
P.S. §801(d)(1).5 I would reverse the Board’s adjudication and remand the case for
further proceedings.

                                        ______________________________________
                                        MARY HANNAH LEAVITT, President Judge

Judge Wojcik and Judge Cosgrove join in this dissenting opinion.




5
  The availability requirement is not absolute. The Law does not require the claimant to “be
available for full-time work, for permanent work, for his most recent work, or for his customary
job, so long as the claimant is ready, willing and able to accept some suitable work.” Rohde v.
Unemployment Compensation Board of Review, 28 A.3d 237, 243 (Pa. Cmwlth. 2011).

                                           MHL-8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel Harmon,                             :
                    Petitioner             :
                                           :
             v.                            :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 787 C.D. 2015
                 Respondent                :   Argued: March 8, 2017


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


DISSENTING OPINION
BY JUDGE COSGROVE                              FILED: June 7, 2017

             I join the thoughtful dissent of President Judge Leavitt in its entirety.
I write separately to emphasize several additional points.
             In fulfilling our duty to discern the intent of the General Assembly
whenever statutory interpretation is part of our decision making, we are not limited
to examination of the particular provision before us but must instead view the
entire body of legislation as an organic whole. We, indeed, are compelled to do so.
President Judge Leavitt carefully outlines how the Majority mistakenly limits the
interpretation of Section 402.6 of the Unemployment Compensation Law (Law). 1
In doing so, the Majority contradicts the Law’s “remedial and humanitarian []
purpose … [thus] frustrat[ing its objectives] by slavish adherence to technical and

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of
October 30, 1996, P.L. 738, as amended, 43 P.S. §802.6.
artificial rules.” Lehr v. Unemployment Compensation Board of Review, 625 A.2d
173, 175 (Pa. Cmwlth. 1993)(internal citations omitted).          We would be wise
therefore to embrace the President Judge’s analysis, and rest there. Suspecting the
Majority will not accept this invitation, there is additional reason to rethink what it
proposes.
             Although this case is before us in the unemployment benefit context,
what is really at its core is the sentencing decision of a trial judge. While criminal
law and its processes do not fit neatly into this Court’s wheelhouse, we cannot
ignore the profound experience a judge has in sentencing another. In fact, in no
other area of the law is a judge’s decision more consequential and impactful to the
party before him or her. “If the hundreds of American judges who sit on criminal
cases were polled as to what was the most trying facet of their jobs, the vast
majority would almost certainly answer ‘Sentencing.’              In no other judicial
function is the judge more alone; no other act of his [or hers] carries greater
potentialities for good or evil than the determination of how society will
treat its transgressors.” See Judge Irving R. Kaufman, Sentencing: The Judge’s
Problem,       Atlantic      Monthly,       January       1960,       available      at
http://www.theatlantic.com/past/docs/unbound/flashbks/death/kaufman.htm,          (last
viewed May 19, 2017).
             The General Assembly guides the sentencing decision and directs the
judge to consider, among other things, “the rehabilitative needs of the defendant.”
42 Pa.C.S. § 9721(b). These considerations are applied to the array of alternatives
outlined by statute, which include the possibility of a sentence of partial
confinement such as that imposed on Daniel Harmon (Claimant) pursuant to 42 Pa.
C.S. § 9721(a)(3). As the President Judge rightly notes, this sentence allowed
Claimant to serve time in a manner which provided him with complete liberty to

                                         JMC-2
remain employed during the normal workweek. Particularly tailored to Claimant,
this sentence fulfills the statutory purpose of addressing his rehabilitative needs.
Although circumstances cost him employment through no fault of his, receipt of
unemployment        benefits     nonetheless      would     have     supported      Claimant’s
rehabilitation given the requirement in Section 401(b)(1) of the Law that benefits
must accompany supervised efforts to seek employment.2 By construing Section
402.6 as it does, the Majority interferes with this rehabilitative effort in a way the
legislature cannot have intended.
              Whatever the motivation behind the enactment of Section 402.6,3 it
would be the epitome of illogic for the General Assembly to construct a
mechanism for courts to fashion a rehabilitative remedy for transgressors with one
statute, only to have that remedy eviscerated through exercise of another statute,
particularly when the latter has only a “humane” and “remedial” purpose.
              For these reasons, as well as those articulated by the President Judge, I
am compelled to dissent.



                                            ___________________________
                                            JOSEPH M. COSGROVE, Judge


President Judge Leavitt and Judge Wojcik join in this dissent.




       2
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
801(b)(1).

       3
         President Judge Leavitt’s reference to the legislative sponsor’s quote is quite telling.
See Harmon v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 787 C.D. 2015, filed
June 7, 2017) (Leavitt, P.J., dissenting, slip op. at 2 n.2).
                                             JMC-3
