Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Appeal of Bell

Commonwealth Court of Pennsylvania

December 19, 2017

In Re: Appeal of Dylan Bell

          Submitted: March 24, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          JOSEPH M. COSGROVE, Judge

         Dylan 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.

         In 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.[1] 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.[2]

         Discussion

         Appellant 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.

         The 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.[3]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. §23493.1(a).

         A 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).

         Residence 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).

         Appellant 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.

         The 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).[4] 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;[5] 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 firefighter.

         Per 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.

         At the 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.