6 E.D. Appeal Docket 1994
BRIEF OF PHILIP H. KLINE
On Appeal to the Supreme Court of Pennsylvania from the Order of the Court of Common Pleas of Chester County, Pennsylvania, Domestic Relations Section entered January 12, 1994, at NO. 1012 N 1984, granting Defendant's Petition to modify and terminate support.
WILLIAM H. MITMAN, JR., ESQUIRE Attorney I.D. No. 17794 111 South Church Street West Chester, PA 19382 (610) 696-9315 Counsel for Philip H. Kline |
I. THE APPROPRIATE STANDARD
Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 at p. 311 (1986).The types of classifications are: (1) classifications which implicate a "suspect" class or a fundamental right; (2) classifications implicating an "important" though no fundamental right or a "sensitive" classification; and (3) classifications which involve none of these. (cite omitted) Should the Statutory classification in question fall into the first category, the statute is strictly construed in the light of a "compelling" governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an "important" governmental purpose; and if the statutory scheme falls into the third category, the statute is held if there is any rational basis for the classification.
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her child come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551 at p. 559, 92 S.Ct. 1208 (1972).
II. APPLICATION OF THE STANDARD
Thus, the legislative expressed a belief that interest involved was assisting a certain class of adults in obtaining a college education. Father argues that is not the governmental interest at all. On the contrary, the true governmental interest is in fostering education of young adults, irrespective of the marital status of their parents.... the General Assembly finds that it has a rational and legitimate governmental interest in requiring some parental financial assistance for a higher education for children of parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation. 23 Pa. C.S. 4237
Respectfully submitted, WILLIAM H. MITMAN, JR., ESQUIRE |
FOOTNOTES
(1) The matter was considered by the Court below;
(2) The general rule applies to appellants, not appellees. When an appellee raises a constitutional issue for the first time on appeal, the Court follows the rule that a correct decision will be sustained if it can be sustained for any reason whatsoever. Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 583 (1955);
(3) "In any litigation, the failure to preserve an issue on appeal will be excused if there is a strong public interest that outweighs the need to protect the judicial system from improperly preserved issues." Schwarcz v. Schwarcz, 378 pa. Super. 170 at p. 201, 548 A.2d 556 (1988). Reilly by Reilly v. Southeastern Pa. Transp., 507 Pa. 204, 489 A.2d 1291(1985).
TABLE OF CITATIONS
CASES
Altman v. Ryan, 453 Pa. 401 at p. 407, 257 A.2d 583 (1969)
Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed. 2d 797, 94 S.Ct. 1536 (1974)
Blue v. Blue, ___ Pa. ___, 616 A.2d 628 (1992)
Childers v. Childers, 89 Wash. 2d. 592, 575 P.2d. 201 (1978)
Hartford Steam Boiler Inspection and Insurance Co. v. Harrison, 301 U.S. 459, 81 L.Ed. 1223, 57 S.Ct. 838 (1937)
James v. SEPTA, 505 Pa. 137, 477 A.2d 1302 (1984)
Le Claire v. Le Claire, 137 N.H. 213, 624 A.2d. 1350 (1993)
Nordlinger v. Hahn, 505 U.S. ___, 120 L.Ed. 2d 1, 112 S. Ct. 2326 (1992)
Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949)
Reilly by Reilly v. Southeastern Pa. Transp., 507 Pa. 204, 489 A.2d 1291(1985)
Schwarcz v. Schwarcz, 378 pa. Super. 170 at p. 201, 548 A.2d 556 (1988)
Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 583 (1955)
Smith v. City of Philadelphia, 512 Pa. 129, 516 A. 2d 306 (1986)
Stanley v. Illinois, 405 U.S. 645, 31 L.Ed. 2d 551 at p. 559, 92 S.Ct. 1208 (1972)
United States Retirement Board v. Fritz, 449 U.S. 166, 66 L.Ed. 2d 368, 101 S.Ct. 453 (1980)
Weinberger v. Wiesenfeld, 420 U.S. 636 at p. 652, 43 L.Ed. 2d 514, 95 S.Ct. 1225 (1975)