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FREDERICK FIEGENBERG v. COMMONWEALTH PENNSYLVANIA (02/10/78)

decided: February 10, 1978.

FREDERICK FIEGENBERG, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the State Civil Service Commission in case of In Re: Frederick Fiegenberg, No. 1723.

COUNSEL

Martin J. Vigderman, with him Freedman, Lorry, Vigderman, Weiner and Sovel, for petitioner.

David A. Ody, Assistant Attorney General, for respondent.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.

Author: Bowman

[ 33 Pa. Commw. Page 571]

This is a petition for review filed by Frederick Fiegenberg (Fiegenberg) to an order of the State

[ 33 Pa. Commw. Page 572]

Civil Service Commission (Commission), dated April 30, 1976. The order reinstated Fiegenberg without back pay to his position of workmen's compensation referee. The petition asks this Court to review only the Commission's refusal to award back pay. We will affirm the Commission's order.

The facts are undisputed. Fiegenberg, an attorney, was convicted on April 23, 1965, in Philadelphia Federal Court of attempting to influence, intimidate, and impede the testimony of a witness. He was sentenced to one week probation. Immediately following his conviction, disbarrment proceedings were initiated. The Court of Common Pleas of Philadelphia, however, refused to impose any disciplinary action. The court concluded that Fiegenberg had already received sufficient punishment and that his prior exemplary conduct demonstrated that protection of the public was unnecessary.

In 1972, Fiegenberg filed a Civil Service application for the position of workmen's compensation referee. In answering the questions on the application, Fiegenberg failed to respond to the questions pertaining to whether he had ever been convicted of a criminal offense. Although these omissions were deliberate, they were motivated by a desire to fully explain the circumstances of his conviction. The Commission, however, never requested an explanation as to why he failed to respond to the questions and appointed him to the position of workmen's compensation referee on the basis of the incomplete application.

Fiegenberg served in the capacity of workmen's compensation referee until August 27, 1975. On that date he received notice that he was suspended from his position pending an investigation concerning an alleged failure to reveal a criminal conviction at the time he filled out his Civil Service application. The Secretary of Labor and Industry subsequently informed

[ 33 Pa. Commw. Page 573]

Fiegenberg on September 9, 1975, that he had no recourse but to remove him from his position in light of the fact that he did not disclose that in 1965 he ...


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