Appeal from the Order of the State Civil Service Commission in case of Appeal of Dr. Ned Baron, No. 1269.
I. Raymond Kremer, with him Neil H. Stein, and Kremer, Krimsky & Luterman, P.C., for appellant.
Marx S. Leopold, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
Dr. Ned Baron (Dr. Baron) is a licensed physician who began his employment with the Commonwealth in 1963 at the Embreeville State Hospital (Embreeville), and by October, 1971, had risen to the position of Acting Superintendent at that institution. During the period of his Commonwealth employment, Dr. Baron was also engaged in private practice, and he was accused by the Department of Public Welfare (DPW), which is also his Commonwealth employer, of misusing its Medical Assistance Program in the course of his private practice. Specifically he was charged with billing the DPW Medical Assistance Program (1) for patients who were never seen or treated by Dr. Baron or his associates, (2) for visits in addition to those which actually occurred, (3) for patients actually seen by a physician other than Dr. Baron, and (4) for visits during which patients were given prescriptions but did not receive treatment. Based on these charges, DPW terminated Dr. Baron's employment at Embreeville as a Psychiatric Physician II, regular status, his official civil service description, as of March 6, 1972.*fn1
Dr. Baron appealed to the State Civil Service Commission (Commission) which handed down an adjudication on August 18, 1972, restoring him to his position but without back pay. The Commission found that the evidence presented by DPW was "not sufficiently substantial to sustain removal of appellant [Dr. Baron] from his position. . . .", but it also found that: "The evidence of the appointing authority supports a misuse of the medical assistance program in a minor degree sufficient to justify a disciplinary action of suspension of appellant as Psychiatric Physician II."
Dr. Baron appealed to this Court from the Commission's denial of back pay. No appeal was taken by DPW from the Commission's order of reinstatement.
Our scope of review in this matter is to determine whether or not the Commission's actions in denying back pay to Dr. Baron amounted to an abuse of discretion or an error of law. Gibbs v. Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281 A.2d 170 (1971).
It is clear that the Commission is generally given a wide discretion as to whether or not to award back pay. Section 951(a) of the Civil Service Act, 71 P.S. § 741.951(a) provides: "If such final decision is in favor of the employe, the appointing authority shall reinstate him with the payment of so much of the salary or wages lost by him as the commission may in its discretion order." This Court has stated, in Department of Transportation v. State Civil Service Commission and Desikachar, 5 Pa. Commonwealth Ct. 263, 269, 290 A.2d 434, 437 (1972): "As stated in Section 951 of the Civil
Service Act, 71 P.S. § 741.951(a) . . . the Commission may order back pay at its discretion. It is under no requirement to do so; and here it did not choose to do so. We can find nothing in the record or in Desikachar's argument which would support a finding that the Commission had abused its discretion in this regard." (Emphasis in original.) The Commission, therefore, may clearly use its discretion in deciding whether or not to award back pay, but it may not ...