Hubbard v. Unemployment Insurance Appeal Board

352 A.2d 761, 1976 Del. LEXIS 583

Opinions

PER CURIAM:

This is an appeal from a decision of the Superior Court affirming the denial of unemployment compensation to claimant-appellant John T. Hubbard by the Unemployment Insurance Appeal Board.

Appellant was employed by Chrysler Corporation for approximately three years when, on October 23, 1973, he was incarcerated at the State Correctional Institution in Smyrna, Delaware. On December 17, 1973, while still incarcerated, appellant was rehired by Chrysler under the Institution’s Work Release Program. Four days after his return to work, however, Chrysler initiated a major cut-back due to the depressed demand for automobiles, and appellant was placed in a lay-off status along with many of 'his co-workers. He remained in this lay-off status until March 11, 1974, when he was rehired by Chrysler.

Appellant applied for unemployment compensation from the date of the lay-off. He reported to the Division of Unemployment Insurance in Wilmington on two occasions, but failed to report on January 16, 1974, the date on which he had been scheduled to report to substantiate his eligibility for compensation for the weeks, ending January 5 and January 12, 1974. In an appearance before a Claims Deputy, appellant explained that his failure to report on January 16 was caused by the lack of available transportation due to the nation-wide gasoline shortage. The Claims Deputy denied benefits because of appellant’s failure to meet reporting requirements and also because appellant was found not to have been “available for work”, within the meaning of 19 Del.C., § 3314 (3), during his incarceration.

In an appeal to an Unemployment Compensation Referee, appellant initially prevailed, the Referee finding that the reporting requirement should be waived under the circumstances, and that appellant was “available for work” while incarcerated. Upon reconsideration, the Referee issued a decision denying benefits, finding that appellant’s incarceration “was in itself restrictive of his active search for work and availability for work within the meaning of Section 3314(3),” and that the Legislature did not intend that an individual should be eligible for unemployment compensation while incarcerated.

Footnotes

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* As an additional reason for denying compensation, the Referee noted that claimant’s failure to report as instructed on January 16 “was in part due to the fact tthat he was necessarily dependent upon another to bring him to the office during his period of incarceration.”

The Unemployment Insurance Appeal Board adopted the factual findings of t'he Referee and affirmed his decision denying benefits because of appellant’s lack of availability and active search for work. Upon further appeal to the Superior Court the denial of compensation was again affirmed. The Court, applying a substantial evidence test, found that the Referee and the Board were justified in concluding that claimant was not available for work and actively seeking work within the meaning of 19 Del.C., § 3314(3), since there was no evidence in the record that, under the Work Release Program, an incarcerated individual is able to actively seek other employment generally or that 'he is available for employment throughout the employment area. In reaching its decision, the Superior Court refused to consider certain regulations of the Department of Corrections which relate to the Work Release Program. These regulations were submitted to the Court as tending to prove the availability for work of an inmate who is participating in the Work Release Program. The Court refused to consider the regulations on the ground that they were not made a part of the record at the administrative level.

We agree with the decision of the Superior Court. The only evidence in the record tending to prove either appellant’s availability for work or his active search for work during the period of incarceration was appellant’s affirmative answer to the Referee’s question of whether he was able to and available for work. Given the fact of incarceration, the Referee and Board were justified in finding that this single statement was insufficient to establish appellant’s availability for work within the meaning of 19 Del.C., § 3314(3). In any event, there is no evidence whatsoever which demonstrates that appellant actively sought other work during the time for which he seeks benefits.

Appellant now asks us to consider, as evidence of his availability for work under the Work Release Program, the regulatory guidelines for that Program which were published by the Department of Corrections. Upon appeal from a denial of unemployment benefits, the Superior Court is limited to consideration of the record which was before the administrative agency. Ashmore v. Unemployment Compensation Commission, Del.Super., 7 Terry 565, 86 A.2d 751 (1952); Delgado v. Unemployment Insurance Appeal Board, Del.Super., 295 A.2d 585 (1972); 19 Del.C., § 3323. As the regulations sought to be admitted were not a part of that record, they may not be considered now in this Court’s determination of whether the evidence supported the findings of the Referee and Board.

To the extent that the Superior Court in Henry v. Department of Labor, Del.Super., 293 A.2d 578 (1972), departed from the general rule restricting an appellate court to a review of the record, we find it inapplicable to the instant case. The Court in Henry was faced with the question of whether a petition for review of a decision of the Unemployment Insurance Appeal Board was timely made. In reaching its decision the Court considered two letters, not a part of the official record, as evidence that the time allowed for appeal had been effectively extended by the Board’s failure to timely respond to petitioner’s letter requesting rehearing. The Court therefore considered the letters to be a part of the record, since they should have been included in the record as sent up by the Board. No such circumstances exist here. The Work Release Program guidelines were not made part of the evidentiary record at the administrative level below and are not a part of the record before this Court.

The Referee’s findings of fact, affirmed by the Board, to the extent approved by the Superior Court, are supported by substantial evidence and are therefore conclusive. Unemployment Insurance Appeal Board v. Duncan, Del.Supr., 337 A.2d 308 (1975). The decision of the Superior Court is affirmed.

This latter question was not reached by the Superior Court. Similarly, it is not reached in this opinion. Compare the concurring opinion of Chancellor Quillen.