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487 Pa. 1

406 A.2d 1381

Commonwealth Ex Rel. Stein v. Stein

Supreme Court of Pennsylvania

Decided October 24, 1979

Supreme Court of Pennsylvania · decided 1979-10-24

Key passage — most relied on by later courts

“§ 131. If any man shall separate himself from his wife or children without reasonable cause, and, being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his said wife or children, action may be brought, at law or in equity, against such husband for maintenance of said wife or children, in the court of common pleas of the county where service may be had on the husband as in other actions at law or in equity or in the county where the desertion occurred, or where the wife or children are domiciled, and the said court shall have power to entertain a bill in equity in such action, and shall make and enforce such orders and decrees as the equities of the case demand, and in such action, at law or in equity, the husband and wife shall be fully competent witnesses. § 132. Whenever any man has heretofore separated, or hereafter shall separate, himself from his wife or children, without reasonable cause, or whose whereabouts are unknown, and, being of sufficient ability, has neglected or refused or shall neglect or refuse to provide suitable maintenance for his said wife or children, proceedings may be had against any property real or personal of said husband necessary for the suitable maintenance of the said wife or children; and the court may direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds for such maintenance ...”

quoted by 1 later decision, including 285 Pa. Super. 259 - Coccia v. Coccia

Relies on Dilliplaine v. Lehigh Valley Trust Co. · Brenner v. Sukenik · Drummond v. Drummond

Good law ✅— No negative treatment on recordhow we know

Decided 1979-10-24

How this case has been cited

Cited by 42 later decisions — most recently December 1994 · most notably Tagnani v. Lew (1981), Burning Tree Club, Inc. v. Bainum (1985)

42 state decisions

280197919801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

EAGEN, Chief Justice,

¶2The 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 *14to 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.

¶3In 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.)

¶4I respectfully dissent.

¶5 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.

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