Appeals from the Orders of the Unemployment Compensation Board of Review in cases of In Re: Claim of Carlos Quinones, No. B-200356; In Re: Claim of Julio Matos, No. B-200357; and In Re: Claim of Luciano Rosado, No. B-200358.
David A. Scholl, for petitioners.
Charles G. Hasson, Assistant Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 69 Pa. Commw. Page 382]
Carlos Quinones*fn1 appeals an Unemployment Compensation Board of Review order affirming a referee's denial of benefits. We vacate and remand.
Quinones was a laborer at Nu-Econo-Brick. Because his work area was poorly heated, he was permitted to leave. Upon returning two days later, his job was gone.
The Employment Security Office found a voluntary quit and denied benefits under Section 402(b) of the Act.*fn2 On appeal, the referee affirmed the denial but for a different reason of willful misconduct due to excessive absenteeism under Section 402(e).*fn3 The Board affirmed the referee.*fn4
[ 69 Pa. Commw. Page 383]
Quinones contends that he was awaiting recall. Neither the Board nor the referee considered this explanation for his absence.
In a willful misconduct case, the employer has the burden of proving misconduct. Wing v. Unemployment Compensation Board of Review, Pa. , , 436 A.2d 179, 181 (1981).
The question of whether a claimant voluntarily quit or was fired is one of law subject to our review, Wing, as is his burden of rebutting the quit finding. O'Donnell v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 105, , 443 A.2d 864, 865 (1982). There is insufficient evidence for us to make that legal determination. We will not infer from ...