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COMMONWEALTH PENNSYLVANIA EX REL. BARBARA STEIN v. NORMAN STEIN (10/24/79)

decided: October 24, 1979.

COMMONWEALTH OF PENNSYLVANIA EX REL. BARBARA STEIN, IND. AND AS GUARDIAN OF STEVEN STEIN, KEVIN STEIN AND CLIFF STEIN, MINORS, APPELLEE,
v.
NORMAN STEIN, APPELLANT



No. 334 January Term, 1978, Appeal from the Orders of the Superior Court of Pennsylvania, October Term, 1976 Nos. 1719 and 2243, Affirming the Court of Common Pleas of Philadelphia County, D.R. 76-00777.

COUNSEL

Charles C. Shainberg, Louis S. Rulli, Philadelphia, for appellant.

Jerome M. Dubyn, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which Larsen, J., joins. O'Brien and Manderino, JJ., concurred in the result. Eagen, C. J., filed a dissenting opinion.

Author: Nix

[ 487 Pa. Page 4]

OPINION

Respondent Barbara Stein, in a proceeding in the Family Division of the Court of Common Pleas of Philadelphia County, successfully invoked the provisions of the Act of May 23, 1907, P.L. 227 § 2, as amended 48 P.S. § 132,*fn1 and

[ 487 Pa. Page 5]

    the Act of May 24, 1923, P.L. 446 § 1, 48 P.S. § 137*fn2 to collect support payments owed to her by her husband, petitioner Norman Stein. The statutes in question provide remedies in rem at the behest of the wife or children against the husband for maintenance under certain circumstances and authorize execution process against real property held by the entireties to satisfy a support judgment.

Petitioner contends that these statutes are constitutionally defective under the Equal Rights Amendment to the Pennsylvania

[ 487 Pa. Page 6]

Constitution, Art. 1, Sec. 28,*fn3 and, hence, the statutes should be invalidated in toto with the result that the order entered below pursuant to the statute must be vacated.

We granted appeal from the Superior Court's per curiam affirmance of the order of the court below entering a support payment against petitioner and ordering the sale of property held by petitioner and respondent by the entireties, the proceedings to be held in escrow pending final disposition of the case below, limited solely to the issue of whether or not 48 P.S. § 132 and § 137 are constitutionally infirm.

Respondent contends that petitioner has not preserved the issue for appellate review, that the case is moot, and that petitioner is without standing to assert the constitutional claims. Before we can proceed to the merits of the case, these matters must first be addressed.

Respondent objects to the mode by which the constitutional claim was presented to the court of first instance, that is to say, the objection was made orally rather than in writing. That objection was repeatedly made in the record of the hearing held in the Court ...


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