No. 1233 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County to No. 30/76, Criminal.
Lewis J. Bott, Assistant Public Defender, Hazleton, for appellant.
Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 135]
Appellant William Baggs was found guilty by a jury of neglecting to support a bastard child. His post trial motions were denied. Appellant has now appealed to this court alleging that the statute making the failure to support a bastard child a crime*fn1 is unconstitutional because it violates
[ 258 Pa. Super. Page 136]
the Equal Rights Amendment to the Pennsylvania Constitution,*fn2 and the Due Process Clauses of the United States and Pennsylvania Constitutions.*fn3 Finding no merit to appellant's arguments, we affirm.
Any discussion of the constitutionality of lawfully-enacted legislation must commence with the restatement of the principle of law which creates a "presumption" in favor of constitutionality. "An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution." [Citation omitted.] "[T]he burden rests heavily upon the party seeking to upset legislative action on constitutional grounds; all doubt is to be resolved in favor of sustaining the legislation." [Citation omitted.]
Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975).
Appellant argues that the use of the pronoun he in the statute in issue*fn4 makes the statute applicable only to a male parent and, therefore, violates Pennsylvania's Equal Rights Amendment. Appellant's argument, however, is inconsistent with both the statutory and case law of this Commonwealth.
First, we note that the rules of statutory construction applicable to the Pennsylvania Consolidated Statutes provide that "Words used in the masculine gender shall include the feminine and neuter." The Act of Nov. 25, 1970, P.L. 707, No. 230, added by the Act of Dec. 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S. § 1902 ...