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FRANCIS MCCARTHY v. PHILADELPHIA CIVIL SERVICE COMMISSION (05/30/75)

decided: May 30, 1975.

FRANCIS MCCARTHY, APPELLANT,
v.
PHILADELPHIA CIVIL SERVICE COMMISSION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Francis McCarthy v. Philadelphia Civil Service Commission, No. 1479 August Term, 1973.

COUNSEL

William F. Coyle, for appellant.

Louis F. Hinman, III, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, Raymond Kitty, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Crumlish, Jr. Judge Mencer joins in this Dissent.

Author: Wilkinson

[ 19 Pa. Commw. Page 384]

This appeal involves the in-city residency requirements of civil service employees of the City of Philadelphia as contained in ยง 20-101 of that city's Code of Ordinances.*fn1 Francis McCarthy, appellant, was suspended

[ 19 Pa. Commw. Page 385]

    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 to 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.

[ 19 Pa. Commw. Page 386]

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. Commonwealth Ct. 1, 320 A.2d 418 (1974), and Shannon v. Civil Service Commission, 4 Pa. Commonwealth Ct. 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 ...


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