           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Yves A. Eliscar,                            :
                      Petitioner            :
                                            :
              v.                            : No. 157 C.D. 2017
                                            : SUBMITTED: October 6, 2017
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE OLER, JR.                         FILED: November 3, 2017



              Yves A. Eliscar (Claimant), pro se, petitions for review of the
December 5, 2016 order of the Unemployment Compensation Board of Review
(Board), which affirmed the referee’s decision denying Claimant unemployment
compensation (UC) benefits under Section 402(e) of the Unemployment
Compensation Law (Law)1 for willful misconduct. We affirm.




       1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for
any week “[i]n which his unemployment is due to his discharge … from work for willful
misconduct connected with his work.” 43 P.S. § 802(e).
               Claimant applied for UC benefits following his separation from
employment with GCA Nuclear Facility Services (Employer). The Duquesne UC
Service Center (Department) denied benefits pursuant to Sections 402(b) and 402.6
of the Law,2 on the grounds that Claimant voluntarily quit due to being incarcerated
and that Claimant’s incarceration was the result of a conviction, respectively.
(Certified Record (C.R.), Item No. 6.)


               Claimant appealed to the referee who conducted a hearing at which
Claimant and a witness for Employer appeared and testified. At the hearing, the
referee informed the parties that he would also consider Section 402(e) of the Law,
noting that the Notice of Hearing also listed this as an issue.3 (C.R., Item No. 10,
N.T. at 11; see C.R., Item No. 9.) Subsequently, the referee issued a decision, which
affirmed as modified the Department’s determination and denied benefits under only
Section 402(e) of the Law. (C.R., Item No. 11.)


               Claimant appealed to the Board, which made the following findings of
fact:

               1.     The claimant was employed full-time with GCA
                      Nuclear Facility Services as a janitor, earning $10
                      per hour. The claimant began employment on June
                      5, 2015, and was last employed on July 13, 2016.

        2
         Section 402(b) of the Law provides that an employee shall be ineligible for benefits where
he voluntarily terminated his employment without necessitous and compelling cause. 43 P.S. §
802(b). Section 402.6 of the Law provides that an employee shall be ineligible for benefits for any
weeks in which he is incarcerated after a conviction. Section 402.6 of the Law, added by Section
2 of Act of October 30, 1996, P.L. 738, 43 P.S. § 802.6.

        3
        On his Internet Initial Claims form, Claimant asserted that he was discharged. (C.R., Item
No. 2, Question No. 10.)
                                                2
            2.     The employer maintains a company call-in
                   requirement, which all staff must adhere to,
                   specifically: … any employee who fails to call-in
                   to report an intended absence as required on at least
                   three (3) consecutive days will be considered to
                   have abandoned their employment with GCA
                   Services Group, Inc.

            3.     The claimant was aware of the employer’s company
                   call-in requirement.

            4.     On July 13, 2016, the claimant was incarcerated and
                   charged with aggravated assault in the state of
                   Delaware.

            5.     The claimant was incarcerated from July 13, 2016,
                   until his release on July 26, 2016.

            6.     The claimant did not contact the employer while he
                   was incarcerated and did not report for work during
                   this period of time.

            7.     The claimant's charges are pending, and there has
                   been no final disposition of the claimant's charges.

            8.     On July 27, 2016, the claimant contacted the
                   employer to inquire about the status of his
                   employment.

            9.     The employer considered that the claimant
                   abandoned his job in accordance with the
                   employer’s policy.
(Board’s Findings of Fact (F.F.) Nos. 1-9.)


            On December 5, 2016, the Board issued a decision and order affirming
the referee’s decision and denying benefits under Section 402(e) of the Law, 43 P.S.
§ 802(e), on the grounds of willful misconduct. Specifically, the Board determined
that Claimant violated Employer’s policy to call in absences and that Claimant did
                                         3
not establish good cause for violating the policy. The Board also determined that
Claimant did not establish proper cause for the Board to issue subpoenas that could
have been requested at the first hearing. Claimant requested reconsideration, which
was denied.


               Claimant now petitions this Court for review.4 Before this court,
Claimant raises issues pertaining to the procedure before the referee, as well as to
the merits of the Board’s determination that Claimant committed willful
misconduct.5 We will address the procedural issue first.
               Claimant argues that the referee committed an error of law by failing to
issue subpoenas to obtain records and to compel attendance of a witness. Claimant


       4
        Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.

       5
          Claimant also argues: (1) that he is entitled to remuneration equal to six times his benefit
rate under section 402(e) of the Law, 43 P.S. § 802(e), apparently referring to language taken out
of context from Section 401(f) of the Law, 43 P.S. § 801(f) (concerning qualifications to secure
compensation); (2) that Employer made false statements to prevent or reduce compensation to
Claimant and therefore violated Section 402(a)(1) of the Law, 43 P.S. § 802(a)(1) (concerning
ineligibility for compensation if one’s unemployment is due to failure, without good cause, to
apply for or accept suitable employment); (3) that Employer failed to prove that Claimant was both
convicted and incarcerated as required by Section 402.6 of the Law, 43 P.S. § 802.6.
        Claimant failed to raise these issues before the Board. (See C.R., Item Nos. 12, 14.) Failure
to raise an issue before the tribunal below is a waiver and precludes review by this Court. See Pa.
R.A.P. 1551; Schneider v. Unemployment Compensation Board of Review, 523 A.2d 1202, 1204
(Pa. Cmwlth. 1987). In any event, Claimant’s arguments are without merit. With the exception
of Section 402.6 of the Law, 43 P.S. § 802.6, none of these sections was ever at issue in this case.
Regarding Section 402.6 of the Law, 43 P.S. § 802.6, neither the referee nor the Board based the
determination of ineligibility on that section.



                                                  4
maintains that he is entitled to a remand for a hearing to develop the record.6 After
reviewing the record, we find no error or abuse of discretion. It was within
Claimant’s power to seek a subpoena,7 and we find no evidence that he did so before
the referee or that he advanced proper cause for the Board to do so when the
subpoena could have been requested at the first hearing. To order a remand under
these circumstances would allow Claimant the proverbial second bite-at-the-apple.
See Emery Worldwide v. Unemployment Compensation Board of Review, 540 A.2d
988 (Pa. Cmwlth. 1988). Moreover, Claimant seeks these subpoenas in an attempt
to prove he was not convicted. (Claimant’s brief at 12.) However, neither the referee
nor the Board ever found that Claimant was convicted. (See Referee’s F.F. at 7,
Board’s F.F. at 7.) For the foregoing reasons, Claimant’s argument regarding the
subpoenas is without merit.


                We now turn to Claimant’s arguments concerning the substantive
merits of the Board’s decision. Claimant argues that the Board erred in denying him
benefits under Section 402(e) of the Law, 43 P.S. § 802(e). Claimant maintains that
he had good cause for violating Employer’s attendance policy because he was not
able to make any phone calls while imprisoned. Claimant also argues that the
Board’s findings are not supported by substantial evidence and that Employer
provided numerous fraudulent responses.


       6
          To the extent Claimant asserts error or prejudice as a result of the referee’s consideration
of this case under Section 402(e) of the Law, 43 P.S. § 802(e), (Claimant’s brief at 3, 10), we find
none. Claimant asserted in his Internet Initial Claims form that he was discharged, and the Notice
of Hearing listed willful misconduct under Section 402(e) of the Law, 43 P.S. § 802(e), as an issue.
(C.R., Item No. 2, ¶ 10 & Item No. 9.)

       7
           See Section 506 of the Law, 43 P.S. § 826; 34 Pa. Code § 101.31.
                                                  5
             Whether an employee’s actions constitute willful misconduct is a
question of law subject to review by this Court. Reading Area Water Authority v.
Unemployment Compensation Board of Review, 137 A.3d 658, 661 (Pa. Cmwlth.
2016). For purposes of determining a discharged employee's eligibility for UC
benefits, the employer bears the burden of proving that the employee engaged in
willful misconduct connected with his work. See Section 402(e) of the Law, 43 P.S.
§ 802(e); Eshbach v. Unemployment Compensation Board of Review, 855 A.2d 943,
947 (Pa. Cmwlth. 2004). Willful misconduct has been defined as conduct that
represents a wanton or willful disregard of an employer’s interests, a deliberate
violation of the employer’s rules, a disregard of standards of behavior that the
employer can rightfully expect from its employees, or negligence indicating an
intentional disregard of the employer’s interest or an employee’s duties or
obligations. Eshbach, 855 A.2d at 947 n. 6. Where a charge of willful misconduct
is based on the violation of a work rule, the employer must prove the existence of
the rule and its violation. Eagle v. Unemployment Compensation Board of Review,
659 A.2d 60, 62 (Pa. Cmwlth. 1995). Once an employer establishes a prima facie
case of willful misconduct, the burden shifts to the claimant to prove good cause for
his or her actions. McKeesport Hospital v. Unemployment Compensation Board of
Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993).


             “Absence from work due to pre-trial incarceration is not, itself, willful
misconduct.” Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667,
671 (Pa. Cmwlth. 2010); see also Hawkins v. Unemployment Compensation Board
of Review, 472 A.2d 1191 (Pa. Cmwlth. 1984). “However, if the claimant fails to
notify the employer about the absence in violation of a work rule, the absence may


                                          6
constitute willful misconduct as a matter of law.” Bruce, 2 A.3d at 671; see also
Anderson v. Unemployment Compensation Board of Review, 564 A.2d 1046 (Pa.
Cmwlth. 1989).


              Claimant was not discharged for his incarceration; he was discharged
for violating Employer’s policy by failing to call Employer to report his intended
absence. Claimant was charged with aggravated assault and incarcerated pre-trial
from July 13, 2016, until his release on July 26, 2016. As a result, Claimant was
absent from work. Employer’s account Manager, Larry Smith, testified regarding
Employer’s call-in policy and that Claimant was aware of the policy. (C.R., Item
No. 10, N.T. at 13.) Mr. Smith testified that after Claimant was a no-call, no-show
for three days, Employer considered Claimant to have abandoned his job in
accordance with Employer’s policy.              (C.R., Item No. 10, N.T. at 10, 13.)
Additionally, Claimant admitted he was aware of Employer’s policy. (C.R., Item
No. 10, N.T. at 14.) Mr. Smith also testified that neither Claimant nor anyone on his
behalf called in to report Claimant off work, and that Employer did not know what
happened to Claimant or his whereabouts.8 (C.R., Item No. 10, N.T. at 10, 17.) This
testimony constitutes substantial evidence to support the Board’s finding that
Claimant violated Employer’s notification policy.


              Nonetheless, Claimant argues he had good cause for violating
Employer’s notification policy, because he was unable to make any phone calls


       8
         Claimant maintains that the referee did not allow him to question Mr. Smith. Our review
of the record, however, shows that the referee explained cross-examination to Claimant and gave
Claimant the opportunity to question Mr. Smith, but Claimant declined. (C.R., Item No. 10, N.T.
at 14.)
                                               7
while incarcerated.      The Board, however, specifically found that Claimant’s
testimony in this regard was not credible. (Board’s decision at 2.) It is well-settled
that the Board is the arbiter of credibility and is free to accept or reject the testimony
of any witness in whole or in part. McCarthy v. Unemployment Compensation
Board of Review, 829 A.2d 1266, 1269-70 (Pa. Cmwlth. 2003).                       Claimant’s
allegation of error is nothing more than an attempt to argue his preferred version of
the facts, and is without merit. Nor does Claimant suggest that he employed any
alternative form of communication, such as having another person call in on his
behalf or utilization of the mail while he was incarcerated. Similarly, Claimant’s
assertions that Employer made numerous false statements is without merit, because
it is within the Board’s province to determine what evidence to credit. See id.


              Claimant also argues that he is entitled to benefits pursuant to Hawkins,
which he asserts establishes an exception for willful misconduct where the
absenteeism is due to incarceration.           However, as stated, Claimant was not
discharged for his incarceration; he was discharged for his failure to call Employer
to report his intended absence in violation of Employer’s policy. In Hawkins, a third
party reported the claimant’s absence to the employer during the claimant’s period
of incarceration.     Here, Claimant’s absence was never reported to Employer.
Therefore, Hawkins is not controlling.


              Lastly, Claimant argues that Employer did not prove that it placed calls
to and left messages for Claimant prior to terminating him. However, Employer has
no duty to contact Claimant and no burden to prove that it did.9

       9
        To the extent Claimant asserts that Employer had such a duty under Section 402(a)(1) of
the Law, 43 P.S. § 802(a)(1), this argument is misplaced. See n. 5 supra.
                                              8
Accordingly, we affirm.

                          __________________________________
                          J. WESLEY OLER, JR., Senior Judge




                            9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Yves A. Eliscar,                   :
                   Petitioner      :
                                   :
            v.                     : No. 157 C.D. 2017
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :



                                 ORDER

            AND NOW, this 3rd day of November, 2017, the December 5, 2016

order of the Unemployment Compensation Board of Review is hereby affirmed.




                                   __________________________________
                                   J. WESLEY OLER, JR., Senior Judge
