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
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 *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). * 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.
The cases cited by the majority do not concern failures to raise objections to subject matter jurisdiction. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974) concerns the waiver of a jury instruction issue. Matthew-Landis Co. v. Housing Authority, 240 Pa.Super. 541 , 361 A.2d 742 (1976) concerns the failure to raise a non-jurisdictional statutory defense in a lower court.