DocketNumber: Appeal, No. 299 C.D. 1982
Citation Numbers: 76 Pa. Commw. 549
Judges: Craig, MacPhail, Williams
Filed Date: 8/25/1983
Status: Precedential
Modified Date: 6/24/2022
Opinion by
Reinaldo Cruz (Claimant) appeals here from a decision of the Unemployment Compensation Board of Review (Board) which adopted and affirmed the decision of a referee finding Claimant ineligible for benefits, under Section 401(d)(1) of the Unemployment Compensation Law (Law),
Claimant was incarcerated in Lehigh County Prison from June 23, 1981 to November 4, 1981. While incarcerated he applied for unemployment benefits through the mail claim procedure beginning the week ending June 27. There is no evidence that Claimant advised the Office of Employment Security (Office) of his incarceration.
Each Friday during his incarceration the prison authorities gave Father Reuben Rodriquez, Claimant’s spiritual advisor, permission to remove Claimant from jail for counseling and to allow Claimant to actively search for work. Claimant’s job search on these Fridays included visits to the Job Service Office and to various employers within the Lehigh Valley labor market.
Claimant was released from prison on November 4, 1981 and secured a job with Roof Engineers on November 10, 1981.
On November 16, 1981, the Office issued a corrected notice of determination of overpayment of benefits finding that Claimant received $639.00 in benefits to which he was not entitled covering com
Claimant challenges the Board’s decision on two bases. First, he contends that he was able to work and available for work since he was on a work-release
To resolve Claimant’s challenge that he was available for work while incarcerated, we must look to the case of Greer v. Unemployment Compensation Board of Review,
In Greer the claimant was incarcerated for violation of a support order. The Berks County Court which sentenced the claimant ordered that he be placed in the prison work-release program and conditioned his release upon either obtaining employment or paying the support order arrearages in full. The only restriction placed upon his availability for work was that he could not leave the prison alone to seek employment. In spite of his good faith efforts, claimant was unable to secure a job. In awarding claimant benefits the Court stated:
We do not today hold that all prisoners involved in work release programs are eligible for unemployment compensation. Each case must be decided on its own facts. However, where, as here, a claimant was receiving benefits at the time of his incarceration, has placed no restrictions on his availability, has shown a good faith desire to find work, coupled with the fact that his release from prison was expressly conditioned upon his obtaining employment, the mere fact that the terms of his incarceration require that he be accompanied by a prison official when he leaves to find work will not justify the denial of benefits.
Concerning the second issue, as to whether the record contains evidence of any culpability
Claimant contends that “[t]he Board’s reasoning is based on the faulty premise that it is illegal for incarcerated prisoners to seek unemployment benefits and therefore must be done surreptitiously.” It is true that being incarcerated does not necessarily mean a claimant is not entitled to unemployment compensation benefits. B.ather, the facts of each case are determinative of whether a claimant prisoner is entitled to benefits. In the instant case, the failure on Claimant’s part to inform the unemployment authorities that he was in prison makes him blameworthy, not his voluntary act of applying for benefits while incarcerated.
Clearly, a prisoner who is not able to leave prison to go to work cannot be available for work; as such, he cannot be entitled to benefits. The Claimant had a
Order affirmed.
Order
It is ordered that the order of the Unemployment Compensation Board of Review dated January 14, 1982 and numbered B-202664 is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(d)(l). Section 401(d)(1) provides, inter alia, that compensation is payable to any employee who is unemployed, who is able to work and who is available for suitable work.
43 P.S. §874.
Claimant states that if this Court questions the work-release status of the Claimant that it should remand the case to allow an affidavit of a Work Release Coordinator (Ms. Leander) of the prison to be entered on the record. This affidavit, annexed to Petitioner’s brief, states that Claimant was approved for participation in a work-release program on July 29, 1981 if he had a job offer acceptable to the trial judge. We have said on numerous occasions that matters not of record will not be considered on appellate review. It is apparent that the affidavit could have and should have been submitted at the hearing. We cannot aid the Petitioner at this stage of the proceedings. We are not a fact finder and where, as here, the facts as found by the Board are supported by substantial evidence, even though evidence was also introduced to the contrary, we are bound by the Board’s findings. Martin v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 304, 306, 387 A.2d 998, 1000 (1978). In this case, the Board received evidence from the prison that Claimant was not on a work-release program and testimony from Claimant that he was. The Board resolved this credibility issue in favor of the prison. We see no need to remand here for the presentation of more evidence on this issue since the Board was presented with both sides.
Both parties agree that this is the only case decided by this Court governing the eligibility of a claimant under Section 401(d)(1) while in prison. Our research has not disclosed any others.
The Board “must find more than a voluntary act to support a finding of fault; it must determine whether ‘blame, censure, impropriety, shortcoming, or culpability attaches’ to the appellant.” Rozanc v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 369, 371, 366 A.2d 611, 612 (1976).