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CITY MEADVILLE v. H. KENTON NEFF. CITY MEADVILLE (10/04/82)

decided: October 4, 1982.

CITY OF MEADVILLE, FIREMEN'S CIVIL SERVICE COMMISSION
v.
H. KENTON NEFF. CITY OF MEADVILLE, APPELLANT. H. KENTON NEFF, APPELLANT V. CITY OF MEADVILLE, FIREMEN'S CIVIL SERVICE COMMISSION, APPELLEE



Appeals from the Order of the Court of Common Pleas of Crawford County in the case of City of Meadville, Firemen's Civil Service Commission v. H. Kenton Neff, No. 179 February Term, 1979.

COUNSEL

Russell L. Schetroma, Culbertson, Weiss, Schetroma & Schug, for City of Meadville.

Gordon R. Miller, Blystone, Fuller, Kinnunen, Miller & Gamble, for H. Kenton Neff.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 69 Pa. Commw. Page 261]

This is an appeal from an order of the Court of Common Pleas of Crawford County reversing a decision of the Firemen's Civil Service Commission (Commission) of the City of Meadville (City). The Commission had upheld the discharge of H. Kenton Neff (Neff) from his employment as a City fireman on the grounds that he had violated the City's residency requirements.

At the time Neff applied to and was hired by the City fire department in March, 1967, he did not reside within the City limits. Three or four months later, however, he moved into the City and resided there until July 1, 1977, when he moved to Cochranton. He continued to rent a furnished apartment within the City at which he had a listed telephone, paid utilities,*fn1 and maintained his voter registration.

Shortly before moving to Cochranton, Neff met with the then city manager to discuss whether or not disciplinary action would be taken against him if he carried out his intended move. The then city manager responded that, while keeping track of City employees' residences was not his top priority, if it were brought to his attention that a fireman was maintaining his primary residence outside of the City, he would enforce the residency requirement set forth in Section 23 of Article V of Ordinance 2755 of 1970 (Section 23). Neff, nevertheless moved and was subsequently advised in a letter dated July 22, 1977 by the city manager that his maintenance of his apartment within the City was "in order to circumvent the City's established residency requirement," and that Cochranton was now his actual address. Neff was given 90 days in which to re-establish a bona fide residence within the City. On January 28, 1978, Neff signed an annually

[ 69 Pa. Commw. Page 262]

    required certificate of residence in which he identified his apartment address as "my actual residence and primary domicile." By letter of April 21, 1978, the fire chief notified him that unless he established a bona fide residence within the City by August 15, 1978, he would be discharged, which he eventually was, on October 15, 1978.

Upon appeal, the Commission upheld Neff's discharge and, when he appealed to the Court of Common Pleas, the court remanded the matter for further testimony and findings concerning whether or not the residency requirements had been consistently enforced by the City in the past. Upon remand, and after holding a hearing, the Commission reaffirmed Neff's discharge. Upon a new appeal, the Court of Common Pleas reversed, finding that there had been a history of arbitrary and capricious enforcement of the residency requirement, and the court ordered Neff reinstated with full back-pay less set-off for income earned by him from other employment. The instant appeal by the City followed.

In an appeal from a civil service commission adjudication where, as here, the trial court took no additional evidence, our review is limited to determining whether or not the commission abused its discretion, committed an error of law, or made findings unsupported by substantial evidence in the record. Homan v. Civil Service Commission, 28 Pa. Commonwealth Ct. 426, 368 A.2d 883 (1977).

The City contends that the trial court erred as a matter of law and also that it conducted an independent factual determination, substituting its judgment for that of the Commission, and thereby exceeding its mandate under Section 10 of the ...


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