Franklin & Lindsey, Inc. v. Commonwealth

Dissenting Opinion by

Judge Blatt:

I must respectfully dissent.

I cannot agree with the majority that the claimant was offered suitable work and that she refused it without good cause. While it is true that Section 4(t) of the Unemployment Compensation Law,1 43 P.S. §753 (t), defines “suitable work” as “all work which the employe is capable of performing,” it also contains the following directive:

In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness, prior training and experience, and the distance of the available work from his residence. The department shall also consider among other factors the length of time he has been unemployed and the reasons therefor, the prospect of obtaining local work in his customary occupation, his previous earnings, the prevailing condition of the labor market generally and particularly in his usual trade or occupation. . . .

Applying these criteria in this case, the Board reasoned as follows:

In the instant case the record reveals that the claimant, who had previously worked for the same employer as a draftsperson-surveyor but *64had done some secretarial work, refused work purely as a secretary at the same rate of pay. The record further reveals that the claimant had only been unemployed for about five days and that the majority of the claimant’s prior training and experience is in the drafting and related fields. Under the circumstances, the proffered employment cannot be deemed suitable. . . .

Like the claimant here, many employees are capable of performing more than one job. It does not follow, however, that every job an employee is capable of performing is “suitable” employment, nor does the statute so provide. Whether or not proffered work is suitable involves a factual determination which is peculiarly within the province of the administrative agency with the relevant expertise in and understanding of job classifications, labor markets, the adaptability of skills, and so forth. We should be loathe, therefore, to substitute our judgment for that of the Board in all but the clearest case of error, which the appeal before us is not.

Furthermore, this Court has observed in a case in which it was stipulated that the proffered employment would not allow the claimant to preserve his skills, that a “claimant must have a reasonable time to seek employment which would use his skills before being required to accept a position that did not.” United States Steel Corp. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 295, 300, 310 A.2d 94, 96 (1973). In the case before us the Board found, inter alia:

The claimant refused the proffered employment because she felt that a purely secretarial job was not in keeping with her training and experience, that her drafting shills would deteriorate and that the job lacked sufficient opportunities for advancement. (Emphasis added.)

*65I believe that the Board’s determination was properly based on testimony which it deemed credible as to the claimant’s training and experience and as to the length of time she had been unemployed. I would therefore affirm the Board’s decision that the claimant had good cause for refusing the proffered employment.

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §751 et seq.