          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Javier Gonzalez,                            :
                           Petitioner       :
                                            :
                    v.                      :    No. 1825 C.D. 2014
                                            :    SUBMITTED: March 13, 2015
Unemployment Compensation                   :
Board of Review,                            :
                    Respondent              :


BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER                                FILED: August 18, 2015


             Javier Gonzalez (Claimant), pro se, petitions this court for review of
the order of the Unemployment Compensation Board of Review (Board) affirming
the determination made by the referee that he was ineligible under Section 402.6 of
the Unemployment Compensation Law (Law),1 due to his incarceration during the
weeks at issue. After review, we affirm.
             Claimant filed an application for unemployment compensation
benefits in December 2013, following his seasonal layoff from Employer, Four


    1
      Section 402.6 of the Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as
amended, 43 P.S. § 802.6, added by the Act of October 30, 1996, P.L. 738. This section
provides that “[a]n 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.”
Seasons Landscaping, where he normally worked a weekday-only schedule.
Following the layoff period, Claimant returned to work at reduced hours during the
claim weeks ending January 18 and 25, 2014, and claimed partial benefits for those
weeks, reporting the wages he earned during those weeks. Claimant thereafter
filed for total benefits for the weeks ending February 1, 2014, through February 22,
2014.
              On January 13, 2014, Claimant pled guilty to driving under the
influence (DUI), 75 Pa. C.S. § 3802(a)(1), and was sentenced by the trial court to
serve forty-five consecutive weekends of incarceration in a county correctional
facility, beginning January 17, 2014. The terms of Claimant’s sentence required
him to report for incarceration prior to 11:00 p.m. on a Friday and he would be
released prior to 11:00 p.m. the following Sunday. Claimant was also required to
pay $15.00 per diem to the correctional facility for each weekend of his
incarceration.2
              The Erie Unemployment Compensation Service Center determined
that Claimant was ineligible for benefits under Sections 401(c),3 401(d)(1),4 and
402.6 of the Law. Claimant appealed, and after a hearing, the referee determined
that during the weeks Claimant filed for unemployment benefits, he was both able


    2
       In addition, Claimant was required to attend and complete drug and alcohol treatment;
undergo CRN Evaluation and treatment; attend safe driving school; and thereafter was put on
probation for a minimum/maximum of three years. See Notes of Testimony, Hearing of April
11, 2014, Claimant’s Exhibit C-2.
     3
       Section 401(c), 43 P.S. § 801(c), provides in pertinent part that compensation shall be
payable to an individual who becomes unemployed and “[h]as made a valid application for
benefits with respect to the benefit year for which compensation is claimed and has made a claim
for compensation in the proper manner and on the form proscribed by the department . . . .”
     4
       Section 401(d)(1), 43 P.S. § 801(d)(1), states that a claimant must be able to work and
available for suitable work in order to be eligible for benefits.



                                               2
and available for work, as he showed that his normal work schedule consisted of
weekdays.     Further, the referee determined that there was no evidence that
Claimant did not file a valid application for benefits or that he filed it in an
improper manner.       Therefore, the referee concluded that Claimant met the
requirements of both Sections 401(d)(1) and 401(c) of the Law. With respect to
Section 402.6 of the Law, the referee noted that while there was no current
Pennsylvania case law interpreting Section 402.6 as it applies to individuals
incarcerated only on weekends, the Board “has strictly construed Section 402.6 to
mean that persons who are convicted of, or plead guilty to, a crime for which they
serve incarceration in a facility for any period of time ‘during’ a week will be
ineligible for compensation for said week.” Referee’s Decision/Order, May 13,
2014, at 2. Thus, the referee determined that Claimant was ineligible for benefits
under Section 402.6 of the Law.
             Claimant appealed to the Board, which affirmed. On further appeal to
this court, Claimant questions whether the Board’s interpretation of Section 402.6
contravenes the remedial purpose of the Law and is unduly punitive. In particular,
Claimant asserts that because he was normally only scheduled to work weekday
hours and was willing and able to work even though he was sentenced to forty-five
consecutive weekends of incarceration during which he was required to pay for his
room and board at the county correctional facility, the Law should be liberally
construed in accordance with the declaration of public policy in Section 3 of the
Law5 and its remedial purpose, citing Frumento v. Unemployment Compensation

    5
     43 P.S. § 752, provides:
                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
(Footnote continued on next page…)


                                            3
Board of Review, 351 A.2d 631, 633 (Pa. 1976) (this act was intended to be
remedial and thus should be liberally construed to achieve its express purpose). In
essence, Claimant argues 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.
              Even where a claimant meets the eligibility requirements of the Law,
the General Assembly has enumerated certain circumstances under which a
claimant may be disqualified from receiving benefits. For example, Section 402(e)
of the Law provides, “An employe shall be ineligible for compensation for any
week . . . [i]n which his unemployment is due to his discharge . . . from work for
willful misconduct connected with his work . . . .” 43 P.S. § 802(e). Section
402(b) provides that an employee who voluntarily terminates his employment
without a necessitous and compelling reason is likewise ineligible for benefits. 43
P.S. § 802(b). In 1996, the General Assembly enacted Section 402.6, which states


_____________________________
(continued…)
          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. The principle of the accumulation of financial
          reserves, the sharing of risks, and the payment of compensation with
          respect to unemployment meets the need of protection against the
          hazards of unemployment and indigency. The Legislature, therefore,
          declares that in its considered judgment the public good and the general
          welfare of the citizens of this Commonwealth require the exercise of the
          police powers of the Commonwealth in the enactment of this act for the
          compulsory setting aside of unemployment reserves to be used for the
          benefit of persons unemployed through no fault of their own.



                                              4
that an employee is ineligible for benefits for any week during which he is
“incarcerated after a conviction.” 43 P.S. § 802.6.
             Recently, our Supreme Court considered the issue of whether “house
arrest” constituted “incarceration” for purposes of the disqualification provision set
forth in Section 402.6 of the Law in Chamberlain v. Unemployment Compensation
Board of Review, 114 A.3d 385 (Pa. 2015). While noting that under its dictionary
definition, “‘incarceration’ could be commonly understood to mean either
imprisonment or the more broad definition of confinement,” the Court concluded
that the term was ambiguous and proceeded to “ascertain the intent of the General
Assembly in enacting Section 402.6.” Id. at 396-97. The Supreme Court noted
that prior to the enactment of Section 402.6, there had been no specific provision
disqualifying   an    incarcerated   claimant    from    receiving    unemployment
compensation benefits, but that our decision in Greer v. Unemployment
Compensation Board of Review, 392 A.2d 918 (Pa. Cmwlth. 1978), prompted the
General Assembly to act.       In Greer, we found that the claimant, who was
incarcerated but on work release, was receiving benefits at the time of his
incarceration, had no restrictions on his availability to work and made every effort
to find a job, was not disqualified under Section 401(d)’s able and available to
work requirement. While recognizing the amount of time that passed following
this decision before the General Assembly enacted Section 402.6, our Supreme
Court nevertheless determined that it was enacted “to change the law originally
established by . . . Greer by precluding unemployment compensation benefits to
those claimants who are incarcerated in prison and eligible for work release.”
Chamberlain, 114 A.3d at 396. However, the Supreme Court found that there was
“no evidence to suggest that Section 402.6 was intended to disqualify claimants



                                          5
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.
(Emphasis added.) The Supreme Court concluded that, “[a]bsent clear language or
legislative intent to disqualify claimants sentenced to home confinement, and
considering the remedial purposes underlying the UC Law, we hold that Section
402.6’s preclusion of benefits does not apply to claimants on house arrest.” Id.
(Footnote omitted.)
             Although Claimant was available for work Monday through Friday,
that is not the dispositive issue. In determining the intent of the General Assembly,
the Chamberlain court twice quoted the legislative sponsor of Section 402.6 as
stating (presumably with reference to the Greer holding) that it was “not right” for
a convicted prisoner to receive benefits, even if he was available for work release.
Thus, the decision in Chamberlain makes clear that the applicability of Section
402.6 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. It quoted Commonwealth v. Kriston, 588 A.2d 898 (Pa. 1991),
wherein it stated, in a different context, that “[t]he plain and ordinary meaning of
imprisonment is confinement in a correctional or other rehabilitative institution,
not staying at home.” Id. at 899 (emphasis in original). Here, there is no question
that during the weeks at issue Claimant was incarcerated in a correction facility,
albeit not every day. Therefore, under the plain mandate of the statute, Claimant is
ineligible for benefits and, accordingly, we affirm the decision of the Board.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge


                                          6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Javier Gonzalez,                        :
                        Petitioner      :
                                        :
                   v.                   :     No. 1825 C.D. 2014
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


            AND NOW, this 18th day of August, 2015, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
