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HENDERSON v. HENDERSON (10/16/74)

decided: October 16, 1974.

HENDERSON
v.
HENDERSON, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 1385, affirming order of Court of Common Pleas, Family Court Division, of Philadelphia, June T., 1970, No. 6858, in case of Barbara Ann Henderson v. Theodore H. Henderson.

COUNSEL

Peter C. Paul, with him Rawle & Henderson, for appellant.

Samuel F. Pepper, for appellee.

James M. Marsh, with him LaBrum and Doak, for interested party.

Barbara A. Brown, Harriet N. Katz, Ann E. Freedman, and Women's Law Project, for Women in Transition and ERA Law Center, interested parties.

Kathleen Herzog Larkin and Lawrence Silver, Deputy Attorneys General, and Israel Packel, Attorney General, for amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 458 Pa. Page 99]

This is one of three appeals that have been consolidated for the purposes of argument to determine the consistency of current legislative enactments with the recently passed Article I, Section 28 of the Pennsylvania Constitution known as the Equal Rights Amendment.*fn1 This particular appeal raises the question whether the Act of May 2, 1929, P. L. 1237, § 46, as amended, 23 P.S. § 46 (Supp. 1974-75) is in violation of Article I, Section 28*fn2 in that it provides for the payment of alimony pendente lite, counsel fees and expenses to the wife-party of a divorce action and not to the husband in appropriate cases.

Appellant, Theodore H. Henderson, appealed from an order of the Superior Court affirming by an equally-divided court the action of the Court of Common Pleas, Family Court Division directing him to deposit security for payment of costs in a pending divorce action.*fn3 The parties filed an agreed statement of the case setting forth that the appellee, Barbara Ann Henderson, had instituted an action in divorce A.V.M. to which the appellant responded by filing an answer. The appellee thereupon filed a petition and rule for alimony pendente lite, counsel fees and costs. The rule for counsel fees was made absolute in the sum of $200 by agreement, and the balance of the rule was continued until further

[ 458 Pa. Page 100]

    notice. After two Masters' Hearings and in accordance with Philadelphia Local Rule 1133(a)(2)(b),*fn4 the Master filed a rule upon the appellant to show cause why a reasonable sum should not be deposited with the Prothonotary as security for payment of additional Masters' fees. Simultaneously, a rule was filed on behalf of the stenographer also requesting that a suitable sum be set aside for future stenographic costs. The court below, after directing both parties to the action to submit statements of income and assets, entered an order directing appellant to deposit $500.00 as security for additional Masters' fees and $100 as security for additional stenographic charges. From this order the appellant appealed.*fn5

Section 46 has been interpreted as allowing the courts in appropriate cases to provide the wife, who is either suing or defending a case of divorce, a reasonable sum as will enable her to maintain herself ...


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