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RICHARD GEORGE v. DOROTHY GEORGE (12/21/79)

decided: December 21, 1979.

RICHARD GEORGE
v.
DOROTHY GEORGE, APPELLANT



COUNSEL

Samuel Avins, Pittsburgh, for appellant.

Eric F. Solomon, Hess & Humphreys, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision in this case. Roberts, J., concurs in the result for the reason that 1 Pa.C.S.A. § 2301 requires that the statute allowing bed and board divorce be interpreted to provide the same remedy for both husbands and wives. See Commonwealth ex rel. Stein v. Stein, Author: Flaherty

[ 487 Pa. Page 134]

OPINION OF THE COURT

Appellant Dorothy George appeals from an order of the Court of Common Pleas of Allegheny County, Pennsylvania, which dismissed her counterclaim against appellee Richard E. George in his divorce action. Appellant's counterclaim sought a decree of divorce from bed and board as provided in Section 11, Act of May 2, 1929, P.L. 1237, 23 P.S. § 11 (1955). The Court of Common Pleas dismissed the counterclaim on the grounds that Section 11 is unconstitutional under the Equal Rights Amendment, Pa.Const. art. I, § 28 [hereinafter cited as E.R.A.], because the statute allows

[ 487 Pa. Page 135]

    wives but not husbands to obtain such divorces when marital misconduct occurs. Appeal was taken to Superior Court which certified to this Court the question of the constitutionality of Section 11.

Appellant's first contention is that the E.R.A. is inapplicable to the rights and duties of a man or woman after they become married because interests of children of the marriage may be affected. The E.R.A. provides:

"Prohibition against denial or abridgement of equality of rights because of sex

"Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual."

A plain reading of this provision reveals no exception in the area of domestic relations. Nor has this Court in the past refused to apply the E.R.A. to questions of the rights and duties of husbands and wives, even where the interests of children may be affected. In Henderson a statute allowing wives but not husbands to obtain alimony pendente lite, counsel fees, and expenses in divorce actions was held unconstitutional. There we stated:

Thus, as it is appropriate for the law where necessary to force the man to provide for the needs of a dependent wife, it must also provide a remedy for the man where circumstances justify an entry of support against the wife. In short, the right of support depends not upon the sex of the petitioner but ...


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