decided: April 12, 1973.
COMMONWEALTH EX REL. LUKENS
Appeal from order of Court of Common Pleas of Delaware County, May T., 1972, No. F-19-149, in case of Commonwealth ex rel. Miriam W. Lukens v. William H. Lukens.
Donald H. Pugh, with him Bell, Harvey, Pugh and Sinclair, for appellant.
J. McFadden, with him Garland D. Cherry, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.
[ 224 Pa. Super. Page 228]
Appellant William H. Lukens appeals from an order of the Court of Common Pleas of Delaware County directing him to pay his wife (appellee) $35 per week support. His sole contention is that the Act of June 24, 1939, P. L. 872, Section 733, as amended, 18 P.S. § 4733, violates the Equality of Rights Amendment to the Pennsylvania Constitution*fn1 and the Equal Protection Clause of the Fourteenth Amendment.
We recently had occasion to consider a similar argument, challenging our statute allowing for awards of alimony pendente lite and costs to wives but not husbands,*fn2 in Henderson v. Henderson, 224 Pa. Superior Ct. 182, 303 A.2d 843 (1973). The opinion of the court below in the instant case was there cited with approval:
"In Commonwealth ex rel. Lukens v. Lukens, May Term, 1972, No. F-19-149, Legal Intelligencer, Oct. 19, 1972 (Delaware Cnty.), affirmed, the Court of Common Pleas of Delaware County rejected the contention that Pennsylvania's support laws are violative of the equality of rights provision. The court reasoned . . . .: 'The non-support law is designed to enforce the marital obligations when it becomes necessary to do so. It is here emphasized that a woman obtains support only when there is a need and the husband has the ability to provide that need. It is clear that the Act of 1939 does not require the husband to do any more than what he
[ 224 Pa. Super. Page 229]
originally consented to do by marrying his wife. . . . Thus, the Act of 1939 does not arbitrarily and capriciously operate to deny the equal rights of a male or a female solely because of sex, but realistically serves to solve a problem which arises from the relationship of marriage.
"[A] husband does have a right to seek support from his wife under the Act of June 24, 1937, P. L. 2405, sec. 3, 62 P.S. 1973 . . . [which] can easily be referred to as the counterpart of the Act of 1939, since a husband in need can seek support from his wife if she has the financial ability to provide for her husband's needs.
"The vast majority of support cases concern them-selves with a petition filed by a wife. However, the Act of 1937 is sufficiently broad to allow a husband to seek support. Thus, the law does not arbitrarily deprive a husband from support as the respondent contends." Henderson v. Henderson, 224 Pa. Superior Ct. 303, 189 A.2d 847 (Dissenting Opinion) (1973).
Since such a reciprocal arrangement exists under our support statutes, we hold that, while there may not be mathematically precise equality, these statutes create a substantial right to support for both sexes. Therefore, they do not deny rights based on the impermissible classification of the sex of the individual.
The court below also went on to distinguish Corso v. Corso, 120 P.L.J. 183 (Allegheny County 1972), on which appellant relies. The court noted that, like Henderson, supra, Corso (and its companion case)*fn3 dealt with Pennsylvania statutes which give rights to wives alone.*fn4 The statutory scheme there lacked the type of
[ 224 Pa. Super. Page 230]
reciprocity of rights on which the court below relied to uphold the act in the instant case.*fn5