Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Reinaldo H. Cruz, No. B-202664.
Thomas P. Leonard, for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 76 Pa. Commw. Page 550]
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),*fn1 and ordering that a fault overpayment in the amount of $639.00 be recouped under Section 804(a) of the Law.*fn2 We affirm.
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 compensable
[ 76 Pa. Commw. Page 551]
weeks from June 27, 1981 through October 24, 1981. The Claimant took the necessary appeals. The Board ultimately found that Claimant was not able to work nor was he available for work since "actively seeking work one day a week while incarcerated does not satisfy the basic purpose" of Section 401(d)(1) of the Law. The Board further found, based on a certified letter from a counselor employed in the treatment department of the prison, that the Claimant was never on a work-release program. The referee then determined that since Claimant withheld the fact of his incarceration from the Office that the overpayment must be recouped.
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*fn3 program and because he made a weekly job search. ...