OPINION BY MR. JUSTICE LINN, January 3, 1950:
This proceeding was brought under the Uniform Declaratory Judgments Act
Those rival contentions resulted in plaintiff's petition asking the court to declare "the rights, status, and other legal relations between [plaintiff] and [defendant], for a decree that [defendant] carried no insurance with your petitioner . . . covering Buildings Nos. 21 and 22, more fully in this petition referred to." The defendant, after filing and withdrawing preliminary objections to the petition, answered on the merits, concluding his answer as follows: "Wherefore, the defendant prays . . . for a declaratory judgment under the Uniform Declaratory Judgment Act to the effect that. . . [plaintiff] . . . by its policy of insurance in effect at the time the building [number 20] hereinbefore described was destroyed by fire, did insure and protect said building by its policy of insurance which was in full
We recognize, of course, that jurisdiction cannot be conferred by the mere agreement of parties: Valley Railroad Co. v. Delaware, Lackawanna & Western R. Co., 346 Pa. 579, 582-3, 31 A.2d 276 (1943); but we refer to the 4th paragraph and to defendant's prayer in his answer as showing defendant's agreement with plaintiff that, to the extent that actual controversy between contending parties is essential, such controversy, within the meaning of the statute, exists.
The case went to trial. The judge who heard the evidence filed what he called an "adjudication," with "findings of fact" and "conclusions of law," and ending with a "decree nisi,"
Defendant then filed 31 exceptions to the "findings of fact, conclusions of law, rulings on evidence, disposition of requests for findings of fact and for conclusions of law, and the decree nisi."
The exceptions came on for hearing before the court in banc, which dismissed the proceeding without discussing the exceptions seriatim. This conclusion, as we understand the opinion of the court, was reached by reference to discretion,
The court in banc must have reached its conclusion without giving adequate effect to the amendment of May 26, 1943, P.L. 645, 12 PS 836, which, for the future, required essential modification of what this court had said, in cases arising before the amendment became effective. No one familiar with the history
The parties to this case brought themselves directly within the terms of the amendment: they agree (and the evidence shows the fact) that "an actual controversy exists." The trial judge was "satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding."
We do not at this time discuss the findings of fact and conclusions of law made by the trial judge; that is first the duty of the court in banc; we now refer to the suggested decree because the court in banc, without discussing the exceptions, dismissed the proceeding on a misapprehension of the meaning of the amendment of 1943, to which, by the way, we find no reference in the court's opinion.
The record shows, within the terms of the amendment, (1) both parties praying for relief in their "actual controversy" and (2) the trial judge "satisfied" within the statute. Coming to the next sentence of the amendment, ("Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed") we must say that counsel have not referred us to any statute providing a special form of remedy for this type of case and we know of none. The next provision to be noticed is that "the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief
The legislature, by the amendment of 1943, clearly provided that neither the fact that the defendant might have pursued his "general common law remedy" by suing in assumpsit, nor the fact that plaintiff might have used an "equitable remedy" to reform the policy (nor both facts together) shall, in the words of the amendment, "debar a party [here both parties asking for the same relief] from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present."
The cases referred to above in footnote 3 as cited by the court in banc need not detain us in considering the amendment of 1943, which imposes a different or more restricted measure of discretion than was imposed originally: Kariher's Petition, 284 Pa. 455, 131 A. 265 (1925) and Capital Bank and Trust Co.'s Petition, 336 Pa. 108, 6 A.2d 790 (1939), arose and were decided before that amendment. In Schoenbrun v. Nettrour, 360 Pa. 474, 61 A.2d 868 (1948), which was brought after 1943, the petition was dismissed because the elements of a justiciable controversy under the act were not even alleged.
With respect to the cases referred to on the second proposition, that assumpsit or bill to reform the policy constitute other available remedies, it is sufficient to say that the cases cited, Nesbitt v. Mfrs. Casualty Ins. Co., 310 Pa. 374, 165 A. 403 (1933); Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A.2d 274 (1943); Valley Railroad Co. v. Delaware, Lackawanna & Western R. Co., 346 Pa. 579, 31 A.2d 276 (1943); Allegheny County v. Equitable Gas Co., 321 Pa. 127, 183 A. 916 (1936), arose before the amendment of 1943. In
The purpose of the original draftsman of the amendment of 1935
The use of declaratory judgment procedure in insurance cases to determine coverage is very common as appears by the material collected in Borchard, Declaratory Judgments, supra, chap. 6, pp. 634 to 653. If the declaration takes the form desired by the plaintiff it will of course "terminate the uncertainty or controversy giving rise to the proceeding." If the defendant's view prevails, the declaration may be, in the words of his brief, "that the portion of the structure damaged on August 8, 1946, was covered by the policy of fire insurance then in
This record suggests brief reference to the new rules, recently effective,
The court in banc erred in dismissing the proceeding. The order is set aside; the record is remitted to the court in banc for consideration of defendant's exceptions and for such disposition as may be required, consistently with this opinion. Costs to abide the result.
Rule 43 was also amended by adding the following paragraph: "In printing the Statement under Rule 22 specific references must be made under each question to the pages in the record where such question arose and where it was considered, discussed and decided. Where the question involves testimony, the charge of the court, or other matter appearing in the record, specific references must be made to the pages in the record where the matter so involved is to be found. Failure to comply with this rule shall be regarded as an abandonment of the question for review."