*1 I find As to merits of the myself controversy, Mr. agreement expressed with the views in his Bobekts Dissenting Opinion, action of believe that the court below should respect (a) sustained with to: “those direct- challenges forth as set qualifications ed to the the elector, of the 1963 amendment to the Election Code, (b) of absentee privilege voting”; exercise respect “with to the directed to matters challenges could have been raised ‘had . . . [the elector] presented himself his own district vote ” than absentee ballot. . . .’ am of the challenges to absentee made sub- ballots, upon to the of some tech- sequent ground election, applications of form upon nical errors such elector can no longer ballots and at a time when the cure be sustained. errors, orders of the court would affirm the below with the matter should be remanded modification predicated to dismiss all challenges the court below applications minor upon irregularities ballots. electors absentee Appellant. Fulton,
Mains v. Before J.,O. 1966. September Argued *2 and Rob- O’Brien Eagen, Musmanno, Jones, Cohen, JJ. erts, him & Evans, with Evans, Evans, Ivory O.
James appellants. for appel- him Weil, L. with Weil & Weil,
Andrew lees. November Mr. Chiee Justice
1966: Ful-W. Virginia Fulton and C. James
Defendants a final judg- from this Court to appeal his wife, ton, Charles plaintiffs in favor of below the Court of ment in declaratory his wife, Ethel Mains, Mains W. proceedings. known developers of an area July 1, On Allegheny in O’Hara Township, Driftwood as plan their of record filed County, shows the easement of 30-foot plan The area. of that Duquesne the transmission lines of way right northerly part across rear Light Company, defendants’ including part property. ends of six lots Duquesne plaintiffs contracted June, 1964, to relocate lines so that thereafter its Light Company the 30-foot right way they occupy, over defendants’ partly properly. which was When erect its lines Duquesne permission fendants refused property their and denied the legal across Duquesne shown refused right way plan, proceed further of its the relocation lines. thereupon brought declaratory judg- Plaintiffs ment determine or not possessed Duquesne easement across de- property. fendants’ Duquesne was named as one defendants these At the Court proceedings. trial, six questions submitted and there- the jury, factual *3 after gave judgment plaintiffs.
In 416 Sheldrake Pa. A. Estate, 207 2d 551, 802, Court said : (pages 553-554) While “‘(1) grant petition for a a is a matter judicial sound discretion: “This Court now adheres to that declaratory view proceedings if not be entertained there exists another available and appropriate remedy, or statutory not: McWil liams v. McCabe, 406 Pa. 179 2dA. 222; State Farm Mutual Automobile Insurance Co. v. 407 Semple, Pa. 180 2dA. 925.” Lakeland Joint School Dis trict v. Scott Authority Township School 414 District, Pa. 200 2dA. 748.* “ ‘In Farm Mutual State Automobile Insurance Co. 407 v. Semple, Pa., supra, the Court said 574- (pages principles : “The 575) to guide the lower courts whether or termining not a declaratory judgment pro- ceeding entertained was recently clarified by * proceeded by Plaintiffs could have an equity action quiet action at an title.
523 Court in McWilliams v. 179 222 A. 2d Therein we (1962). (1) declared, that a declaratory judgment is not an proceeding op tional substitute established and remedies; available it that (2) should not be granted where a more appro is priate remedy ;* that it should (3) available not granted unless compelling unusual circumstances that it exist; (4) should not be is granted where there a dispute or such facts,** arise; controversy may it (5) should not be granted unless there a clear manifestation that the declaration will ’ ” be practical help terminating controversy.”
Moreover, declaratory judgment will not proceedings lie unless the parties an having interest the is joined: sue are Mohney Estate, 416 Pa. 204 2d A. 916; Carlsson v. Pa. General Ins. Pa. Co., A. 2d 759; Bracken v. Duquesne E. & Mfg. Co., 2d 623. as all A. case, interest not it is clear joined,*** declara tory judgment will not lie.
Judgment vacated.
Mr. Justice Cohen and Mr. Justice Roberts concur in the result. by Mr. Jones:
I am still of that if there is a statutorily provided if remedy, remedy must be but pursued, there is simply another available statutorily *4 the provided, only one not the factor, only factor, the weighed by court determining declaratory opinion in dissenting will lie. See: McWilliams v. Mc- * Emphasis Opinion. added Sheldrake Estate ** Italics, ours. *** Certainly all owners the of Driftwood joined, had an interest and none the pp. extent 658-661. To the at 406 Pa.
Cabe,
appeal on
opinion
disposition
majority
the
rests
opinion
majority
in McWil-
by
rule enunciated
the
my
supra,
register
dissent.
liams v.
posi
opinion
majority
flat
takes the
Moreover,
declaratory
there
will not lie where
tion that
position
dispute
to overlook
seems
of facts. This
(Act
Declaratory Judgments
Act
that the
the fact
§831)
seq.,
was
P. L.
et
P.S.
June
supplemented by
May
P. L. 228,
the Act of
22, 1935,
jury
provides
the trial,
P.S.
§6,
§852,
jury,
de
without a
of issues
or the court
posi
judgment proceeding.
claratory
take
dispute
ordinarily
facts
tion
the existence of a
weighed heavily in
be a factor to be
the exercise
de
of a court’s discretion as whether
entertain
judgment.
claratory
Siegel,
See: Ladner v.
Cory.,
Keystone
E.
144 A.
Ins. Co. v. W. &
274;
be determined are not agree majority the result reached to, opinion. Appellant,
Regelski, v. F. W. Woolworth Co.