Submitted: March 24, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE JOSEPH M. COSGROVE, Judge
M. COSGROVE, Judge
Bell (Appellant), appeals from an order of the Court of
Common Pleas of Allegheny County (trial court) which
dismissed his appeal of a ruling by the City of Pittsburgh
(City) Civil Service Commission (Commission) that the City
had just cause for passing over Appellant for consideration
as a City firefighter. Upon review, we affirm.
January 2014, Appellant applied for a position as a
firefighter with the City. (Reproduced Record (R.R.) at
36-37.) The City Fire Chief (Fire Chief) passed over
Appellant's application for just cause because Appellant
did not reside within the City for one year prior to his
application as required by Section 3 of the Firemen's
Civil Service Act (Act) for Cities of the Second
Class. Appellant appealed to the Commission and a
hearing was held December 15, 2015. The Commission found
Appellant failed to provide evidence that would justify
overturning the decision of the Fire Chief. Further, the
Commission found the Fire Chief acted within the broad
discretion conferred upon him. The Commission noted the
burden of proof for residency was on Appellant, a burden he
did not meet, thus providing just cause for the Fire Chief to
pass over him. Consequently, the Commission declined
Appellant's invitation to substitute its judgment for
that of the Fire Chief and denied Appellant's appeal.
Appellant appealed the Commission's ruling to the trial
court which took no additional evidence and affirmed the
Commission's ruling. This appeal followed.
argues the trial court erred by ruling the City established
just cause before the Commission for passing over Appellant
for a position as a City firefighter because the Commission
relied upon improper hearsay testimony for its decision.
process for application and appointment as a City firefighter
is governed by Section 3 of the Act, which provides in
pertinent part that no application shall be "received
from any person who shall not have been a bona fide resident
of the [C]ity for one year next preceding the date of his
application." 53 P.S. §23493. The application and
appointment process is also governed by Section 3.1 of the
Act.Section 3.1 of the Act provides that
"appointments and promotions ... shall be made only from
the top of the competitive list ... [but] the appointing
officer may pass over the person on the top of the
competitive list for just cause in writing." 53 P.S.
determination of an individual's legal residence is a
question of law which is dependent upon the facts as found by
the appropriate fact finder, who draws inferences from the
evidence presented and weighs the credibility of the
witnesses. Homan v. Civil Service Commission, City of
Philadelphia, 368 A.2d 883 (Pa. Cmwlth. 1977). The
relevant facts are determined by each individual case.
Civil Service Commission of City of Pittsburgh, 471
A.2d at 156. The findings of fact of the Commission are
conclusive upon appeal, however, the legal conclusions drawn
therefrom remain subject to judicial review. Foley v.
Civil Service Commission of City of Philadelphia, 423
A.2d 1351, 1353 (Pa. Cmwlth. 1980).
is a matter of intent and intent is established by the actual
state of the facts. In re Shimkus, 946 A.2d 139, 149
(Pa. Cmwlth. 2008); see also In re Lesker, 105 A.2d
376 (Pa. 1954). "Intent, being purely subjective, must
to a large extent be determined by the acts which are
manifestations of that intent." Wallace v.
Wallace, 89 A.2d 769, 771 (Pa. 1952) (establishment of
residency for purposes of a divorce).
argues that a residency determination is based on a
collection of facts taken into consideration, and not on a
single factor. Appellant asserts that domicile is a
well-settled matter in Pennsylvania, requiring two elements
to be met: physical presence, or residence, and intent to
make the residence the principal home of the applicant.
Commission, however, argues that where there is
"substantial evidence of noncompliance with the
requirements of the application process, " the Fire
Chief may exercise his discretion to pass over an applicant
from the position of firefighter recruit. Civil Service
Statutes, As Amended, & Rules Governing The Civil
Service, City of Pittsburgh (Pittsburgh Civil Service Rules),
Rule VI, §2(B)(7). To this end, the Commission
contends that the Fire Chief also has discretion to choose
the method for obtaining information in an accreditation
process. Title One, Chapter 116 of the Pittsburgh City
Code §116.02; see also City of Pittsburgh v.
Bachner, 912 A.2d 368, 373 (Pa. Cmwlth. 2006) ("the
just cause provisions of the [Act]…[do] not confer
upon candidates the right to challenge the
information-gathering procedures utilized to determine
whether just cause exists.") As long as the information
used by the Fire Chief to pass over the applicant supports
just cause, the Commission argues, the Fire Chief's
decision will not be overturned: Appellant did not meet his
burden of proving his City residency and that failure is just
cause for passing over Appellant for consideration as a City
Section 3 of the Act, Appellant was required to be a resident
of the City one year prior to the date of his application.
Therefore, Appellant needed to establish residency in the
City as of January 2013.
hearing held before the Commission on December 15, 2015,
Lieutenant Thomas Trochan, Jr. (Trochan) testified on behalf
of Appellant. Trochan testified he is employed by the Prince
William County Department of Fire and Rescue in Virginia
(Prince William). (Reproduced Record (R.R.) at 26-27.)
Trochan is Appellant's supervisor; Appellant worked for
him at Prince William for a year and a half. Id. at
26. When questioned about his knowledge of Appellant's
residence, Trochan responded, "As far as I'm aware,
he lives in Pittsburgh." Id. at 26. Trochan
testified that Appellant's correspondence is sent to
Pittsburgh, his driver's license is "in
Pennsylvania" and he has Pennsylvania plates.
Id. When ...