*1 improper thing dangerous or unreasonable or even present display.” insurer defendant not an Furthermore, safety Hall Robert his business invitees: Markle v. numerous cases A. 2d Clothes, cited therein. negligent
Plaintiff’s contention that defendant was up holding knowing that the basket meat, in front of De- the meat devoid of merit. counter, plaintiff repeat, we is not an insurer and fendant, blindly carelessly clearly cannot walk into a visible object injuries and recover for her which resulted from negligence.
Judgment of nonsuit affirmed.
Mr. Justice Musmanno and Mr. Justice dis- Cohen sent.
Sheldrake Estate. Argued January 1965. Before C. J., Mus- O’Brien Cohen, manno, Jones, Eagen, Roberts, JJ. *2 Q. and him R. Kottsen, with Stanley
Melvin Levy, appellant. for & MeOlenachan, Blumberg Levy, Beatty, Robert W. B. him Lewis with Beatty, Jr., appellee. for Johnson, & Beatty, and Greer Butler, Opinion 16, March by Mr. Chief 1965: 8, November died testate
Charles K. Sheldrake dollars. million of of an estate over possessed 1959, Novem- probated His dated was August 1959, will, 14, provided, 1959. created a trust which ber Testator income of the net specific percentage inter for a alia, his to paid specific percentage to be to widow, his Shel- and to brother. specific percentage son his thereby to take against drake’s widow elected the will, of should share the who receive the raising question her. income which had been willed to trust the decedent died no Although November, 1959, had been filed the prior account executors to Jan 1963.* uary 16, 16, 1963,
On executors January filed a petition declaratory asking the Court to decide * November, filed an account executors 1963. dece payable which was percentage income payable was and percentage dent’s son par filed and was brother. An answer decedent’s hear After facts. into a stipulation ties entered filed on Judge July ing, van Roden ques resolving and a dated July 2, Decree (so-called) From this tions income distribution. brother. taken decedent’s appeal Decree an was judg- was no justification There must be vacated. ment and the Decree In Mohney Estate, 109-110) declaratory pro-
Court : (pages “Why said customary were instead of ceedings brought appropriate presenting way filing account the questions at the audit decedent’s account, *3 not disclosed. . . . While declara-
“(1) petition a grant tory judgment is a matter of discretion: judicial sound “ ‘This Court now adheres to the that declara- view tory judgment not if proceedings must be entertained there exists another appropriate available and or not: statutory McWilliams v. McCabe, 406 Pa. 179 A. Farm 222; 2d State Auto- Mutual mobile Insurance Co. v. Semple, 2d 925.’ Lakeland Joint School District v. Authority Scott Township School 200 A. District, 2d 748.
“In State Farm Mutual Automobile Insurance Co.
v.
Semple,
Pa.,
the Court
supra,
said
574-
(pages
:
575)
‘The principles
to guide the lower
in
courts
determining whether or not a declaratory judgment
should
be entertained was
clarified
recently
in
this Court McWilliams v. McCabe,
appropriate remedy that is available;* granted compelling circum and unusual not be unless granted where (4) not be that it should exist; stances controversy dispute or such facts, there is granted (5) unless not be it should arise; declaration there is a clear manifestation terminating practical help sought con will be ” troversy.’ declaratory judgment proceeding in such To allow adequate long a case established and only appropriate but also more would available possible uncertainty in Or- confusion create doubt, phans’ proceedings justifica- Court and is without tion. petition prej-
Decree vacated and dismissed without present questions udice to at an audit of pay Executors’ each costs. account; own Concurring Mr. Jones: agree thoroughly expressed IWhile with the views dissenting opinion in the excellent of Mr. Justice Rob- majori- must concur the result reached I erts, opinion. ty my reason in- concurrence in the statutory remedy stant case is that a to deter- exists present controversy: mine the under such circum- declaratory judgment stances should not have been entertained. *4 Dissenting by Mr. Roberts: begun provisions suit
This was under the of the Declaratory Judgments Act.1 That eminent- * Italics, ours. 1 begun, pertinent At the time the suit was statute was 18, 1923, of June P. L. as April 25, Act amended Acts of May 26, 1943, L. and P. L. P. 12 P.S. §§831-46. Sec by declaratory provided: “Relief may tion 6 or decree granted in controversy all civil cases where
be actual exists important ly dealing which means that we are fact, with statutory in the is not interpretation, reflected result. majority of Bight that fact also to have seems been in lost a number of as growing similar cases well.
There is no special in statutory remedy applicable this and in case, the absence of such a I can remedy2 see no reason awhy declaratory judgment per- is not missible and appropriate; there is manifest statutory contending parties, between or where the court is that satisfied antagonistic present parties claims are between the involved indicate litigation, imminent and any inevitable or where in such party case the court relation, is legal satisfied that a asserts a status, right, privilege or in which he a has concrete interest challenge that status, there is a or relation, denial of such asserted right, jn-ivilege by adversary party or who also has or asserts therein, a concrete interest and the court is a satisfied also that declaratory judgment or will decree serve to un- terminate the certainty controversy giving or proceeding. Where, rise how- ever, provides special remedy specific a statute a form of type case, statutory remedy followed; must be but the mere controversy susceptible that an actual or threatened is re- fact through general remedy, equitable common law or an reme- lief dy, legal extraordinary remedy or an ichether such recognised regulated by not, statute or shall not debar a privilege obtaining declaratory judgment or decree from any present; case where other essentials to such are relief proceeding by declaratory judgment permitted but shall not be marriage sought.” case a divorce or annulment (The (Emphasis supplied.) section be found in 12 §836 P.S. (1953)). stipulation respecting petition The of facts for declara- February tory judgment filed on court July 6, on and decree filed its 1964. Section July 25, again 305, §1, on P. amended Act was 32 P.S. changes, controversies, 1964). (Supp. which relate tax subject way pertinent to the matter this case and in are not no affect it. provides special ... statute form of “Where ease, statutory remedy type specific must be fol supra §6, note 1. .” . . lowed.
556 conceive to difficult It is use. for its
authority in- the evident embody to language legislative clearer de- availability to broaden of the statute: tent an alterna- provide to thereby claratory judgments dif- equally It is remedy.3 tive, extraordinary, not an an renders line of decisions to any discover ficult more intendment legislative legitimate obvious and dealing decisions recent Court’s than this nugatory See judgments. of declaratory availability with 6 of Pennsylvania’s Section generally Notes, 793 L. Rev. 24 U. Pitt. Judgments Act, Declaratory (1963). holds majority established not an substitute for optional is more “a where and that it not be utilized
remedies
ob-
fundamental
is available.
appropriate remedy”
My
flies
it
conception
of the
is
remedy
this
jection
lan-
in the face of the
intent and
statute’s
squarely
fact
6
provides:
Section
“the mere
guage.4
expressly
or
susceptible
that an actual
threatened
controvery
of relief
common
or
through
general
law remedy,
or
equitable
extraordinary
legal remedy,
such
or
remedy
recognized
regulated by
privi-
statute
shall
debar a
not,
from the
lege
obtaining
declaratory judgment or decree
3
Philadelphia
Rose,
See
Mut. Fire Ins. Co. v.
Pa.
364
Mfrs.
15, 22-23,
316,
(1950) ; Reader,
A. 2d
70
319-20
Judicial
Review
Pennsylvania,
“Final”
Administrative Decisions
Rev.
67 Dick. L.
1,
(1962).
also the excellent historical
30
See
treatment
Estate,
476,
(1961).
in Johnson
403 Pa.
A so useful tool and Legislature its has so fostered patently I use, greatly pro regret the majority’s as ceeding time though statute never existed. long has since passed when this legislatively created, helpful and sound method of be adjudication should fully utilized.6
5 Supra, note 1. likely policy “It judicially that with a broadened ac ceptance declaratory suits, court time will be saved forestalling many originally suits based on conduct on founded premises. Declaratory incorrect Judgments pro The Uniform Act might ‘preventive repertory cedure be looked on as medicine’ in our legal large applied remedies should be ‘shaken well’ (Footnote omitted.) Notes, Pennsylvania’s doses.” Section 6 of Declaratory Judgments Act, 24 U. Pitt. Rev. (1963). Congressman (1928), Cong. “As said Gilbert Rec. 2030 declaratory judgment proceedings required under court is prospective only way tell ‘the victim to determine ” suspect is a mushroom a toadstool is to eat it.’ Keystone, Declaratory Daub, Judgments Penna. §1 Blumberg & Zoning Inc. v. Board Son, Adjustment (et Appellant). al., January 1965. Argued Before C. J., Mus- and Roberts, Cohen, O’Brien manno, Jones, Eagen, JJ.