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GUERRA v. GALATIC (ET AL. (01/21/58)

January 21, 1958

GUERRA
v.
GALATIC (ET AL., APPELLANT).



Appeal, No. 87, April T., 1957, from judgment of Court of Common Pleas of Greene County, Dec. T., 1954, No. 144, in case of Joseph Guerra v. John F. Galatic et al. Judgment affirmed.

COUNSEL

W. Robert Thompson, with him Thompson and Baily, for appellant.

John I. Hook, Jr., with him Scott & Hook, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 185 Pa. Super. Page 387]

OPINION BY WRIGHT, J.

Joseph Guerra filed a petition for a declaratory judgment alleging therein that he and the Galatics, Donleys, and Blacks were the owners of property fronting respectively twenty-five feet, twenty-five feet, fifty feet, and fifty feet on Market Street in the Borough of Carmichaels, being in all Lots Nos. 49, 50, and 51 in the original borough plan; that petitioner had caused a survey to be made showing the property lines and the locations of the buildings thereon which survey showed various discrepancies and encroachments; and praying for a declaratory judgment setting forth the property rights of the various parties and designating the proper location of the propery lines. Answers were filed by the Galatics and the Donleys. The Borough of Carmichaels did not file an answer but entered an appearance. Although they were served, the Blacks did not answer or appear. Following the taking of testimony, the trial judge filed an adjudication to which exceptions were taken by the borough. From the final judgment thereafter entered, the borough has appealed.

Reduced to its simplest terms, the controlling issue on this appeal is whether the court below properly determined

[ 185 Pa. Super. Page 388]

    the actual location on the ground of the northeast corner of Market and South Streets in the Borough of Carmichaels. The controversy was apparently accelerated by the construction of return curbs following the paving of Market Street. The properties in question together constitute a square one-half block bounded by Market Street on the west, South Street on the south, Maple Alley on the east, and Gooseberry Alley on the north. While the judgment of the lower court established new property lines, the individual owners have not appealed. We are therefore concerned solely with the contention of the borough that the result of the judgment below is to approve an encroachment by Guerra for a space of three feet and six inches on South Street.

Counsel for appellant here questions for the first time the availability of declaratory judgment procedure. The Uniform Declaratory Judgments Act of 1923, P.L. 840, 12 P.S. 831 et seq., as supplemented by the Act of 1935, P.L. 228, 12 P.S. 847 et seq., was originally narrowly interpreted. See Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A.2d 274. However, following the amendment of 1943, P.L. 645, the interpretation of the availability of the proceeding was greatly broadened. See Philadelphia Manufacturers Mutual Fire Insurance Co. v. Rose, 364 Pa. 15, 70 A.2d 316. It is now acceptable even though under the facts a common law action might have been brought: Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 100 A.2d 595. We have concluded that the lower court properly took jurisdiction in the instant situation.*fn1

[ 185 Pa. Super. Page 389]

Appellant's counsel further contends that the lower court should not have taken jurisdiction in the case at bar because there were facts in dispute which should not have been decided without a jury trial, citing Ladner v. Siegel, 294 Pa. 368, 144 A. 274. Any dictum in the cited case which tends to support appellant's position cannot be considered as controlling. Section 6 of the Supplemental Act of 1935, P.L. 228, supra, 12 P.S. 852, expressly provides that, if no demand for jury trial is made, all issues of fact, as well as those of law, may be determined and found by the court as in equity cases. Before taking testimony in the instant case, the hearing judge stated for the record that "the parties have agreed that the case may be heard by the court without a jury". Since there was no demand for a jury trial, we are clearly of the opinion that the lower court was warranted in proceeding according to equity ...


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