holding statutes affording wives but not husbands in rem support remedies to be infirm under the E.R.A.
How later courts described this case
- holding statutes affording wives but not husbands in rem support remedies to be infirm under the E.R.A.
- case not moot where sale of real property at mortgage foreclosure created fund to be divided between the parties
- husband did not raise procedural defect, thus it is waived
Written by the judges who cited it.
The opinion
*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.
LARSEN, J., joins in this concurring opinion.