IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colleen Dubaskas, :

Petitioner :

: No. 1543 C.D. 2016

v. :

: Submitted: March 17, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: July 3, 2017

Colleen Dubaskas (Claimant) petitions for review of the August 2, 

2016 order of the Unemployment Compensation Board of Review (Board) that 

affirmed the Referee’s decision that Claimant is ineligible for unemployment 

compensation benefits under section 402(e) of the Unemployment Compensation 

Law (Law).1 Claimant argues that the evidence was insufficient to support the 

denial of benefits. We disagree.

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 

§802(e).
2

Claimant worked as a personal care assistant (PCA) at Wyoming 

Valley West School District (Employer), providing care for special needs students 

from September 1, 2012 to her last day of work on November 18, 2015. Claimant 

was given a medical restriction by her doctor that reduced her work week from five 

days to three days. Claimant communicated this medical restriction to Employer 

and, at a meeting on November 10, 2015, Employer offered Claimant alternative 

work at one of two schools as a substitute PCA at a lower rate of pay. After 

Claimant was suspended for failing to respond to Employer’s offer, Claimant met 

with Employer’s Personnel Director, Joseph Muth (Muth), on December 18, 2015 

and discussed the alternative employment options that would accommodate 

Claimant’s medical restrictions. Employer did not offer Claimant any assignments 

as they were approaching Christmas break and told Claimant to get in touch after 

the break. Employer also reminded Claimant that she needed to update her 

clearances, which were required every four years, by the end of the year. 

(Referee’s Findings of Fact Nos. 1-7.) Claimant was told in September 2015 that 

her clearances were due by the end of the calendar year. (Original Record (O.R.) 

at Item No. 13.)

On February 5, 2016, Muth mailed a letter to Claimant stating that he

had not heard from her since before Christmas break and that her repeated failure 

to maintain contact is considered abandonment of employment and that she must 

immediately contact Employer or she would be terminated. (Referee’s Findings of 

Fact No. 12.) 

On February 10, 2016, Claimant received the letter telling her to 

contact Employer immediately around 3:30 p.m., after the end of the school day. 

On the evening of February 10, 2016, after not receiving a phone call from 

Claimant, the school board met and terminated Claimant’s employment due to 

insubordination and abandonment of employment. On February 11, 2016, a letter 
3

was mailed to Claimant to inform her of her termination. Prior to receiving the 

termination letter, Claimant called Employer on February 13, 2016 and was 

notified that she had been terminated. Claimant then received the termination 

letter dated February 11, 2016 on February 14, 2016. (O.R. at Item No. 4.) 

Claimant applied for benefits with the Department of Labor and 

Industry (Department). On May 10, 2016, the Department stated that Claimant 

was eligible for benefits because Employer did not provide information to show 

that “Claimant was involved in the incident that caused the separation.” (O.R. at 

Item No. 4.) 

Employer appealed the Department’s decision, and a hearing was held 

before a Referee on June 21, 2016. (O.R. at Item No. 8.) It is undisputed that 

Claimant did not report to work from November 18, 2015 to February 10, 2016, 

the date of her termination. 

Muth, testifying on behalf of Employer, acknowledged that Claimant 

could not work without her clearances and testified that, “[t]here was a state 

mandate that every employee that worked for [Employer] must have their 

clearances [updated] before the end of the year, December 31” and that employees 

were notified of this at the beginning of the school year. (O.R. at Item No. 8,

Pages 12, 37-38.)

Claimant testified that she was told not to return to work until she had 

her clearances. Claimant stated that she sought the clearances as of or shortly after 

the meeting on December 18, 2015, and that two clearances could be obtained the 

same day they were requested, but that one clearance, the child abuse clearance,

takes two-to-eight weeks. Claimant further testified that there were several 

complications in obtaining her clearances, including that she was out of the school 

system and did not have a computer at home. (O.R. at Item No. 8, Page 18.) 

Claimant testified that she called Employer on January 4 and 8, 2016, to discuss 
4

the trouble she experienced in trying to obtain her clearances. (O.R. at Item No. 8,

Page 25.) However, Claimant stated that she did not inform Employer prior to the 

end of the 2015 calendar year that she was experiencing trouble obtaining her 

clearances and acknowledged that Employer informed her at the beginning of the 

school year that she needed her clearances before the end of the calendar year. 

(O.R. at Item No. 8, Pages 37-38.) 

Claimant further testified that she obtained two of her three clearances 

around February 1-2, 2016, and that the remaining clearance was one that could

have been obtained immediately. (O.R. at Item No. 8, Page 32.) However, 

Claimant did not explain why she waited to obtain this clearance. Further, 

Claimant offered no explanation of why she waited to contact Employer until 

February 13, 2016.

On June 23, 2016, the Referee issued a decision and order reversing 

the Department and denying benefits, finding that Claimant was not diligent in 

obtaining her clearances and did not take “all reasonable steps necessary to try to 

maintain the employment relationship, and that her insubordination and not 

contacting the personnel director as directed, and her essentially abandoning her 

employment without any credible evidence of good cause” amounted to willful 

misconduct. (O.R. at Item No. 9.) Claimant appealed to the Board.

On review, the Board affirmed the Referee’s decision, holding that 

Claimant “failed to credibly establish why she did not complete her clearances 

when she was informed of the need for such clearances at the start of the school 

year in September” and that Claimant also “failed to credibly establish why she did 
5

not timely contact the employer after Christmas.” (O.R. at Item No. 13.) Claimant 

now appeals to this Court.2

On appeal, Claimant challenges the Board’s conclusion that she 

abandoned her employment and was discharged due to willful misconduct. More 

specifically, Claimant argues that the evidence is insufficient to support a finding 

of ineligibility because she called Employer on January 4, 2016, and January 8, 

2016, to say that she had difficulty getting one of her clearances because she was 

out of the school system and because one of the clearances took several weeks to 

obtain and therefore, could not have returned to work after the Christmas break. 

Claimant further argues that she did not abandon her employment because she did 

not receive the February 5, 2016, letter requesting her to contact the school 

immediately or else she would be terminated until February 10, 2016, after the end 

of the school day. Claimant states that she called Employer on February 13, 2016, 

but was informed that she had been terminated. 

In response, the Board noted that the findings that Claimant engaged 

in willful misconduct without good cause regarding her ongoing absence from 

work are supported by substantial evidence. More specifically, the Board found

that Claimant did not pursue obtaining her clearances in a diligent or timely 

manner. As a matter of fact, the Board found that Claimant was informed in 

September 2015 that she needed her clearances by the end of the calendar year and 

did not apply for them, despite knowing that one could take several weeks, until 

December 23, 2015. (Referee’s Finding of Fact No. 11.) The Board held that 

Claimant failed to establish good cause for waiting so long. The Board further 

 

2 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether errors of law were committed, or whether findings of fact are supported by 

substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124, 

1127 n.4 (Pa. Cmwlth. 2010).
6

held that Claimant failed to contact Employer after receiving the February 5, 2016

letter, noting that she did not attempt to call or leave a message on February 10, 

2016, when she stated she received the letter, but waited until after she was 

terminated to contact Employer. The Board concluded that this delay was 

unjustified and her actions constitute willful misconduct without good cause. We 

agree.

An employee is ineligible for unemployment compensation benefits 

for any week “[i]n which his unemployment is due to his discharge or temporary 

suspension from work for willful misconduct connected with his work.” 43 P.S. 

§802(e). While “willful misconduct” is not statutorily defined, the Pennsylvania 

Supreme Court has defined the term as, “a) wanton or willful disregard for an 

employer's interests; b) deliberate violation of an employer's rules; c) disregard for 

standards of behavior which an employer can rightfully expect of an employee; or 

d) negligence indicating an intentional disregard of the employer's interest or an 

employee's duties or obligations.” Caterpillar, Inc. v. Unemployment 

Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997). The employer 

bears the initial burden of establishing a claimant engaged in willful misconduct. 

Id.

Excessive absences and a failure to contact an employer during a 

period of absences may constitute willful misconduct. Schwarzenbach v. 

Unemployment Compensation Board of Review, 387 A.2d 519, 521 (Pa. Cmwlth. 

1978) (holding that a five-day leave of absence without written authorization 

amounts to “voluntary termination when the employee fails to manifest his 

intention not to abandon his employment [as the claimant here failed to do]”); see 

generally Pettey v. Unemployment Compensation Board of Review, 325 A.2d 642 

(Pa. Cmwlth. 1988) (excessive absences, lack of good or adequate cause for the 
7

absence, and disregard of warnings regarding absenteeism can be considered 

willful misconduct).

The Board is the ultimate fact-finder, vested with the power to resolve

questions of witness credibility and evidentiary weight. Pedersen v. 

Unemployment Compensation Board of Review, 459 A.2d 869, 872 (Pa. Cmwlth. 

1983). This Court is “bound by findings of facts that are supported by substantial 

evidence; even though there is contradicting evidence which, if believed, would 

dictate a different result.” Id.

Here, it is undisputed that Claimant made only one attempt to report 

for work after the meeting on December 18, 2015, to her discharge on February 11, 

2016. Although Employer offered to accommodate her medical restrictions, and 

provided suitable alternative work, Claimant did not submit her clearances by the 

end of the 2015 calendar year and Claimant did not contact Employer until 

February 13, 2016, several days after receiving the February 5, 2016 letter telling 

her to contact Employer immediately or she would be terminated. As these 

findings are undisputed, they are binding and provide substantial evidence to 

support the Board’s conclusion that Claimant’s excessive absences, failure to 

diligently obtain her clearances, and failure to contact Employer constitute willful 

misconduct. Claimant’s lack of diligence in obtaining her clearances is further 

demonstrated by the fact that, after she obtained the child abuse clearance in the 

beginning of February 2016, she failed to apply for her final clearance, which 

could have been obtained the same day she requested it.

Once the employer meets its burden of proving willful misconduct, 

the burden shifts to the claimant to prove she had good cause for her actions. 

Mulqueen v. Unemployment Compensation Board of Review, 543 A.2d 1286, 1287

(Pa. Cmwlth. 1981).
8

Here, Claimant argues that she did not report for work because she 

was waiting for her clearances to arrive. She argues that she had several problems 

obtaining them, including being removed from the school system in December, not 

having a personal computer at home, and that one of the clearances took several

weeks to obtain. Further, Claimant argues that she called Employer twice, on 

January 4 and 8, 2016, to discuss her problems in obtaining her clearances. 

However, Claimant was instructed in September 2015 that her 

clearances were needed by the end of the calendar year and did not begin the 

process of obtaining them until December 23, 2015, despite knowing that the child 

abuse clearance could take several weeks. Further, once Claimant obtained her 

child abuse clearance, she failed to obtain the final clearance that she could have 

obtained immediately. Although Claimant argues she attempted to discuss her 

delay in obtaining the clearances in January of 2016, at no point prior to the end of 

the 2015 calendar year did Claimant inform Employer that she was having 

difficulty with clearances. Further, Claimant did not offer a reason as to why she 

did not attempt to obtain her clearances sooner, given that she had notice in 

September. Therefore, we conclude that Claimant has neither established good 

cause for her excessive absences nor for her failure to obtain her clearances by 

Employer’s deadline.

Regarding Claimant’s failure to timely contact Employer following 

the letter dated February 5, 2016 telling Claimant to contact Employer immediately 

or she would be terminated, Claimant argues that she did not receive the letter until 

February 10, 2016, after the end of the school day. She further argues that she 

contacted Employer on February 13, 2016. While Claimant argues that school was 

closed for the day on February 10, 2016, she did not leave a message and waited 

three days prior to contacting Employer, despite February 11th and 12th both being 
9

school days. Therefore, we conclude that Claimant has also not established good 

cause for her failure to contact Employer.3

For the foregoing reasons, the order of the Board is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

 

3 While Claimant’s lack of diligence alone may not have been sufficient to constitute 

willful misconduct, her actions in this case coupled with her failure to maintain contact with 

Employer is sufficient here to establish willful misconduct and abandonment of employment

given that she was suspended for failing to respond to Employer’s alternative job offer in 

December 2015, failed to contact Employer regarding her trouble obtaining her clearances prior 

to the December 31, 2015 deadline, failed to contact Employer after she obtained her child abuse 

clearance, and did not contact Employer for several days after receiving the letter dated February 

5, 2016 informing her to contact Employer immediately or she would be terminated.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colleen Dubaskas, :

Petitioner :

: No. 1543 C.D. 2016

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 3

rd day of July, 2017, the order of the 

Unemployment Compensation Board of Review dated August 2, 2016, is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge