Appeal from the Order of the Court of Common Pleas of Butler County, in case of Petition of Zelienople Borough in Nature of Appeal, No. Ms.D. 24 September Term, 1972.
Robert E. Kunselman, with him Reed, Sohn, Reed & Kunselman, for appellant.
John L. Wilson, for appellee.
Judges Kramer, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.
[ 14 Pa. Commw. Page 640]
This is an appeal by Robert C. Goetz (Goetz) from an order of the Court of Common Pleas of Butler County which reversed the action of the Zelienople Police Civil Service Commission (Commission) reinstating Goetz as a policeman in the Borough of Zelienople (Borough).
[ 14 Pa. Commw. Page 641]
Goetz was dismissed from the Borough's police force on March 29, 1972 for the reason that he was no longer in compliance with the Borough's residence requirement. Goetz began his employment with the Borough as a policeman in 1961. The question concerning Goetz's residency arose some time after the spring of 1971. In 1970, Goetz and his wife resided at 318 East Spring Street (the home of Mrs. Goetz's parents), which is located within the Borough. In March of 1970, Goetz and his wife began building a house in Jackson Township. Although the house was not fully completed, in the spring of 1971 Mrs. Goetz moved in, and since then the Jackson Township residence has been her sole residence. Goetz, on the other hand, has retained the Spring Street residence with his in-laws. Goetz maintains a mailing address in the Borough. He also votes in the Borough and pays its wage and per capita taxes. He keeps most of his clothes at the Spring Street residence, receives his bills there, and maintains a telephone there which also rings at the Jackson Township residence.
Goetz was dismissed following an investigation by the Borough which revealed that he occasionally stayed at the Jackson Township residence. Goetz appealed to the Commission, and a hearing was held, after which the Commission sustained his appeal and directed that he be reinstated. The Borough appealed to the lower court, which reversed the Commission's order. Hence this appeal.
The residency requirement in question is found in the Borough Policy Manual, and provides: "All full-time regular employees of the Borough of Zelienople must be bona fide residents of the borough at the time of employment or must establish legal, full-time residence, within the borough within ninety (90) days following their probationary period of service."
[ 14 Pa. Commw. Page 642]
Before the Commission, Goetz proffered two basic contentions: (1) that he was in compliance with the requirement; and (2) that the regulation was improperly enacted. The Commission generally agreed with Goetz on both grounds.
On appeal, the lower court held a de novo hearing at which the record made before the Commission was introduced and additional testimony was taken from Goetz and three Borough witnesses. Initially, it should be noted that the court below concluded that the residency requirement was a permitted and valid exercise of authority under Section 1185 of ...