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CIVIL SERVICE COMMISSION CITY PITTSBURGH v. THOMAS PARKS (02/06/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 6, 1984.

CIVIL SERVICE COMMISSION OF THE CITY OF PITTSBURGH, APPELLANT
v.
THOMAS PARKS, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of Thomas Parks v. Civil Service Commission of the City of Pittsburgh, No. SA 756 of 1982.

COUNSEL

Richard J. Joyce, Assistant City Solicitor, with him D. R. Pellegrini, City Solicitor, for appellant.

Stanford A. Segal, Gatz, Cohen, Segal & Koerner, P.A., for appellee.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. dissents.

Author: Macphail

[ 80 Pa. Commw. Page 135]

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 requirements*fn1 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

[ 80 Pa. Commw. Page 136]

    meet its burden of proving a change of domicile by Parks and that Parks' domicile was in the City.*fn2

Our review, in an appeal from a civil service commission adjudication where the trial court took no additional evidence, must focus upon the decision of the commission. We are limited to determining whether the commission "abused its discretion, committed an error of law, or made findings 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, including but not limited to Police Department and Fire Department personnel, shall be 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'

[ 80 Pa. Commw. Page 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's findings are supported by substantial evidence in the record. The pertinent findings in regard to domicile are: 1) that the great majority of Parks' living arrangements are at the Dorseyville Rd. residence outside the City, on property which he and his wife purchased in 1974; and 2) that the Butler St. apartment in the City which Parks and his wife purchased in 1981, is furnished but vacant. We are of the opinion that these findings are supported by substantial evidence.*fn3 For this reason, we find that the Commission did not abuse its discretion in determining that Parks

[ 80 Pa. Commw. Page 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 Dorseyville Rd. 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 Dorrance'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.

Disposition

Reversed. Decision of Commission reinstated.


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