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ANGEL VARGAS v. COMMONWEALTH PENNSYLVANIA (01/24/85)

decided: January 24, 1985.

ANGEL VARGAS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Angel Vargas, No. B-204846.

COUNSEL

Juan R. Sanchez, for petitioner.

Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 87 Pa. Commw. Page 159]

This is an appeal of a decision and order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision and denied Angel Vargas (Claimant) unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law*fn1 (willful misconduct).

The referee found that Claimant had been employed as a mushroom picker by Kennett Canning Company (Employer) and that on January 11, 1982 Claimant left work in the middle of the day after notifying Employer that he was ill. Claimant did not report to work on January 12th through January 15th, nor did he contact Employer during that time period. Claimant did seek treatment for his illness. The referee, during the course of the hearing, posed the following

[ 87 Pa. Commw. Page 160]

    question to Claimant, after Claimant had testified that it was his understanding that Employer's policy was that an employee should either call in sick and not submit a doctor's certificate upon returning to work or not call in sick and submit a doctor's certificate upon returning to work.

Q. Does that even apply to long periods of time like if a person's going to be out for two or three weeks, do they have to can they be out be out (sic) for two or three weeks without reporting and then bring the doctor's certificate back?

A. Okay. In a situation when it's going to be long, absent for a long time out of work, he knows that they will fire him. Ahh, (inaudible) he doesn't know about.*fn2

Based solely upon this evidence the referee denied benefits and the Board affirmed the decision. Where, as here, the party with the burden of proof prevailed below, we must determine whether there is substantial evidence on the record to support the findings of fact or whether there is an error of law. Dick v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 285, 417 A.2d 841 (1980).

It has long been the law that absenteeism alone, while grounds for discharge, is not a sufficient basis for a denial of benefits. Welded Tube Company of America v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 231, 401 A.2d 1383 (1979). Some additional element or elements must be present to justify the denial of benefits. Judge Wilkinson effectively categorized these elements as (1) ...


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