Bieryla v. Bieryla

6 Pa. D. & C.3d 369, 1978 Pa. Dist. & Cnty. Dec. LEXIS 337

• Court: Pennsylvania Court of Common Pleas, Lackawanna County
• Decided: May 4, 1978
• Docket: no. 1358
• Status: Published

Opinion

WALSH, J.,

This matter is before the court on plaintiffs preliminary objections to defendant, Judith Bieryla’s counter-claim for divorce from bed and board pursuant to the Act of May 2, 1929, P.L. 1237, 23 P.S. §11.

Plaintiffs preliminary objection is in the form of a demurrer contending that the Pennsylvania law allowing divorce from bed and board is unconstitutional as discriminatory on the basis of sex. He cites the Equal Rights Amendment of the Pennsylvania Constitution, art. 1, §28, adopted May 18, 1971, as authority for that position.

Section 11 of The Divorce Law provides:

“Upon complaint, and due proof thereof, it shall be lawful for a wife to obtain a divorce from bed and board, whenever it shall be judged, in the manner hereinafter provided in cases of divorce, that her husband has:

“(a) Maliciously abandoned his family; or

“(b) Maliciously turned her out of doors; or

“(c) By cruel and barbarous treatment endangered her life, or

“(d) Offered such indignities to her person as to render her condition intolerable and life burdensome; or

“(e) Committed adultery.”

We note initially that the issue before us has not as yet been taken before the Supreme Court of Pennsylvania, and, therefore, we must look elsewhere for authority and guidance in the disposition of this case.

We need look no further than a case arising from Allegheny County which is directly “on all fours” with the issue presently before us. In this case, Corso v. Corso, 59 D. & C. 2d 546 (1972), Presiding Judge John G. Brosky in a scholarly analysis of the pertinent divorce law reasoned that this law is based solely upon sexual classification, thus denying equality of rights, and is, therefore, invalid.

Based upon Judge Brosky’s analysis, we too find that the present law for divorce from bed and board in the Commonwealth is unconstitutionally discriminatory.

ORDER

Now, May 4, 1978, plaintiffs preliminary objection to defendant’s counter-claim for divorce from bed and board under section 11 of The Divorce Law is hereby sustained, and said counter-claim is hereby dismissed.