Harmon v. Unemployment Comp. Bd. of Review

[J-62-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

DANIEL HARMON, : No. 37 EAP 2017
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on 06-
: 07-2017 at No. 787 CD 2015 affirming
v. : the decision entered on 4-15-2015 by
: the Unemployment Compensation
: Board of Review at No. B-577458.
UNEMPLOYMENT COMPENSATION :
BOARD OF REVIEW, :
:
Appellee : ARGUED: September 25, 2018

Justice Dougherty delivers the opinion of the Court as to Parts I, III and IV
and an opinion joined by Justices Baer and Todd as to Part II.

OPINION

JUSTICE DOUGHERTY DECIDED: April 26, 2019
I. Background

We granted discretionary review to determine whether the Commonwealth Court

erred in holding appellant Daniel Harmon was disqualified from receiving unemployment

compensation benefits pursuant to Section 402.6 of the Unemployment Compensation

Law (the Law), 43 P.S. §802.6(a) (“[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”). We hold appellant, who was serving a

sentence of incarceration on weekends only, was not disqualified from receiving

unemployment compensation benefits, and we therefore reverse the order of the

Commonwealth Court.
 Appellant was a part-time employee at Brown’s Shop Rite beginning on February

14, 2013. N.T. 9/24/14 at 4. On December 18, 2013, he was convicted of driving with a

suspended license1 and sentenced to a term of 60 days’ imprisonment to be served on

30 consecutive weekends, beginning on March 14, 2014 and ending on August 7, 2014.

Id. at 7-8. Appellant’s employment with Brown’s Shop Rite was terminated on March 24,

2014 due to a violation of company policy, which was unrelated to his incarceration. Id.

at 4. He then filed for benefits and received them for the week ending March 29, 2014

through the week ending July 26, 2014. Id. at 7. This period included weeks when

appellant was serving his sentence of weekend incarceration.

On August 8, 2014 (after appellant had completed serving his sentence), Andrea

Quirk, an Unemployment Compensation Claims Examiner from the Erie Unemployment

Compensation Service Center (Service Center), conducted an investigation based on

information received from “the cross match system” to determine whether appellant was

incarcerated due to a conviction in the Philadelphia County Prison System when he was

receiving benefits. Id. at 1, 6. Ms. Quirk did so because Section 402.6(a) of the Law

provides “[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.” Id. at 7; 43 P.S. §802.6(a). Upon Ms. Quirk’s determination appellant had

received benefits in weeks “during which” he was incarcerated, appellant was ordered to

refund the $2,925.00 in benefits he had received. It was also determined appellant’s

failure to disclose his incarceration himself resulted in fault overpayment under Section

1 75 Pa.C.S. §1543(b)(1).

[J-62-2018] - 2
804(a) of the Law, 43 P.S. §874(a), such that he was assessed a penalty of $483.75 and

disqualified from receiving benefits for an additional 17 penalty weeks.2 Id.

On appeal, Unemployment Compensation Referee Debbie Wallace held a hearing

on September 24, 2014. Id. at 1. Ms. Quirk testified appellant received an Unemployment

Compensation Handbook which clearly states a claimant is ineligible for benefits for

weeks during which he is incarcerated due to a conviction, and appellant’s failure to

disclose his incarceration amounted to knowingly withholding information. Id. at 9.

Appellant testified he had not read the entire Handbook. Moreover, he testified that while

serving his sentence he would report to the prison at 5:00 p.m. on Friday evenings and

was released every Sunday at 3:00 p.m., and therefore was available to work on

weekdays, so he did not knowingly withhold information from Unemployment

Compensation authorities. Id. at 5-6. After the hearing, Referee Wallace issued a

decision affirming the Service Center’s determination, ruling “Section 402.6 of the Law

makes the [appellant] ineligible for benefits due to his conviction and incarceration during

the weeks at issue in this appeal.” Referee’s Decision, 9/26/14 at 2.

On further appeal to the Unemployment Compensation Board of Review (Board),

appellant argued his weekend confinement did not render him ineligible for benefits under

Section 402.6 because his incarceration was not continuous and he continued to be

available for work despite that incarceration. The Board nevertheless agreed with the

2 These penalties were assessed upon appellant pursuant to Section 801 of the Law, 43
P.S. §871, which governs penalties for making false statements and representations in
an attempt to obtain or increase compensation. Section 804(a) governs monetary
penalties while Section 804(b) governs “penalty weeks,” which amount to a
disqualification from receiving benefits in future claim weeks. The finding of fault
overpayment and the assessment of penalties, however, are not at issue in this appeal
as they were later nullified by Unemployment Compensation Referee Debbie Wallace and
the Unemployment Compensation Board of Review. See Referee Decision, 9/26/14 at
2; Board Decision, 4/15/15 at 1-2.

[J-62-2018] - 3
lower tribunals that appellant was disqualified from receiving benefits. The Board relied

on Kroh v. UCBR, 711 A.2d 1093 (Pa. Cmwlth. 1998) (claimant disqualified under Section

402.6 for weeks he was incarcerated but eligible for work release), and further held Kroh

was not undermined by the Commonwealth Court’s more recent decision in Chamberlain

v. UCBR, 83 A.3d 283 (Pa. Cmwlth. 2014) (Chamberlain I) (claimants sentenced to house

arrest not disqualified under Section 402.6). Board Decision, 4/15/15 at 1-2.3

Appellant then filed an appeal with the Commonwealth Court, arguing Section

402.6 does not bar his recovery of benefits. Appellant primarily claimed the statute was

unambiguous and does not disqualify claimants who are incarcerated only on weekends,

and who are therefore not incarcerated “during” the entire week. Appellant’s

Commonwealth Court Brief at 10-13. Alternatively, appellant argued any ambiguity

should be resolved in his favor as Section 402.6 was enacted solely to prohibit

incarcerated individuals who are eligible for work release from improperly receiving

benefits and, as such, the statute does not “clearly and plainly exclude” him from receiving

benefits. Id. at 13-14, 17-19. Appellant additionally argued the Board’s interpretation of

Section 402.6 was inconsistent with one of the purposes behind his sentence of weekend

confinement — to “work and search for work.” Id. at 16 (emphasis in original), citing 42

Pa.C.S. §9755(c).

In response, the Board argued “during” has dual definitions and it was “entirely

reasonable from a language standpoint for the Board to disqualify a claimant for being

incarcerated for two days during a week[.]” Board’s Commonwealth Court Brief at 10

(emphasis added). The Board contended appellant’s “attempt to qualify the applicability

of Section 402.6 with a durational requirement . . . [went] beyond the plain language of

3 Following the Board’s decision herein, this Court affirmed the Commonwealth Court’s
decision in Chamberlain I. See Chamberlain v. UCBR, 114 A.3d 385 (Pa. 2015)
(Chamberlain II). We discuss Chamberlain II in more detail infra.

[J-62-2018] - 4
the statute and of the legislative history, and the case law interpreting it.” Id. at 16-17.

Additionally, the Board argued Chamberlain v. UCBR, 114 A.3d 385 (Pa. 2015)

(Chamberlain II), determined “the type of confinement [ ] controlled the application of the

disqualifying provision” and did not mention a durational requirement. Id. at 19.

A divided Commonwealth Court, sitting en banc, affirmed in a published opinion.4

Harmon v. UCBR, 163 A.3d 1057 (Pa. Cmwlth. 2017). The majority first held the word

“during” in Section 402.6 is ambiguous as it can either mean “‘throughout the duration

of,’” which would require a claimant to be incarcerated for an entire week to be ineligible

for benefits, or “‘at a point in the course of[,]’” which would require only that a claimant be

incarcerated at some point in a claim week. Id. at 1061, quoting MERRIAM W EBSTER’S

COLLEGIATE DICTIONARY 360 (10th ed. 1997). The majority noted the Board relied on the

definition of “during” that would bar a claimant’s recovery as long as he is incarcerated at

some point in a claim week, and as the Board was the agency charged with administering

the statute, its interpretation must be given deference. Id. at 1061-62, citing Summit

School, Inc. v. Dep’t of Education, 108 A.3d 192, 198 (Pa. Cmwlth. 2015) (administrative

agency’s interpretation of statute given deference unless clearly erroneous).

The majority then opined Chamberlain II, where this Court held claimants

sentenced to house arrest were not barred from receiving benefits under Section 402.6,

did not mandate a different result. The majority noted “[t]he principles developed in

Chamberlain[II] . . . demonstrate that the applicability of Section 402.6 of the Law depends

upon whether a claimant was incarcerated within the meaning of the Law” and there was

no dispute here that appellant was incarcerated, unlike individuals on house arrest. Id.

4 Judge Brobson authored the majority opinion, which was joined by Judges Simpson,
Covey, and Hearthway. President Judge Leavitt filed a dissenting opinion, which was
joined by Judges Wojcik and Cosgrove; Judge Cosgrove also filed a dissenting opinion,
which was joined by President Judge Leavitt and Judge Wojcik.

[J-62-2018] - 5
at 1063-64. The majority observed appellant’s sentence was “different from the sentence

of home confinement at issue in Chamberlain [II], because [appellant] was confined, at

least part of the week, in a correctional facility at the expense of taxpayers.” Id. at 1064.

As such, the majority held appellant’s sentence was “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.” Id.

The majority also rejected appellant’s argument the Board’s interpretation of

Section 402.6 was overly punitive and in contravention of the remedial purpose of the

Law. Id. at 1064. The majority concluded appellant was unequivocally excluded by the

plain language of Section 402.6 due to his incarceration, no matter the extent of his

confinement. Id. Finally, the majority held the Board’s interpretation of Section 402.6 as

“creat[ing] a collateral civil consequence to incarceration” was reasonable and not clearly

erroneous and appellant’s arguments “in support of an alternative construction . . . [were]

not sufficiently compelling to override the deference afforded to the Board.” Id. at 1066.

In dissent, President Judge Leavitt agreed the word “during” was ambiguous, but

stated she would have resolved such ambiguity in favor of appellant which is more

consistent with the remedial nature of the Law and the narrow construction of its

disqualification provisions. Id. at 1067, 1069 (Leavitt, P.J., dissenting). President Judge

Leavitt also stated it was inappropriate for the majority to accord deference to the Board’s

interpretation because its decision “did not address the meaning of the word ‘during[,]’”

but instead “focused solely on the word ‘incarcerated.’” Id. at 1069. Furthermore,

President Judge Leavitt disagreed with the majority’s “supposition that [appellant] was in

a ‘work release’ program” as he was not living at taxpayer expense, like those on work

release, but instead bore “the burden of maintaining a place to live, securing

transportation and providing for all the necessities of life.” Id. at 1069-70. As such,

[J-62-2018] - 6
President Judge Leavitt relied on Chamberlain II and the Commonwealth Court’s decision

in Kroh to conclude Section 402.6 was meant to disqualify only individuals on work

release because they were already living at the expense of the taxpayer and should not

also receive benefits under the Law. Id. at 1069, citing Chamberlain II, 114 A.3d at 396;

Kroh, 711 A.2d at 1096. Because appellant, much like the claimant in Chamberlain II,

had to pay his own living expenses, President Judge Leavitt would have found him eligible

to receive benefits. Id. at 1069-70.

Judge Cosgrove joined President Judge Leavitt’s dissent in full, and wrote

separately to provide an additional reason for adopting appellant’s interpretation of

Section 402.6 — namely, the fact the sentencing judge imposed a sentence of weekend

confinement based on appellant’s rehabilitative needs. Id. at 1071 (Cosgrove, J.,

dissenting), citing 42 Pa.C.S. §9721(b) (directing judges to consider rehabilitative needs

at sentencing). According to Judge Cosgrove, weekend confinement was particularly

tailored to appellant’s rehabilitative needs because it allowed him to “remain employed

during the normal workweek” and the receipt of benefits “would have supported [his]

rehabilitation[.]” Id. Judge Cosgrove observed “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.” Id.

Appellant sought allowance of appeal and we granted review of the following

questions:

a. Did the Commonwealth Court inappropriately expand the concept of
administrative deference by evaluating the Board's litigation posture for
clear error, so that Commonwealth agency decisions will essentially
become unreviewable?

[J-62-2018] - 7
 b. Did the Commonwealth Court misconstrue and misapply this Court's
holding in Chamberlain [II] by applying it to disqualify anyone who is
serving a sentence of incarceration?
c. Does Section 402.6 of the Unemployment Compensation Law contain
a durational requirement such that only claimants who are incarcerated
for the entire claim week in question are disqualified?

Harmon v. UCBR, 175 A.3d 217 (Pa. 2017) (per curiam). We are presented with

questions of law pertaining to statutory interpretation, and our scope of review is plenary

and non-deferential. A.S. v. Pa. State Police, 143 A.3d 896, 903 (Pa. 2016).

The parties’ arguments before this Court mirror those presented to the

Commonwealth Court, and primarily focus on the meaning of “during” as used in Section

402.6. The word appears to be capable of more than one meaning in the statutory

context: appellant claims the statute requires incarceration throughout an entire given

week before he is barred from receiving benefits, while the Board argues confinement at

any time in a given week bars such recovery. Moreover, the word is not defined within

the Law, so we may consider its “common and approved usage.” Chamberlain II, 114

A.3d at 394, citing 1 Pa.C.S. §1903; Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011).

As reflected in the parties’ contrary positions, the dictionary defines “during” as both

“[t]hroughout the course or duration of” or “[a]t some time in.” See AMERICAN HERITAGE

COLLEGE DICTIONARY 427 (3d. ed. 2000). The word as used in Section 402.6 is thus

obviously “susceptible to two or more reasonable interpretations,” and as such it is

ambiguous. Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 105 A.3d 1188, 1193

(Pa. 2014). In determining which meaning of “during” applies to Section 402.6, we must

therefore ascertain the intent of the General Assembly by following the dictates of the

Statutory Construction Act, 1 Pa.C.S. §§1501-1991.

II. Administrative Agency Deference

[J-62-2018] - 8
 In our effort to ascertain the General Assembly’s intent with regard to the meaning

of “during” in Section 402.6, we must decide whether or not the Board’s interpretation is

relevant to that analysis and, as such, whether the Commonwealth Court erred in

according any deference to the Board’s interpretation. See Harmon, 163 A.3d at 1066

(“Board’s interpretation of Section 402.6 of the Law is not clearly erroneous, and it is

entitled to deference. [Appellant’s] arguments in support of an alternative construction . . .

are not sufficiently compelling to override the deference afforded to the Board”).

Appellant argues the majority below erred by giving deference to the Board’s

interpretation of Section 402.6 as “this Court [has] held that no deference should be

accorded to administrative interpretations offered for the first time in litigation,” and the

Board first interpreted the word “during” in its brief to the Commonwealth Court.

Appellant’s Brief at 14, citing Malt Beverage Distributors Ass’n v. Pa. Liquor Control Bd.,

974 A.2d 1144, 1154 (Pa. 2009). Appellant contends deference is warranted only where

the administrative agency “had espoused its interpretation prior to litigation through some

type of policy statement or regulation.” Id. at 16. Ultimately, appellant agrees with

President Judge Leavitt who, in her dissent below, “pointed out that the Board did not

even consider the ambiguity of the word ʽduring’ in its decision” and, as such, “‘it is

impossible to give [the Board’s] holding any deference.’” Id. at 18, quoting Harmon, 163

A.3d at 1069 (Leavitt, P.J., dissenting).

In response, the Board argues the Commonwealth Court appropriately gave

deference to its interpretation. The Board disputes appellant’s assertion such

interpretation was developed only for purposes of the instant litigation as “the Board has

consistently denied benefits for post-conviction incarceration regardless of the duration.”

Board’s Brief at 11. The Board cites Kroh, noting the court approved denial of benefits

for a week in which the claimant was confined for five out of seven days only. Id. The

[J-62-2018] - 9
Board further disagrees with appellant’s contention deference is warranted only where an

agency has issued regulations or policy statements because this Court has specifically

stated “‘an administrative agency’s interpretation of a statute for which it has enforcement

responsibility is entitled to substantial deference’ even where that interpretation is not

formally promulgated in regulation.” Id. at 13, quoting Borough of Pottstown v. Pa. Mun.

Retirement Bd., 712 A.2d 741, 744 (Pa. 1998). Ultimately, the Board argues its

interpretation should be given deference because of appellant’s failure “to establish that

the Board’s interpretation . . . is unreasonable or inconsistent with the Law.” Id. at 15.

In his reply brief, appellant distinguishes Borough of Pottstown as inapposite

because the agency in that case actually had established policy on the question at hand.

Appellant observes this Court “cogently demarcated the two types of rules promulgated

by Commonwealth agencies which might be entitled to deference: legislative rules and

non-legislative rules — which include both ‘interpretive rules’ and ‘statements of policy.’”

Appellant’s Reply Brief at 2, quoting Northwestern Youth Services, Inc. v. Dep’t of Public

Welfare, 66 A.3d 301, 310-11 (Pa. 2013). Appellant ultimately argues since the Board

has failed to issue any interpretive rules or statements of policy regarding the meaning of

the word “during,” the Commonwealth Court erred in giving deference to the Board’s

interpretation. Id. at 5.

It is clear that one of the factors to be considered when ascertaining the intent of

the General Assembly with regard to the meaning of statutory language is any

“[l]egislative and administrative interpretations of such statute.” 1 Pa.C.S. §1921(c)(8).

This Court has held “[a]n interpretation by the agency charged with the administration of

a particular law is normally accorded deference, unless clearly erroneous.” Harkness v.

UCBR, 920 A.2d 162, 171 (Pa. 2007). Moreover, since Harkness, we have described

two types of agency interpretations which are accorded different levels of deference.

[J-62-2018] - 10
Agency interpretations that are promulgated in published rules and regulations have been

referred to as “legislative rules” and “are accorded a particularly high measure of

deference[,]” also known as Chevron5 deference, and “enjoy a presumption of

reasonableness[.]” Northwestern Youth Services, 66 A.3d at 310-11. Non-legislative

rules, also known as “interpretive rules” or “guidance documents,” such as “manuals,

interpretive memoranda, staff instructions, policy statements, circulars, bulletins,

advisories, [and] press releases” are accorded “a lesser quantum of deference[,]” also

known as Skidmore6 deference, which allows an agency’s interpretation to be

disregarded when a court is “‘convinced that the interpretative regulation adopted by an

administrative agency is unwise or violative of legislative intent.’” Id. at 310-12, quoting

Pa. Human Relations Comm’n v. Uniontown Area School District, 313 A.2d 156, 169 (Pa.

1973). Notably, although we have considered these varied situations where agency

interpretations inform our statutory construction analysis, and have ascribed some

measure of value to those interpretations under certain circumstances, we have never

held the agency’s opinion is binding on this Court, and of course it is not.7 Indeed, we

have declined to accord any deference to an agency’s interpretation of a statute where

“there is nothing in the record indicating that the [agency] had considered and decided

5 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45
(1984).
6 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
7 To the extent the concurring opinions of Justice Donohue and Justice Wecht suggest
affording any amount of deference to agency interpretations is always improper, we
observe our precedent clearly authorizes our approach and no party has presented an
argument that those decisions should be overruled. Respectfully, we do not ascribe
“unqualified deference” to agency opinion. See Concurring Opinion, slip op. at 2 (Wecht,
J.). Similarly, we do not “abdicate our judicial role” by according appropriate weight to our
own precedent. See Concurring Opinion, slip op. at 4 (Donohue, J.). Our analysis reflects
the current state of Pennsylvania law.

[J-62-2018] - 11
[the] issue at a point prior to the instant litigation.” Malt Beverage Distributors Ass’n, 974

A.2d at 1154. As the Board has never formally explained its view of the meaning of the

word “during” in Section 402.6 prior to the instant litigation, we agree with appellant that

the Commonwealth Court erred in according any deference to the Board’s arguments

contained in litigation-related filings.8

We recognize the Board cites Kroh and other cases where individuals were denied

benefits on the basis of post-conviction incarceration, regardless of its duration, for the

proposition it has considered and taken a position on the meaning of “during” long before

the instant litigation, but careful review reveals the dispute in those cases was over

whether an individual was “incarcerated” for purposes of Section 402.6, and the meaning

of the word “during” was never actually discussed. Furthermore, the Board’s reliance on

Borough of Pottstown as an example of this Court according deference to an agency’s

view in the absence of formally promulgated rules and regulations is misplaced. In that

case, the Pennsylvania Municipal Retirement Board did rely on an interpretive rule —

namely, its “policy that [excess interest] only becomes due to be credited to municipal

and member accounts on December 31st of any given year, and a municipality that

withdraws before that date will not receive excess interest for that year” — and such

interpretive rule was correctly accorded deference because there was no indication it

8 We acknowledge Chief Justice Saylor’s apt observation regarding the Board’s
“adjudicative role at the time it proffered its interpretation” and how that role informs our
deference to such an interpretation. Concurring Opinion, slip op. at 1 (Saylor, C.J.). In
this case, however, the Board did not address the meaning of the word “during” as used
in Section 402.6 in its adjudication, but based its decision solely on cases interpreting the
meaning of the word “incarceration.” Board Decision, 4/15/15 at 1, citing Chamberlain I;
Kroh. It was not until the Board filed its brief with the Commonwealth Court — clearly in
the course of the instant litigation — that it offered its interpretation of the word “during.”
As a result, the question of how much deference is “due to an agency’s interpretation of
a statute rendered while acting in an expert capacity during the course of an adjudication”
is not directly implicated here. Concurring Opinion, slip op. at 1 (Saylor, C.J.), citing
ARIPPA v. PUC, 792 A.2d 636, 660 (Pa. Cmwlth. 2002).

[J-62-2018] - 12
violated legislative intent. Borough of Pottstown, 712 A.2d at 742, 744. See also

Northwestern Youth Services, 66 A.3d at 310-312, citing Skidmore, 323 U.S. at 140.

Here, however, the Board has no formal policy or other statement of the kind that properly

warrants some level of deference, only its arguments in briefs prepared for litigation.

As the Board has never promulgated its current interpretation in published rules

and regulations and there is nothing in the record to suggest the Board interpreted the

word in guidance documents, the facts in this case more closely track those in Malt

Beverage Distributors Ass’n, and no deference is warranted. The Commonwealth Court

majority erred in this regard.

III. Other Factors Relevant to Statutory Construction

The second and third issues presented are intertwined, and we consider

Chamberlain II in our effort to discern the General Assembly’s intent when using the word

“during” in Section 402.6. First, appellant refers to the comments of State Representative

William Lloyd in support of the amendment creating Section 402.6. The representative

observed, in pertinent part: “‘[I]t 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. The businessman in my district and the 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.’” Chamberlain II, 114 A.3d at 391, quoting Statement of

Representative William Lloyd, 1996 Pa. Legis. Journal, House, p. 835 (May 13, 1996).

Appellant notes this Court recognized “Representative Lloyd’s comment ‘suggests that

Section 402.6 was enacted to . . . preclud[e] unemployment compensation benefits to

those claimants who are incarcerated in prison and eligible for work release.’” Appellant’s

Brief at 25, quoting Chamberlain II, 114 A.3d at 396. Appellant contends these

statements by Representative Lloyd and the Chamberlain II Court support his claim he is

[J-62-2018] - 13
not disqualified from receiving benefits under Section 402.6 because his sentence of

weekend confinement is materially different from work release since he is not

continuously incarcerated each night but is free from the custody and control of the state

for the majority of the week and nothing in the legislative history supports a finding that

the General Assembly intended to disqualify individuals in this situation. Id. at 26.

Appellant further argues the Commonwealth Court’s decision was inconsistent

with the remedial nature of the Law and ignored Pennsylvania’s jurisprudence holding

disqualification provisions should be narrowly interpreted such that an individual should

only be denied benefits by explicit language which clearly and plainly excludes him. Id.

at 28, citing Gladieux Food Services, Inc. v. UCBR, 388 A.2d 678, 682 (Pa. 1978)

(provisions precluding receipt of benefits should be narrowly interpreted); Bliley Electric

Co. v. UCBR, 45 A.2d 898, 904 (Pa. Super. 1946). Moreover, appellant contends the

Commonwealth Court’s reading of Chamberlain II undermines the remedial purpose of

the Law. In support of this argument, appellant quotes the following passage from

Chamberlain II: “‘Absent 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. at 29, quoting Chamberlain II, 114 A.3d at 396. As such, appellant

asserts the “blanket and punitive” holding of the majority below is in conflict with the

rationale of Chamberlain II and its “establish[ment of] statutory interpretation principles

for Section 402.6 that require benefits to be granted.” Id. at 23.

Appellant also argues the majority below misconstrued the Law’s declaration of

public policy and its stated purpose of alleviating economic insecurity and preventing

[J-62-2018] - 14
indigency during unemployment. Id. at 28, citing 43 P.S. §752.9 Specifically, appellant

claims the majority erroneously introduced “the concept of ‘collateral consequences’ into

the [L]aw without any support from the legislative history of Section 402.6” and in

contravention of the Superior Court’s pronouncement that “‘[u]nemployment

compensation cannot be administered upon vague theories imported from other and

unrelated realms of the law.’” Id. at 29-30, quoting MacFarland v. UCBR, 45 A.2d 423,

425 (Pa. Super. 1946). According to appellant, “Section 3 focuses on fault as it applies

to the reason for the unemployment” and using his incarceration “[t]o apply the concept

of ‘fault’ as disqualifying when the conduct [had] no bearing on [his] employment,

contravenes the purpose of the law.” Id. at 30-31 (emphasis in original).

Finally, appellant argues the Commonwealth Court’s interpretation of Section

402.6 is inconsistent with the purposes behind his criminal sentence of partial

9 Section 3 of the Law, 43 P.S. §752, provides 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. 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.

43 P.S. §752.

[J-62-2018] - 15
confinement, two of which are to allow him “‘[t]o work at his employment’” and “‘[t]o seek

employment.’” Id. at 31-32, quoting 42 Pa.C.S. §9755(c). See also 34 Pa. Code §65.11

(detailing work search requirements for maintaining eligibility under the Law). Appellant

observes that sentences which “permit individuals to remain connected to the workforce

are imperative for rehabilitation purposes” and a narrow interpretation of Section 402.6

conforms to “the rehabilitative purposes of the partial confinement sentencing provision.”

Id. at 33-34.10

In response, the Board argues the legislative history of Section 402.6 supports its

interpretation as “Representative Lloyd did not limit the reach of his amendment to the

work release context[,]” but “specifically described his amendment using much broader

language, stating that ‘this amendment says that someone who is incarcerated after a

conviction does not receive unemployment compensation benefits.’” Board’s Brief at 21,

quoting Statement of Representative William Lloyd, 1996 Pa. Legis. Journal, House, p.

835 (May 13, 1996). The Board also points to the title (“Ineligibility of Incarcerated

Employe”) and purpose (“Providing for ineligibility of incarcerated employe”) of Section

402.6 to support its contention the General Assembly intended “that Section 402.6 of the

10 The Defender Association of Philadelphia filed an amicus curiae brief supporting
appellant as did Community Legal Services, Inc., The National Employment Law Project,
The Public Interest Law Center, and The Homeless Advocacy Project (Community Legal
Services), collectively. They too view the Board’s interpretation of Section 402.6 as
inconsistent with the reasoning behind appellant’s criminal sentence. The Defender
Association contends the Board’s interpretation will cause courts to be less likely to
impose sentences of partial confinement and defendants to be less likely to plead guilty,
and also could lead to individuals losing unemployment benefits when they are detained
based on errors by the probation department. Defender Association’s Brief at 4-11.
Community Legal Services argues the Board’s interpretation would be counterproductive
to the rehabilitative goals set by the sentencing judge and wrongly ties a collateral
consequence to an individual’s sentence. Community Legal Services’ Brief at 9-11.

[J-62-2018] - 16
Law broadly applies to persons incarcerated after a conviction, and is not limited to the

work release context.” Id.

The Board reiterates its argument the Commonwealth Court correctly deferred to

its interpretation as it is reasonable and not clearly erroneous. Id. at 20. The Board also

argues accepting appellant’s interpretation would render Section 402.6 “mere

surplusage” as anyone who is incarcerated for a full week is already ineligible to receive

benefits based on the traditional “able and available” analysis. Id. at 23. The Board

further contends its interpretation comports with other disqualification provisions in the

Law, most notably Section 402,11 where “the disqualification applies for the whole week

11 Section 402 of the Law states, in relevant part, the following:
An employe shall be ineligible for compensation for any week . . .
(a) In which his unemployment is due to failure, without good
cause, either to apply for suitable work . . . or to accept
suitable work . . .
(b) In which his unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling
nature . . .
(d) In which his unemployment is due to a stoppage of work,
which exists because of a labor dispute . . .
(e) In which his unemployment is due to his discharge or
temporary suspension from work for willful misconduct
connected with his work . . .
(e.1) In which his unemployment is due to discharge or
temporary suspension from work due to failure to submit
and/or pass a drug test . . .
(h) In which he is engaged in self-employment . . .
(j) In which the employe fails to participate in reemployment
services[.]
43 P.S. §802.

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regardless of what day of the week the [disqualifying] incident occurs.” Id. at 23-24, citing

43 P.S. §802(a), (b), (d), (e), (e.1), (h), (j).

Lastly, the Board argues its interpretation does not contravene the remedial

purpose of the Law as its interpretation “is no more punitive than other mandatory

disqualifications” and the principles of liberal and broad construction “cannot be used to

interpret a provision in such a way as to render it surplusage[,] . . . [n]or can [they] override

a statutory interpretation that effectuates clear legislative intent.” Id. at 26-27 (internal

citations omitted). In connection with this argument, the Board disagrees with appellant’s

assertion Chamberlain II established statutory construction principles indicating benefits

ought to be granted, and instead claims Chamberlain II recognized Section 402.6

changed the legal landscape of the Law by disqualifying those who are incarcerated due

to a conviction. Id. at 16, citing Chamberlain II, 114 A.3d at 396. The Board ultimately

argues since appellant concedes he was incarcerated due to a conviction, he is

disqualified from receiving benefits. Id. at 17.

In his reply brief, appellant disagrees with the Board’s suggestion his interpretation

would render Section 402.6 “mere surplusage.” Appellant’s Reply Brief at 5-6. In fact,

appellant contends his interpretation allows Section 402.6 to address the exact mischief

the General Assembly sought to remedy — precluding incarcerated individuals who are

eligible for work release and thus are “able and available” to work from also receiving

benefits. Id. at 6. Appellant insists the Board’s reliance on Section 402 is misplaced as

that provision uses the word “in” any week rather than “during” any week to define

ineligibility in those enumerated circumstances. Id. at 10, citing 43 P.S. §802.

Our analysis of the meaning of “during” in Section 402.6 is guided by the Statutory

Construction Act, 1 Pa.C.S. §§1501-1991, which “directs courts to ascertain and

effectuate the intent of the General Assembly.” A.S., 143 A.3d at 903, citing 1 Pa.C.S.

[J-62-2018] - 18
§1921(a). Although “[t]he statute’s plain language generally provides the best indication

of legislative intent[,]” where, as here, the statutory language at issue “is determined to

be ambiguous [ ] we may go beyond the text and look to other considerations to discern

legislative intent.” Id. (internal citations and quotations omitted). Such considerations

include, inter alia, the occasion and necessity for the statute, the mischief to be remedied,

the consequences of a particular interpretation, and the contemporaneous legislative

history. 1 Pa.C.S. §1921(c). Furthermore, we are to assume, inter alia, the General

Assembly intended the entire statute to be effective and did not intend a result that is

absurd, impossible of execution or unreasonable. 1 Pa.C.S. §1922.

We recently discussed the occasion and necessity for the Law and the mischief

that Section 402.6 was intended to remedy, which includes the contemporaneous

legislative history, in Chamberlain II, and we reiterate that discussion here:
The UC Law was enacted to alleviate the economic insecurity resulting
from unemployment, which is a serious menace to the health, morals
and welfare of Pennsylvania citizens. 43 P.S. § 752 (Declaration of
public policy). The statute requires “the compulsory setting aside of
unemployment reserves to be used for the benefit of persons
unemployed through no fault of their own.” Id. “[T]he provisions of the
[UC Law] must be liberally construed to provide the broadest possible
benefits to those who experienced forced unemployment.” Renne v.
[UCBR], 453 A.2d 318, 321 n. 4 ([Pa.]1982).
Prior to the enactment of Section 402.6 in 1996, there was no specific
provision in the UC Law disqualifying an incarcerated employee from
receiving unemployment compensation benefits. Under these
circumstances, eligibility determinations were made by adhering to
Section 401(d)’s[, 43 P.S. 801(d),] requirement that the claimant is able
and available for suitable work. In Greer v. [UCBR], 392 A.2d 918 ([Pa.
Cmwlth.] 1978), a case which predated the adoption of Section 402.6 by
eighteen years, the claimant had been receiving unemployment
compensation benefits when he was incarcerated for violation of a
support order. The sentencing order placed the claimant in the prison
work release program and conditioned his release upon his either
obtaining employment or paying the support arrearages in full. While the
claimant was free to leave prison to go to work, he had to be
accompanied by prison officials for purposes of seeking a job.

[J-62-2018] - 19
Both the referee and the UCBR ruled that the claimant was ineligible for
benefits under Section 401(d)’s “able and available for suitable work”
standard, finding that he was not free to seek employment because he
could not leave the prison alone for purposes of obtaining work and, thus,
was not realistically attached to the labor force. The Commonwealth
Court in Greer reversed, finding that the claimant 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, but was unsuccessful. It
emphasized that the claimant’s release from prison was expressly
conditioned upon his obtaining employment, and the mere fact that the
claimant was required to be accompanied by a prison official when he
left the prison to find work did not warrant the denial of benefits. The
court explained that each case must be examined on its own facts, as
not all prisoners in work release programs would be eligible for
unemployment compensation benefits. Accordingly, the status of the law
prior to the enactment of Section 402.6 was that an employee
incarcerated in prison and on work release could be eligible for
unemployment compensation benefits if he was, inter alia, able and
available for work.
While the General Assembly did not act expeditiously after the
Commonwealth Court’s 1978 pronouncement in Greer, it ultimately
changed the legal landscape by amending the UC Law in 1996 to per
se disqualify from benefits those claimants who were “incarcerated after
a conviction.” The proponent of the legislation, Representative William
Lloyd, made the following illustrative comment when he offered the
amendment for a vote.
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 [compensation] 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 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.
Statement of Representative William Lloyd, 1996 Pa. Legis. Journal,
House, p. 835 (May 13, 1996).

[J-62-2018] - 20
 This comment suggests 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. See Kroh, 711 A.2d at 1096 n. 7 (noting that it could be argued
that the General Assembly’s enactment of Section 402.6 of the UC Law
“overruled” judicial decisions such as the Commonwealth Court’s
decision in Greer, which permitted a claimant incarcerated in prison and
participating in the work release program to obtain unemployment
compensation benefits).
Chamberlain II, 114 A.3d at 395-96.12 Based on this legislative history and the

differing circumstances of individuals on house arrest and those continuously

incarcerated, the Chamberlain II Court held the General Assembly did not intend for

the language of Section 402.6 to disqualify individuals serving sentences of home

confinement from receiving benefits.13

There are also stark differences between the situations of individuals who are

continuously incarcerated but eligible for work release and individuals serving a

sentence of weekend confinement only, and these differences are even more

compelling when individuals in the latter group are unemployed. As aptly stated by

President Judge Leavitt in her dissent below, “[u]nlike the incarcerated inmate on work
release, [appellant] does not live at the taxpayer expense. Other than his weekend

12 The Commonwealth Court has also acknowledged that one reason for the enactment
of Section 402.6 was that the General Assembly did not “want prisoners who were
incarcerated and living at taxpayers’ expense to receive unemployment compensation
just because they were eligible for work release.” Kroh, 711 A.2d at 1096.
13 Contrary to Justice Wecht’s assertion, our analysis does not turn on “a single floor
statement delivered by a single legislator,” see Concurring Opinion, slip op. at 4 (Wecht,
J.), but instead relies in part on the interpretation of Section 402.6 in Chamberlain II.
Moreover, we disagree with the Board’s assertion Chamberlain II held Section 402.6
disqualifies all individuals who are serving a sentence of incarceration due to a conviction.
Rather, the Chamberlain II Court held, as a disqualification provision, Section 402.6 must
be narrowly construed and, under such a construction, a sentence of house arrest did not
render a claimant incarcerated and ineligible. 114 A.3d at 396. Other than stating
disqualification provisions must be narrowly construed, the Chamberlain II Court made
no broad pronouncements regarding the application of Section 402.6.

[J-62-2018] - 21
meals from the government, he bears the burden of maintaining a place to live,
securing transportation and providing for all the necessities of life.” Harmon, 163 A.3d

1069-70 (Leavitt, P.J., dissenting). On the other hand, a work release-eligible inmate

is in the complete care and custody of the state when he or she is unemployed and,
in fact, is unable to leave the institution; there is no need for unemployment

compensation. In this context, we conclude the legislative history of the statute does

not suggest the General Assembly intended to disqualify those serving sentences of

weekend confinement from receiving benefits.

Furthermore, applying the Board’s contrary interpretation would lead to an absurd

result. For example, if a claimant was sentenced to serve 60 consecutive days of total

confinement, he would be disqualified from receiving benefits for only the eight week

period which encompassed those 60 days of incarceration. But where an individual like

appellant was sentenced to serve 60 days of weekend only confinement, the Board’s

interpretation would disqualify him from receiving benefits for a period of 30 weeks. This

result is especially absurd where two purposes of such a sentence would be to allow the

claimant to work or to seek employment while simultaneously providing for his own living

expenses. See 42 Pa.C.S. §9755(c).

Additionally, limiting the disqualification provision of Section 402.6 to individuals

who are incarcerated for an entire claim week does not render the section “mere

surplusage.” In fact, appellant’s interpretation confronts the exact mischief meant to be

remedied — preventing incarcerated individuals who are eligible for work release from

also receiving unemployment benefits. Although otherwise able and available to work

under Section 401(d) of the Law, Section 402.6 ensures those individuals are disqualified

from receiving benefits in accordance with the expressed legislative intent.

[J-62-2018] - 22
 Moreover, the Board’s interpretation does not take into account the distinguishable

language of other ineligibility provisions elsewhere in the Law, which clearly apply

regardless of the duration of the disqualifying conduct. For example, Section 402 of the

Law describes circumstances when “[a]n employe shall be ineligible for compensation for

any week . . . [i]n which” the enumerated disqualifying conduct occurs. 43 P.S. §802

(emphasis added). This particular phrasing evidences the General Assembly’s intent to

apply those provisions regardless of the duration of the disqualifying conduct, suggesting

the claimant is ineligible when the conduct occurs any time at all in a given week. See

AMERICAN HERITAGE COLLEGE DICTIONARY 684 (3d. ed. 2000) (defining “in” as “[w]ithin the

limits, bounds, or area of” when used as preposition). However, in Section 402.6 — the

provision we interpret in this appeal — the General Assembly used the phrase “during

which,” and thus signaled a different legislative intent. See Commonwealth v. Mazzetti,

44 A.3d 58, 67 (Pa. 2012) (omission of language in a similar section of a statute significant

to show different legislative intent). Such differing legislative intent makes sense as

Section 402 disqualification involves fault on the part of a claimant which may warrant

harsher treatment, i.e., making ineligibility easier to establish based on any disqualifying

conduct at all in a given week. By contrast, Section 402.6 does not apply to fault-

based conduct such as failing without good cause to apply for work, unjustifiably refusing

a suitable offer of employment, or voluntarily leaving work without a valid reason. See 43

P.S. §802. When considered in this light, it is appellant’s interpretation that is more

consistent with the purpose of the Law, namely, to prevent economic insecurity among

“persons unemployed through no fault of their own.” 43 P.S. §752 (emphasis added).

We therefore reject the Board’s position that the General Assembly intended

for Section 402.6 to disqualify claimants serving sentences of weekend-only
confinement from receiving unemployment compensation benefits. Our reading is

[J-62-2018] - 23
consistent with the remedial purpose of the Law and our prior pronouncement that
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) (internal
citations omitted).

IV. Conclusion

Accordingly, we hold the General Assembly intended “during,” as used in Section

402.6, to mean “throughout the duration of” such that the statute’s disqualification

provision applies only in circumstances where an individual is incarcerated due to a

conviction for the entire week in which he claims to be eligible to receive unemployment

compensation benefits. The Commonwealth Court erred in holding appellant was

disqualified from receiving benefits on the basis of his sentence of weekend-only

confinement.

The order of the Commonwealth Court is reversed and the matter is remanded to

the Board for further proceedings consistent with this opinion.

Jurisdiction relinquished.

Justices Baer and Todd join the opinion in full, and Chief Justice Saylor joins Parts I, III

and IV.

Chief Justice Saylor and Justices Donohue and Wecht file concurring opinions.

Justice Mundy files a dissenting opinion.

[J-62-2018] - 24