IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph T. Gontis, :

Petitioner :

:

v. : No. 1652 C.D. 2015

: Submitted: March 4, 2016

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: May 6, 2016

Joseph Gontis (Claimant) petitions for review of an adjudication of 

the Unemployment Compensation Board of Review (Board) denying his claim for 

a Trade Readjustment Allowance under the federal Trade Act of 1974 (Trade Act),

19 U.S.C. §§2101-2487.1 In doing so, the Board affirmed the decision of the 

Referee, who held that Claimant was ineligible for Trade Act benefits because his 

separation from employment was not due to a lack of work. For the reasons that 

follow, we affirm.

 

1

The Trade Act established several federal programs to provide benefits to American workers 

adversely affected by foreign competition. Showers v. Unemployment Compensation Board of 

Review, 64 A.3d 1143, 1146 n.2 (Pa. Cmwlth. 2013). The U.S. Secretary of Labor determines 

the categories of workers eligible for assistance. Id. at 1146 n.3. State unemployment 

compensation agencies have jurisdiction to determine the entitlements of individual claimants, 

and appeals from such agency determinations proceed under the applicable state law. Id.
2

Claimant was employed by PBS Coals, Inc. (Employer)2as a section 

mechanic from November 2008 until September 3, 2014. On Claimant’s final day 

of work, he either refused to take or failed a drug test. Employer told Claimant to 

go home and not return to work until Employer called him. Employer never 

called. On September 8, 2014, Claimant received a packet from Employer with 

instructions on how to maintain his Employer-provided health insurance while 

unemployed. Believing that he had been discharged, Claimant applied for Trade 

Act benefits. On April 29, 2015, the Indiana UC Service Center denied Claimant’s 

application. Claimant appealed, and a hearing was held before a Referee on June 

5, 2015. At the hearing, Claimant testified on his own behalf; Employer did not 

participate.3 

Claimant testified that Employer required all employees to take a drug 

test on September 3, 2014. The following day, Employer “laid off everybody” 

except Claimant, who was discharged. Notes of Testimony, 6/5/2015, at 5 (N.T. 

___). The Referee questioned Claimant further regarding Employer’s actions:

[Referee]: So every miner had to get a drug test around 

September 3rd, 2014?

[Claimant]: Yes.

[Referee]: So none of your co-workers went back to work but 

they discharged you?

[Claimant]: They said they would call me in three days. Yes 

they would get back to me in three days.

 

2

For reasons unknown to this Court, Employer is also interchangeably referred to as Rox Coal 

throughout the record and parties’ briefs.

3

Even though Employer did not participate, two representatives of the Indiana UC Service 

Center testified in opposition to Claimant’s application for Trade Act benefits.
3

***

[Referee]: And you’re saying 190 [employees] went for drug 

tests on September 3rd, 2014 and no one came back to work?

[Claimant]: No they came back to work. Some of them did and 

some of them didn’t. Some of them went home and they were 

told to go home for a couple days and then some of them just 

went back to work.

[Referee]: Okay because I thought you originally said that they 

closed the mine down on September 3rd.

[Claimant]: Well I don’t know about that now because 

(inaudible) close the mine down.

N.T. 6-7. 

On June 10, 2015, the Referee issued a decision finding Claimant 

ineligible for Trade Act benefits and denying Claimant’s application. The Referee 

found that “[C]laimant was not separated due to lack of work, but a purported 

refusal or failed substance abuse test.” Referee’s Decision at 1, Finding of Fact 

No. 5.4 Claimant appealed. On review, the Board agreed with the Referee that 

Claimant did not meet his burden of showing that he was separated due to a lack of 

work, which is a prerequisite for Trade Act benefits. Claimant petitioned for this 

Court’s review.

On appeal,5 Claimant argues that the Board erred in concluding that 

he was not laid off due to a lack of work because Employer offered no evidence 

 

4

The Referee acknowledged that there was not sufficient evidence to demonstrate that Claimant 

was discharged for willful misconduct. We note that Claimant was deemed eligible for 

unemployment benefits in a separate proceeding. 

5 On review, this Court must determine whether the Board’s decision is supported by substantial 

evidence, errors of law were committed, or constitutional rights were violated. Moore v. 

Unemployment Compensation Board of Review, 520 A.2d 80, 82 (Pa. Cmwlth. 1987).
4

that it was justified in discharging Claimant.

6

Essentially, Claimant is arguing that 

Employer manufactured a reason to fire him so it could avoid laying him off.7 The 

Board counters that it did not err in denying Trade Act benefits because Claimant 

did not meet his burden of demonstrating he was laid off. According to the Board, 

it is irrelevant for purposes of the Trade Act whether Claimant failed or refused to 

take a drug test. Rather, the finding of the Board most critical to this appeal is that 

Claimant was discharged, not laid off. Having reviewed the record and the parties’ 

arguments, we agree with the Board.

Section 231(a) of the Trade Act allows the payment of benefits to 

“adversely affected worker[s].” 19 U.S.C. §2291(a). Section 247 of the Trade Act 

defines an “adversely affected worker” as “an individual who, because of lack of 

work in adversely affected employment, has been totally or partially separated 

from such employment.” 19 U.S.C. §2319(2) (emphasis added). The burden is on 

the claimant to prove that he was separated from employment due to a lack of 

work. Zywicki v. Unemployment Compensation Board of Review, 583 A.2d 49, 50 

n.2 (Pa. Cmwlth. 1990).

 

6 Claimant also contends that the Board denied him his due process rights by not allowing him 

the opportunity to confront Employer regarding its assertion that he refused to take or failed a 

drug test. This is not a due process challenge, but rather a Sixth Amendment “confrontation 

clause” challenge. However, because the Sixth Amendment applies only in criminal cases, this 

argument is meritless. See In re Adoption of T.M.F., 573 A.2d 1035, 1041 (Pa. Super. 1990).

7 We note that Claimant does not argue in his brief that the Board erred in denying his

application for Trade Act benefits. Instead, Claimant’s brief makes multiple references to the 

Board denying Claimant unemployment benefits. See Claimant’s Brief at 10 – 11. Claimant

also argues that the Board erred in denying Claimant “worker’s compensation benefits.” 

Claimant’s Brief at 9. It is unclear whether Claimant’s counsel understands that this case 

concerns Claimant’s application for benefits under the federal Trade Act as opposed to a 

different statute.
5

“The fact that the claimant was awarded Pennsylvania unemployment 

compensation benefits does not determine his entitlement to [Trade Act] benefits.” 

Mosqueda v. Unemployment Compensation Board of Review, 431 A.2d 371, 373 

(Pa. Cmwlth. 1981). As this Court has previously explained:

[T]he purpose of the [Unemployment Compensation] Law and 

the objective of the Trade Act are different. The UC Law 

provides financial assistance to displaced employees due to lack 

of work caused by Employer, whereas the Trade Act furnishes 

support to workers separated from their employment because of 

foreign competition.

Showers v. Unemployment Compensation Board of Review, 64 A.3d 1143, 1148 

(Pa. Cmwlth. 2013).

In the matter sub judice, Claimant failed to meet his burden of 

showing that he was separated from his employment because of a lack of work, 

i.e., that Employer laid him off for reasons related to foreign competition in the 

coal mining industry. The evidence of record supports a finding that Claimant was

discharged for some reason related to Employer’s drug test. For instance, 

Claimant testified that many employees who took Employer’s drug test returned to 

work. Moreover, Claimant did not receive a notice that he was being laid off. 

Instead, Claimant received an insurance continuation package that indicated he had 

been discharged.

Claimant correctly asserts that there is no evidence that he committed 

willful misconduct; however, that inquiry is only relevant to Claimant’s eligibility 

for unemployment benefits, which Claimant received in a different proceeding. In 

order to obtain Trade Act benefits, Claimant had to prove that he was laid off. 

Because Claimant failed to do so, the Board properly denied his application.
6

For all of the above reasons, the order of the Board is affirmed.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph T. Gontis, :

Petitioner :

:

v. : No. 1652 C.D. 2015

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 6th day of May, 2016, the order of the 

Unemployment Compensation Board of Review dated August 6, 2015, in the 

above-captioned matter is hereby AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge