A recent article in the Legal Intelligencer referred to the ability of the Pennsylvania courts to require separated and divorced parents to pay for their children’s undergraduate education pursuant to 23 Pa.C.S.A. Section 4327. While the language of 23 Pa.C.S.A. Section 4327 does provide for such an obligation, 23 Pa.C.S.A. Section 4327 was declared unconstitutional by the Pennsylvania Supreme Court in 1995 and, consequently, the courts do not have the authority to require parents to pay for their children’s college education. Notwithstanding the statute being declared unconstitutional, the Pennsylvania legislature has not taken affirmative action to have the statute repealed. As a result, the unconstitutional and unenforceable statute continues to be printed and published as if it is good law. Depending on the source publishing the statute, there may be an editor’s comment (such as in Bisel’s Pennsylvania Domestic Relations Lawsource textbook) or a red flag notation on Westlaw, noting the unconstitutionality of the statute.
It is not uncommon for a reported statute that has been overturned or found to be unconstitutional or unenforceable by the judiciary to remain published for some period of time as the legislature catches up. For example, the definition of marriage under 23 Pa.C.S.A. Section 1102 remains codified as between one man and one woman, despite the fact that the U.S. District Court for the Middle District of Pennsylvania struck down Pennsylvania’s definition of marriage as unconstitutional in the 2014 case of Whitewood v. Wolf. It, therefore, is critical to review any notes and editor’s comments, as well as cases citing a particular statute, before arguing for application of the statute.
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