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JAMES E. BROOKS v. COMMONWEALTH PENNSYLVANIA (09/12/88)

decided: September 12, 1988.

JAMES E. BROOKS, 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 James E. Brooks, No. B-259035.

COUNSEL

Cliff Preefer, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 119 Pa. Commw. Page 351]

Petitioner, James E. Brooks, seeks review of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying unemployment compensation benefits to him based on a finding of willful misconduct under section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Petitioner was last employed by Empire Kosher as a laborer. He had been under the care of a chiropractor for back problems and had been off work because of this

[ 119 Pa. Commw. Page 352]

    back problem. He returned to work on February 26, 1987, at 6:00 a.m., his usual starting time, and by 8:00 a.m. on the same day, he again suffered pain in his back and informed his foreman that he was going home. The referee found that the foreman advised petitioner that he may not have a job if he left work without authorization and that, if he did leave, in order to return he would have to have a doctor's excuse for any absenteeism on February 26, 1987 or thereafter until he returned to work.

The referee found that when petitioner returned to work on March 2, 1987, he did not have a doctor's excuse to support his absence. The referee found that petitioner was involuntarily terminated from his employment.

The Office of Employment Security (O.E.S.) denied benefits to petitioner on the basis of section 402(b) of the Law, voluntary quit without a necessitous and compelling reason. The referee affirmed the denial of benefits, but changed the legal basis to willful misconduct pursuant to section 402(e) of the Law.

Petitioner contends that the referee made an error of law in considering section 402(e), willful misconduct, since he had not received the parties' consent to consider this section, and furthermore, the O.E.S. ...


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