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decided: May 9, 1983.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Joseph Viggiano v. Civil Service Commission of the City of Philadelphia, No. 1226 April Term, 1981.


Richard M. Sanders, with him Herman Bloom, Bloom, Ocks and Fisher, for appellant.

James Grasty, with him Russell S. Endo, Assistant City Solicitor, and Reba C. Smallwood, Deputy City Solicitor, for appellee.

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

Author: Craig

[ 74 Pa. Commw. Page 192]

Joseph Viggiano, who had been a police officer for the City of Philadelphia since July 6, 1977, appeals an order of the Court of Common Pleas of Philadelphia County, which affirmed a decision of the Civil Service Commission, upholding Viggiano's dismissal from the police department for failure to comply with residency requirements under Philadelphia Code § 20-101*fn1 and Philadelphia Civil Service Regulation § 30.01.*fn2

In response to an anonymous telephone complaint, stating that Viggiano was residing at his parents' home in New Jersey, the department conducted an investigation from October 3, 1980 to October 27, 1980, which included a surveillance of Viggiano's activities. During each of nine spot checks that month, the investigators observed Viggiano commuting directly between his parents' New Jersey home and the district station at which he worked.

On October 27, 1980, after the department informed Viggiano of the investigation, he admitted that during October, 1980, he had not slept overnight at the Philadelphia apartment which was his address of record for the department. However, Viggiano explained that he had been regularly staying at his family home because of his mother's illness, which required his assistance.*fn3

[ 74 Pa. Commw. Page 193]

Viggiano also emphasized that his stay at his parents' home was temporary, and that all evidence reflected his intention to retain his Philadelphia domicile, including the fact that, since 1976, he has continuously: (1) paid rent at his Philadelphia apartment, (2) had mail delivered at that apartment, (3) paid telephone bills and utility bills at that apartment, (4) registered and voted as a Philadelphia voter, (5) had a Pennsylvania operator's license and motor vehicle registration, and (6) paid automobile insurance coverage based on Philadelphia residency, at almost twice the rate payable for a New Jersey resident. Nevertheless, the police department determined that Viggiano was not a bona fide resident of Philadelphia and dismissed him.

"Bona fide residence," as defined in § 20-101, is synonymous with domicile or sole legal residence. McCarthy v. Philadelphia Civil Service Commission, 19 Pa. Commonwealth Ct. 383, 339 A.2d 634 (1975), aff'd, 424 U.S. 645 (1976). The issue of legal residence depends on the actual conduct of the employee, id., and the commission has the responsibility to weigh the various indicia of residency and draw inferences from the evidence presented. Homan v. Civil Service Commission of Philadelphia, 28 Pa. Commonwealth Ct. 426, 368 A.2d 883 (1977).

In Alburger v. Alburger, 138 Pa. Superior Ct. 339, 343, 10 A.2d 888, 890 (1939), cited in McCarthy, our Superior Court said:

When a residence is once acquired, it is presumed to continue until it is shown to have been changed, and when a change is alleged, the burden

[ 74 Pa. Commw. Page 194]

    of proving it rests upon the one making the allegation, and two things are indispensable thereto: First, a residence in a new locality, and, second, the intention to remain there. "Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains."*fn4

Here, the department's investigation revealed that Viggiano resided in his parents' New Jersey home during October, 1980. In addition, in his statement to the department following the surveillance, Viggiano acknowledged that he had not stayed overnight in his Philadelphia apartment since "about a month before the Pope was [in Philadelphia]," which was approximately one year before the investigation. Furthermore, Viggiano said that for the year preceding the investigation, he had used a call-forwarding service on his telephone, which forwarded calls from his Philadelphia apartment to his parents' New Jersey home. Also, Viggiano testified that he had taken a typing

[ 74 Pa. Commw. Page 195]

    course in New Jersey from February 13, 1980 to April 16, 1980.

Thus, we find substantial evidence*fn5 to support the commission's conclusion that Viggiano's Philadelphia apartment was a subterfuge for his change of domicile from Philadelphia to New Jersey.*fn6

Accordingly, we affirm the order of the common pleas court.


Now, May 9, 1983, the order of the Court of Common Pleas of Philadelphia County, Civil Trial Division, at No. 1226, April Term, 1981, entered on April 28, 1982, is affirmed.



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