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filed: April 6, 1984.


No. 1503 Philadelphia, 1983, Appeal from the Decree of May 5, 1983 in the Court of Common Pleas of Bucks County, Orphans' No. 29389.


Robert W. Costigan, Philadelphia, for appellants.

Lawrence Barth, Deputy Attorney General, Philadelphia, for participating party.

McEwen, Beck and Hoffman, JJ.

Author: Mcewen

[ 327 Pa. Super. Page 483]

This appeal was taken from the final decree of the Court of Common Pleas of Bucks County in which the learned Judge Harriet M. Mims ordered the Administrator of the Cox Estate to distribute the assets of the estate to the Commonwealth of Pennsylvania, pursuant to Section 2103(6) of the Intestate Succession Act.*fn1 Appellants argue that Section 2103(5) of the intestacy statute, which creates two classifications of relatives in the fifth degree of consanguinity

[ 327 Pa. Super. Page 484]

    with a decedent and permits members of only one of these classifications to inherit, violates the Equal Protection clause of the United States Constitution. We have completed a careful review of the very interesting arguments advanced by appellants but conclude, nonetheless, that the Commonwealth's intestacy statute does not violate the Equal Protection clause. We affirm.

Marilyn Jane Cox, the decedent herein, died intestate on March 4, 1978, without a spouse, issue, siblings or parents to survive her and left an estate valued at slightly more than $160,000.00. A search for relatives competent to inherit this estate, pursuant to the laws of intestacy of this Commonwealth, was undertaken but no eligible heirs were located. The Intestacy Act provides that, in default of those categories of relatives permitted by statute to take by intestacy, the estate passes to the Commonwealth.

Appellants Alice Mainwaring, Evelyn Myers and Edith Vandergrift, are the first cousins of the father of the decedent and appellants Winifred Potts McAllister, Veronica Hawthorne and Edward Potts, are the first cousins of the mother of the decedent, all six of whom are precluded by the terms of the intestacy statute from inheriting the estate of Marilyn Jane Cox, their first cousin once removed. Appellants assert that the intestacy statute is constitutionally infirm in that it deprives them of equal protection of the laws. Specifically, appellants note that the Act permits one class of first cousins once removed, those related to the decedent in the fifth degree of consanguinity*fn2 (grandchildren of the aunts and uncles of the decedent), to take by intestacy but precludes intestate inheritance by another class of first cousins once removed who are also in the fifth degree of consanguinity to the decedent, (the children of great aunts and great uncles of the decedent).

[ 327 Pa. Super. Page 485]

It is well settled that there is a strong presumption of constitutionality appended to statutes lawfully enacted by the legislature. Shapp v. Sloan, 480 Pa. 449, 464, 391 A.2d 595, 602 (1978) (plurality opinion), appeal dismissed 440 U.S. 942, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1929); Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977); The School Districts of Deer Lakes & Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975); Commonwealth ex rel. Schnader v. Liveright, 308 Pa. 35, 161 A. 697 (1932); Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853); In Interest of Jones, 286 Pa. Super. 574, 429 A.2d 671 (1981). Thus, appellant bears the burden of demonstrating that the statute "clearly, palpably and plainly" violates the Constitution. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 154, 425 A.2d 419, 421 (1981) citing Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198, 203 (1975) and Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975). Accord Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 522, 412 A.2d 1094, 1099 (1980); Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932, 937 (1978); Shapp v. Sloan, supra 480 Pa. at 464, 391 A.2d at 602; Milk Control Commission v. Battista, 413 Pa. 652, 696, 198 A.2d 840, 843 (1964) appeal dismissed 379 U.S. 3, 85 S.Ct. 75, 13 L.Ed.2d 22 (1964); Commonwealth v. Walker, 298 Pa. Super. 387, 391, 444 A.2d 1228, 1230 (1982); Freezer Storage, Inc. v. Armstrong Cork Company, 234 Pa. Super. 441, 447, 341 A.2d 184, 186 (1975), aff'd 476 Pa. 270, 382 A.2d 715 (1978); In Re Street, 67 Pa. Commw. 441, 444, 447 A.2d 1052, 1054 aff'd 499 Pa. 26, 451 A.2d 427 (1982); Robson v. Penn Hills School District, 63 Pa. Commw. 250, 255, 437 A.2d 1273, 1276 (1981); Picariello v. Commonwealth, Department of Revenue, 54 Pa. Commw. 252, 255, 421 A.2d 477, 479 (1980); Workmen's Compensation Appeal Board v. Bethlehem Mines Corp., 23 Pa. Commw. 517, 520, 353 A.2d 79, 80-81 (1976). Doubts are to be resolved in favor of sustaining the legislation. Hayes v. Erie Insurance Exchange, supra 493 Pa. at 154, 425 A.2d at 421; Parker v. Page 486} Children's Hospital of Philadelphia, supra 483 Pa. at 115, 394 A.2d at 937. Nonetheless, appellants suggest that a statute which distinguishes, for purposes of inheritance by intestacy, between two sets of relatives of equal degrees of consanguinity violates the Equal Protection clause of the United States Constitution.

When confronted with an equal protection challenge, the court must initially determine the proper level of judicial review to be applied. Where the challenged statute impinges upon a fundamental right or liberty or concerns a "suspect class", the court is to undertake a "strict scrutiny" of the law. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). An intermediate standard of review, often referred to as "heightened scrutiny" is employed when the questioned statute affects a "quasi suspect" classification. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Finally, where the statutory classification concerns neither a suspect nor quasi suspect category nor fundamental rights or liberties, a minimal standard of review is to be employed: the court is merely to determine whether the statute is rationally related to a legitimate state purpose. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Estate of Kunkel v. United States, 689 F.2d 408 (3rd Cir. 1982) (plurality opinion). The challenged classification created by the statute presented for our review is based upon neither race nor alienage and does not involve a fundamental right or liberty; "strict scrutiny", ...

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