Civil Service Commission v. Parks

Opinion by Judge MacPhail, The Civil Service Commission of the City of Pittsburgh (Commission) appeals from the order of the Court of Common Pleas of Allegheny County dated January 28, 1983, which reversed the decision of the Commission and directed the Commission to certify payment of back wages to Thomas Parks (Parks) and to continue to certify Parks as a domiciliary of the City of Pittsburgh (City) for future pay periods from the date of the order. The Commission in its decision dated October 21, 1982, found that Parks was not a resident of the City and that he therefore no longer complied with the residency requirements1 for employment by the City. For this reason, the Commission refused to continue to certify pay for Parks, who had been employed as a firefighter by the City. The common pleas court took no additional evidence, but determined upon the record from the Commission that the Commission’s findings concerning Parks’ domicile were not supported by substantial evidence, that the Commission did not [136] meet its bur,den of .proving a change of domicile by Parks .and that Parks ’ domicile was iu the City.2 Our review, iu an ¡appeal from, a civil service commission adjudication where the trial court took uo additional evidence, must focus upon the deeisioa of the commission. We are limited to determiuiug whether the .commission “abused its discretion, committed au error of law, or made fiudiugs unsupported by substantial evidence in the .record.” City of Meadville, Firemen’s Civil Service Comm’n v. Neff (City of Meadville), 69 Pa. Commonwealth Ct. 259, 262, 450 A.2d 1078, 1079 (1982). ■Section 181.02, the City residency requirement which Parks was found to have violated, .states that: All City employees .and officials, iucludiug but uot limited ¡to Police Department and Fire Department persoamel, ¡shall ,b.e domiciled in the City at the time of their initial appointment and shall continuously maintain their domicile within the City .throughout their terms of ¡employment with the City. (Emphasis added.). A determination of where a person is domiciled is governed by the facts of each individual case. City of Meadville. Which of his two residences was Parks’ [137] domicile is a question of law, Goetz v. Borough of Zelienople, 14 Pa. Commonwealth Ct. 639, 644, 324 A.2d 808, 811 (1974), which may properly be decided by this Court. We must determine whether the Commission’is findings are supported by substantial evidence -in the record. The pertinent finding's in regard to domicile are: 1) that the great majority .of Parks’ living arrangements are at the Doriseyville Rd. residence outside the City, on property which he and his wife purchased iu 1974; and 2) that the Butler St. .apartment in the 'City which Parks and Ms wife purchased in 1981, is furnished but vacant. We .are of the opinion that these findings are (Supported by isubistantial evidence.3 For this reason, we find that the ■•Commission did not abuse its discretion in determining that Parks [138] no longer complies with the residency requirements for a City firefighter. The Commission has met the burden of proving that Parks moved from the City 'and made Dorsey-ville Ed. his new domicile; therefore, as the one asserting a change of domicile, Parks must meet the burden of .showing domicile at Butler St. See Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932). This he has failed to do. Parks failed to act in a manner consistent with having a domicile within the City. “ [T]he self-serving declaration cannot be conclusive but must yield to the intent which the acts and conduct of the person clearly indicate.” McCarthy v. Philadelphia Civil Service Comm’n, 19 Pa. Commonwealth Ct. 383, 388, 339 A.2d 634, 637 (1975), aff'd 424 U.S. 645 (1976). As a matter of law, we find that Parks’ domicile at the time in question was at Dorseyville Rd. See Borrance’s Estate. In accordance with the above; the order of the court of common pleas is reversed and the decision of the Commission is reinstated. Order The order of the Court of Common Pleas of Allegheny County dated January 28, 1983, is hereby reversed. Judge Williams,'Jr. 'dissents. Footnotes [1] Section 181.01 of the Pittsburgh. Code of Ordinances, Pittsburgh, Pa., Code tit. 1, ant. XI, ch. 181, §181.02 (1979) and Section 3 of 'the Act of June 27, 1939 (Act), P.L. 1207, as amended, 53 P.S. §23493. [2] These detmmdina'tions made It unnecessary for the common, pleas court to reach Parks’ 'arguments that the 'Commission erred in not permitting him to .proceed before a fireman’s trial board, pursuant to 'Section 5 of the Act, 53 P.S. §23495, and that the Commission’s decision was limited to the time from September 22, 1982, when his .pay wias discontinued until November 1, 1982, when he applied for recertification. These issues were not raised by Parks before this Court. Although we are troubled by the fact that the Commission did noit use the word “domicile” in its decision, it may be fairly inferred that the Commission’s conclusion that Parks did not meet the residency requirements was a determination that he resided and was domiciled at the Dorseyville Rd. address outside the City. We note that the common pleas count so treated the Commission’s decision. [3] The record shows that an investigator «f tíre Department; of Personnel, Pittsburgh. Oivil iServdce Oommisson, saw Parks frequently .at the Dorseyville Rd. address, but seldom at the ¡Butler St. address during her investigation of his .place of residence. Other testimony indicated that Parks .and his wife had purchased the Dorseyville Rd. property in 1974, th'ait Parks was often present at the residence there, that Parks maintained a business address and supplies there, that Ms wife and three of his four children lived there, that the children went to school in the district servicing Dorseyville Rd., tbalt Parks paid .the mortgage on the property .and that in testimony in a civil case in 1976 Parks gave the Dorseyville Rd. address as his -residence. In contrast, the evdenee regarding .the Butler St. apartment was that -electric -and water utility usage wais consistent with, -at most, .occasional use of the apartment. Parks testified .that he used the apartment as -a place to sleep. Much of the evidence intended to establish Butler 'St. .as Parks’ domicile was that he used the address for various licenses and bank accounts, paid 'City taxes, and was registered to vote in the City. Of course the 'Commission was the factfinder, and we will not disturb those findings which are supported by substantial -evidence. See Homan v. Civil Service Comm’n, City of Philadelphia, 28 Pa. Commonwealth Ct. 426, 368 A.2d 883 (1977).