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)1for 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). 
2

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.)
3

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 
4

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. 
5

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.
6

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 
7

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.) 
8

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.
9

Accordingly, we affirm.

__________________________________

J. WESLEY OLER, JR., Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yves A. Eliscar, :

Petitioner :

:

v. : No. 157 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 3

rd 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