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decided: October 24, 1979.


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.


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]


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 of Common Pleas by petitioner's counsel, Mr. Shainberg, as follows:

Mr. Shainberg : . . . Please understand me, Your Honor, that I'm not attempting to merely cite a technicality, but I really truly believe in what I'm saying here. I've examined 48 Purdon's 132 and 137. They specifically address themselves to husband only situations.

It's our contention on this matter, although Your Honor may not wish to deal with it, that under the Equal Rights Amendment those statutes are unconstitutional. But for the record, I would like to make that argument to the Court . . .

(N.T., June 30, 1976, p. 19-20).

[ 487 Pa. Page 7]

    this case in which the court below proceeded forthwith to the adjudication and disposition of the case without addressing itself to the constitutional questions presented by petitioner and where the Attorney General was duly notified of petitioner's claims on appeal of the matter to the Superior Court and to this Court, and neither sought to intervene in this matter nor to raise the issue of lack of prompt notification as a reason for his decision not to intervene, we cannot accept this as a basis for refusing to consider the same.*fn5

Respondent also contends that this appeal has been mooted in view of the sale of the real property at a sheriff's sale because of a mortgage foreclosure before the domicile could be sold in accordance with the directive of the Family Court pursuant to § 137. This involuntary sale produced a fund in excess of $4,000.00 due and owing to the parties, which is presently being held by the Sheriff pending final order by the lower court. Normally each party would be entitled to one-half. However, as a result of the court-ordered reduction of support arrearages to judgment and the accompanying execution process remedies statutorily provided to wives and not to husbands,*fn6 petitioner's claim to any portion of these funds remains adversely affected absent a favorable adjudication of the constitutional claims pending in the instant case. The survival of petitioner's direct pecuniary interest in the disposition of this case, despite the sale of the domicile at mortgage foreclosure, precludes a determination of mootness. See Richards v. Jones, 338 Pa. 132, 13 A.2d 59 (1940).

Respondent further contends that this appeal should be dismissed without further consideration because petitioner stands in flagrant defiance of an order of the court. It is sufficient to note that the quashing of an appeal on this ground is predicated on a line of cases in which the appellant

[ 487 Pa. Page 9]

    had been adjudicated in contempt of the trial court, and there had been a refusal by the appellant to purge himself of that contempt.*fn7 Since that circumstance is not present in the case at bar, respondent's contention is without merit.

Respondent also challenges petitioner's standing to assert the unconstitutionality of 48 P.S. § 132 and § 137, which afford wives but not husbands in rem support remedies, because he did not seek to avail himself of those remedies. It is thus argued that the only proper plaintiff would be a husband who requested in rem enforcement of support payments and not one who merely objected to the in rem enforcement of such claims at the wife's behest. This argument cannot be squared with the meaning of Pennsylvania's Equal Rights Amendment. Here, the husband is claiming that the challenged statute burdens or disadvantages him because of his sex. The Equal Rights Amendment reaches enactments which impose different burdens as well as different benefits upon individuals based on the fact that they may be a man or woman. Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974). Accordingly, petitioner has standing to challenge the imposition of a burden on husbands but not on wives in support proceedings. See Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102 at 1107-1108, 59 L.Ed.2d 506 (1979).

Turning to the merits of petitioner's claim, we have held that: "Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability." Conway v. Dana, 456 Pa. 536, 540, 318 A.2d 324, 326 (1974). We have also held, when confronted with a statute which allowed for payment of alimony pendente lite, counsel fees and expenses to the wife in a divorce action but not to the husband, that

[ 487 Pa. Page 10]

"the right of support depends not upon the sex of the petitioner but rather upon need in view of the relative financial circumstances of the parties." Henderson v. Henderson, 458 Pa. at 101, 327 A.2d at 62. If a rule of law or statute differentiating as to support rights based on the sex of the claimant cannot stand under the Equal Rights Amendment, it must follow that in rem remedies to enforce these support rights which are available to the wife and not to the husband under 48 P.S. §§ 132 and 137 are equally infirm under our constitution.

We must now determine whether the appropriate response to the declaration of the constitutional validity of the statute is to nullify the statute or to widen the statute by extending its benefits to the previously excluded group. Note, The Effect of an Unconstitutional Exception Clause upon the Remainder of a Statute, 55 Harv.L.Rev. 1030 (1942). In so doing, we must bear in mind the legislative purposes evidenced by the statute, the overall statutory scheme, statutory arrangements in connected fields and the impact on public need in determining the appropriate judicial response to an unconstitutionally underinclusive statute*fn8 as well as our authority to make sensible and practical adjustments in conforming current laws to the requirements of the constitutional mandate.*fn9 In so doing, we find instructive cases dealing with discrimination against specified classes of individuals which have resulted in the extension of benefits to the previously excluded group.*fn10 In Sweatt v. Painter*fn11 and Brown v. Board of Education*fn12 black students

[ 487 Pa. Page 11]

    were extended the same right of access to educational institutions as that accorded white students. In Levy v. Louisiana,*fn13 the right to recover wrongful death benefits was extended to illegitimate children. In Califano v. Westcott,*fn14 the proper remedy for unconstitutional statutory underinclusion of benefits to families whose dependent children are needy because of the father's, but not the mother's, unemployment was held to be extension of benefits to all qualifying children rather than invalidation of all benefits.

This extension is in accord with administrative interpretations of the Amendment. 1 Pa.C.S. § 1921(c)(8). Thus, the Commonwealth's Attorney General construed the Equal Rights Amendment to have extended to cosmetologists the privilege to treat men's hair. 1971 Ops.A.G.Pa. No. 69. Another opinion interpreted the Amendment to extend to female parole officers authority to supervise male parolees. 1972 Ops.A.G.Pa. No. 150. In both circumstances, the language of the pertinent statute was restrictive as to gender (see Beauty Culture Act, 63 P.S. § 507; 61 P.S. § 331.28) but it was determined that those persons disfavored by the inequality should receive the benefits enjoyed by those persons favored by the inequality.*fn15

It should also be noted that adoption of the position urged by the petitioner would result in frustrating the statutory purpose of widening the range of remedies available in support proceedings as well as the effectuation through the Equal Rights Amendment of the equal responsibility of both parents to support their children in accordance with their capacity and ability. Conway v. Dana, supra 1 Pa.C.S. § 1921 (c)(1), (2), (3), (4), (6). We need not consider whether petitioner's argument against extension of the coverage of

[ 487 Pa. Page 12]

    the statute would be well taken if the discrimination were part of a criminal enactment. See McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

Our conclusion that the appropriate disposition of the instant case is to equalize the application of the statutes in question rather than to nullify them is bolstered by 1 Pa.C.S.A. § 2301 (1979 Pamphlet) which evidences legislative disfavor of the judicial practice of nullification rather than equalization of statutes found repugnant to the Equal Rights Amendment:

(a) General Rule. -- In recognition of the adoption of section 28 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that where in any statute heretofore enacted there is a designation restricted to a single sex, the designation shall be deemed to refer to both sexes unless the designation does not operate to deny or abridge equality of rights under the law of this Commonwealth because of the sex of the individual.

In view of this enactment as well as the presumptions that the General Assembly intends the entire statute to be effective and valid and that the General Assembly does not intend to violate the Constitution of this Commonwealth, 1 Pa.C.S. § 1922(2), (3), it is our view that the statute in question should be read to provide for reciprocity of remedy by spouses seeking to effectuate support orders.

Accordingly, the order of the Court of Common Pleas of Philadelphia County, as modified by this opinion, is affirmed.

[ 487 Pa. Page 13]

ROBERTS, Justice, concurring.

Although I agree with the majority that the order of the court of common pleas should be affirmed, I reach this result on different and non-constitutional grounds.

The majority holds that the two remedial statutes in question violate the Equal Rights Amendment to the Pennsylvania Constitution, Art. 1, Sec. 28. Accordingly, the majority expands the statutes to provide remedies for husbands as well as for wives.

In my view, 1 Pa.C.S.A. § 2301 is dispositive of appellant's claim. Section 2301 provides:

"(a) General Rule. -- In recognition of the adoption of section 28 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that where in any statute heretofore enacted there is a designation restricted to a single sex, the designation shall be deemed to refer to both sexes unless the designation does not operate to deny or abridge equality of rights under the law of this Commonwealth because of the sex of the individual."

In light of 1 Pa.C.S.A. § 2301 and the judicial preference for interpreting legislative enactments so as to avoid a constitutional question wherever possible, Mt. Lebanon v. County Board of Election, 470 Pa. 317, 322, 368 A.2d 648, 650 (1977), I believe that resolving this case on statutory grounds rather than on constitutional grounds, as the majority does, is jurisprudentially correct.

EAGEN, Chief Justice, dissenting.

The majority opinion states that a wife may proceed under the Act of May 23, 1907, P.L. 227, as amended, 48 P.S. § 132 [hereinafter cited as the Act of 1907], only if the husband has separated himself from his wife or children without reasonable cause and has neglected or has refused

[ 487 Pa. Page 14]

    to support his family. Commonwealth ex rel. Stein v. Stein, 487 Pa. at 1, 4-5 n. 1, 406 A.2d 1381, 1382-1383 n. 1. Yet, the majority has reached the merits of the case even though the parties resided in the same household when this action was instituted. The majority reasons that since appellant failed to raise any objection concerning this defect under the Act of 1907, the issue has been waived under Pa.R.A.P. 302(a). I cannot agree.

In Brenner v. Sukenik, 410 Pa. 324, 328, 189 A.2d 246, 248 (1963), this Court held that the separation of spouses was basic to subject matter jurisdiction under the Act of 1907 and that the failure to enter a proper objection to jurisdiction was immaterial. Accord, Drummond v. Drummond, 414 Pa. 548, 550-51, 200 A.2d 887, 888 (1964). Furthermore, it is well settled that subject matter jurisdiction cannot be conferred by estoppel, consent, or waiver. See Drummond v. Drummond, supra; Brenner v. Sukenik, supra; Leveto v. National Fuel Gas Distribution Corp., 243 Pa. Super. 510, 515, 366 A.2d 270, 273 (1976); 9 Standard Pennsylvania Practice § 48 (rev.ed.1962).*fn* Accordingly, the failure to raise the lack of separation of spouses in the lower court did not confer subject matter jurisdiction and, therefore, the merits of this case should not have been reached. The Court's analysis of jurisdiction in Commonwealth v. Ryan, 459 Pa. 148, 157, 327 A.2d 351, 355-56 (1974) is applicable here: "Where matters of jurisdiction are concerned, the courts must enforce the letter of the law. 'No emergency, real or feared, and no alleged hardship to a complaining party, however great, can justify a court's entertaining and passing upon a subject matter which is not within its jurisdictional competence.'" (Citations omitted.)

I respectfully dissent.

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