Com. ex rel. Stein v. Stein

• Decision Date: 24 October 1979
• Citation: 487 Pa. 1,406 A.2d 1381
• Parties: 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.
• Court: Pennsylvania Supreme Court

Page 1381

406 A.2d 1381

487 Pa. 1

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.

Supreme Court of Pennsylvania.

Argued April 16, 1979.

Decided Oct. 24, 1979.

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

Jerome M. Dubyn, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.

OPINION

NIX, Justice.

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, ¹ and the Act of May 24 1923, P.L. 446 § 1, 48 P.S. § 137 ² 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 Constitution, Art. 1, Sec. 28, ³ 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).

The Court : . . . Do you dispute that I may order the property sold?

Mr. Shainberg : Yes, I do, Your Honor.

The Court : Why? For what reason?

Mr. Shainberg : . . . Secondly, as I said before, we challenge the constitutionality of it; . . .

(N.T., June 30, 1976, p. 30).

The Court : We can escrow the funds and then make a determination as to where the money should go.

Mr. Shainberg : But I would continue to challenge your right to order that property sold under the constitutionality of the statute.

(N.T., June 30, 1976, p. 31).

We hold that these statements raised the issue with sufficient specificity in a proceeding in the Family Division to provide the trial court with an opportunity to consider the merits of the argument. In addition, the issue was included in petitioner's arguments before the Superior Court.

The respondent next contends that petitioner's failure to notify the Attorney General of the Commonwealth of a constitutional challenge to an Act of Assembly in a proceeding in which the Commonwealth is not a party in violation of Pa.R.C.P. 235(a) ⁴ pretermits our consideration of petitioner's constitutional claims. The rule requires "prompt" notification of the Attorney General. Under the circumstances of 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. ⁵

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, ⁶ 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 had been adjudicated in contempt of the trial court, and there had been a refusal by the appellant to purge himself of that contempt. ⁷ 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 "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, 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 ⁸ as well as our authority to make sensible and practical adjustments in conforming current laws to the requirements of the constitutional mandate. ⁹ 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. ¹⁰ In Sweatt v. Painter ¹¹ and Brown v. Board of Education ¹² black students were extended the same right of access to educational institutions as that accorded white students. In Levy v. Louisiana, ¹³ the right to recover wrongful death benefits was extended to illegitimate children. In Califano v. Westcott, ¹⁴ 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...