McCarthy v. Philadelphia Civil Service Commission

• Decision Date: 02 September 1975
• Citation: 19 Pa.Cmwlth. 383,339 A.2d 634
• Parties: Francis McCARTHY, Appellant, v. PHILADELPHIA CIVIL SERVICE COMMISSION, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 634

339 A.2d 634

19 Pa.Cmwlth. 383

Francis McCARTHY, Appellant, v. PHILADELPHIA CIVIL SERVICE COMMISSION, Appellee.

Commonwealth Court of Pennsylvania.

Argued April 1, 1975.

Decided May 30, 1975.

Petition for Allowance of Appeal Denied Sept. 2, 1975.

[19 Pa.Cmwlth. 384] William F. Coyle, Philadelphia, for appellant.

Louis F. Hinman, III, Asst. City Sol., Philadelphia, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

WILKINSON, Judge.

This appeal involves the in-city residency requirement of civil service employees of the City of Philadelphia as contained in § 20--101 of that City's Code of Ordinances. ¹ Francis McCarthy, appellant, was suspended and dismissed effective February 2, 1973, from his position as Fire Lieutenant because he was in violation of the residency requirements contained in the Philadelphia Home Rule Charter, Code of Municipal Ordinances and Civil Service Regulations. Appellant filed a timely appeal to the Philadelphia Civil Service Commission, which found, after a hearing, that appellant was not a bona fide resident of Philadelphia. On further appeal to the Court of Common Pleas of Philadelphia County, that court, without taking additional evidence, affirmed the decision of the Civil Service Commission. The instant appeal followed.

The record shows that appellant and his family owned property both in Philadelphia and in Villas, New Jersey. After certain incidents had occurred in the neighborhood of appellant's Philadelphia property, appellant's wife and nine of their ten children moved to the New Jersey property. Appellant and his oldest son continued to live in the house in the City for approximately ten months until the property was sold, because the house was continually subject to vandalism. Appellant then went to live with his mother in Philadelphia where he remained at least up until the time of his dismissal. It is his mother's home that appellant claims as his in-city residence in that he alleges he resides there while on duty, receives mail there, is registered to vote from that address, and uses that address for various financial purposes.

The testimony further discloses that appellant, depending on his work schedule, would usually spend two nights a week at his fire station, at least two nights a week at his mother's home, and two to three nights a week in Villas, New Jersey. Appellant's wife votes in New Jersey and his children attend school there. Appellant does not contest that he was still maintaining a marital relationship with his wife and that he is the sole support for his family.

When, as here, the lower court took no additional evidence, the review by this Court is to determine whether constitutional rights were violated, whether the local agency abused its discretion or committed an error of law, and whether the findings are supported by substantial evidence. See City of Philadelphia v. Evans, 14 Pa.Cmwlth. 1, 320 A.2d 418 (1974), and Shannon v. Civil Service Commission, 4 Pa.Cmwlth. 492, 287 A.2d 858 (1972).

Appellant argues the requirement that city employees be residents of the City is unconstitutional, because it infringes upon appellant's right to travel and violates the Equal Protection clause of the 14th Amendment of the United States Constitution. This very issue was raised and fully discussed in Wright v. City of Jackson, Mississippi, 506 F.2d 900 (5th Cir., 1975). There, the Fifth Circuit Court of Appeals held that a municipal residency requirement for firemen did not violate the 'right to travel' nor any provision of the Federal Constitution. That court also determined that 'numerous other decisions . . . have held that a municipal employee residence requirement bears a rational relationship to one or more legitimate state purposes, and hence is constitutional under the traditional equal protection test. (citing cases).' 506 F.2d at 903. In light of the complete review of this issue in the above opinion, it is unnecessary for us to pass further on the Federal questions raised.

Appellant next argues that the admission and use by the Commission of hearsay testimony in the from of various reports nd statements was an error of law and tainted the Commission's findings. We disagree. Section 5 of the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. § 11305, provides that local agencies shall not be bound by technical rules of evidence. This Court has held in Bleilevens v. Pennsylvania Civil Service Commission, 11 Pa.Cmwlth. 1, 312 A.2d 109 (1973), that hearsay evidence can be admitted, but that an adjudication cannot be founded entirely on hearsay. In the instant case, it is clear that the Commission based its decision, not on the hearsay complained of, but on the testimony of appellant himself concerning how much time he spends in New Jersey and Philadelphia. Such action by the Commission does not constitute an error of law.

Appellant's final argument is that there was not substantial evidence to support the Commission's finding that appellant was not a bona fide resident of the City. It is well settled that a person can have more than one residence, but only one 'legal residence' or domicile. See Dorrance's Estate, 309 Pa. 151, 163 A. 303 (1932), and Goetz v. Borough of Zelienople, 14 Pa.Cmwlth, 639, 324 A.2d 808 (1974). In the instant case, the Commission and the lower court properly interpreted the term 'bona fide residence' as used in the ordinance to mean domicile. Alburger v. Alburger,138 Pa.Super. 339, 10 A.2d 888 (1939). The conclusion of where one's domicile is depends on the facts of each individual case. Stabile Registration Case, 348 Pa. 587, 36 A.2d 451 (1944), and Goetz, supra.

Here, the Commission determined that appellant's New Jersey residence was his domicile. In support of this conclusion, the record shows: that appellant no longer owned property in Philadelphia; that appellant spent on the average as much time in New Jersey as he did at his mother's home in Philadelphia; that appellant continued to maintain a marital relationship with his wife while she lived in New Jersey on property co-owned with appellant; that appellant was the sole support of his wife and family living in New Jersey; that appellant's children attended school in New Jersey. There well-supported facts fully substantiate the conclusion that the domicile of appellant was in New Jersey, and we are bound by the facts supported by substantial evidence and proper conclusions of law made by the Commission.

This seems to be a case where appellant has made a declaration of domicile, yet did not act in accordance with the declaration. In such a situation, the self-serving declaration cannot be conclusive but must yield to the intent which the acts and conduct of the person clearly indicate. See Dorrance's Estate, Supra.

Affirmed.

CRUMLISH, Jr., Judge (dissenting).

I must respectfully dissent. Although I am in full accord with the majority's conclusion that the term 'bona fide residence,' as used in § 20--101 of The Philadelphia Code, must be interpreted to require a 'legal residence' or 'domicile' within Philadelphia, and as construed that this requirement does not infringe upon Appellant's constitutional right to travel or equal protection, I cannot agree that there is substantial evidence to support the finding that Appellant is no longer a bona fide resident of the City.

'Bona fide residence' has been construed to mean a residence with domiciliary intent, i.e., a residence which an individual considers his home and...