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CIVIL SERVICE COMMISSION v. ALTHEA E. ROGERS (07/28/88)

decided: July 28, 1988.

CIVIL SERVICE COMMISSION, APPELLANT
v.
ALTHEA E. ROGERS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Althea E. Rogers v. Civil Service Commission, No. 1886 March Term, 1983.

COUNSEL

Richard C. McNeill, Jr., Assistant City Solicitor, for appellant.

Margaret A. Browning, Spear, Wilderman, Sigmond, Borish, Endy & Silverstein, for appellee.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 118 Pa. Commw. Page 227]

The Civil Service Commission of the City of Philadelphia (Commission) appeals the order of the Court of Common Pleas of Philadelphia which reversed a Commission adjudication that Althea E. Rogers (Appellee) had violated the residency requirement of the City of Philadelphia (City), Philadelphia Civil Service Regulation 30.01. We affirm.

Appellee was employed as a security guard at the Art Museum. On her employment application she gave her address as 505 North 30th Street, Philadelphia, and then moved to 1529 Myrtlewood Street, Philadelphia, where she lived with her sister. Philadelphia Civil Service Regulation 30.01 requires all employees of the City to have been a bona fide resident of the City for one year prior to appointment and after appointment to maintain a bona fide residence in the City.

[ 118 Pa. Commw. Page 228]

In April of 1982, Appellee was arrested by Philadelphia police and gave her address as Bensalem, Pennsylvania. Investigators from the City controller's office following up this information established that Appellee had co-signed a rental application with her boyfriend at an apartment complex on Knights Road in Bensalem Township, Bucks County. The investigators followed Appellee to and from work and on nine separate occasions between April 20th and May 10th observed Appellee either driving to the Bensalem apartment after work or emerging from the apartment in the morning to drive to work.

Acting on this information, on May 19, 1982, the Commission personally served on Appellee at her place of employment a ten-day suspension with notice of intent to dismiss pursuant to Philadelphia Civil Service Regulation 17.01 for violation of the residency requirement. On May 29, 1982, a notice of dismissal was sent certified mail to the Bensalem address and returned unclaimed. No notice of dismissal was ever personally served on Appellee. Appellee did not return to work after May 19, 1982. She confirmed through her union representative that she had been dismissed and appealed to the Commission contending that she was not a permanent resident of Bucks county and that the City had violated Philadelphia Civil Service Regulation 17.01 and her due process rights by failing to serve on her a notice of dismissal. The Commission found, despite Appellee's testimony that she continued to reside in Philadelphia while visiting her boyfriend in Bucks County, that Appellee's actions exhibited an intent to permanently reside outside the City.

On appeal, the trial court reversed, finding that the most the Commission had proved was that Appellee had two residences, not that she had changed her domicile, and that the failure to serve a notice of dismissal on Appellee

[ 118 Pa. Commw. Page 229]

    in direct violation of Philadelphia Civil Service Regulation 17.01 violated Appellee's due process rights.*fn1 The trial court's order of September 8, 1987, reversing the Commission and reinstating Appellee was mailed to the parties on September 10, 1987. However, this order was not docketed by the Prothonotary until September 22, 1987. The Commission's notice of appeal ...


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