Appeal, No. 55, Jan. T., 1962, from order or Court of Common Pleas of Montgomery County, No. 61-1717, in case of Mary E. McWilliams, Seth D. Seltzer, Jr., Kenneth Peter Barrow et al. v. Anne E. McCabe and Richard I. Rubin. Order reversed. Petition for declaratory judgment.
Thomas M. Garrity and David N. Weiner, with them Wisler, Pearlstine, Talone & Gerber, and Robinson, Greenberg & Lipman, for appellants.
Victor J. Roberts, with him Robert L. Trescher, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Before passing upon the question raised by the appeal, namely, whether or not the lower Court properly assumed jurisdiction in a Declaratory Judgment proceeding, we shall first dispose of the appellees' petition to quash the appeal to this Court based on the contention that the Order of the lower Court dismissing preliminary objections to the petition was interlocutory. The right of appeal raising a question of jurisdiction under the Act of 1925 has proved so perplexing to the bar that we shall consider it at some length.
The appellants contend that their right to appeal is authorized by the Act of March 5, 1925, P.L. 23, § 1 (12 PS § 672 et seq.) which provides: "Wherever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, as the case may require; and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments."
The provisions of this section, insofar as they apply to the practice and procedure in actions governed by the Rules of Civil Procedure, have been suspended by Rule 1451 of the Rules of Civil Procedure, except insofar as they relate to appeals. Therefore, as pointed out by Mr. Justice CHIDSEY, in a footnote to his opinion in Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 102 A.2d 170, "the right to appeal from a preliminary determination of jurisdiction has been preserved."
In Dozor Agency v. Rosenberg, 403 Pa. 237, 169 A.2d 771, defendants appealed from the Order of the lower Court which dismissed their respective preliminary objections. The appeal was taken under the Act of 1925 on the ground that Equity had no jurisdiction
of the complaint since jurisdiction lay by statute solely and exclusively in the Insurance Commissioner of Pennsylvania. In that case the Court said (pages 240, 242): "However, generally speaking, an Order overruling preliminary objections is interlocutory and not appealable: Grosso v. Englert, 381 Pa. 351, 113 A.2d 250. That general rule is, however, subject to the exception that if a question of jurisdiction is involved that question is appealable under the Act of March 5, 1925: Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Powell v. Shepard, 381 Pa. 405, 113 A.2d 261. ... We believe that defendants' contention that The Insurance Unfair Practices Act gives the Insurance Commissioner exclusive jurisdiction and ousts all jurisdiction from Courts of Equity, raises a question of jurisdiction under the Act of 1925, although as we shall see there is no merit in this contention."
We have been unable to find any case involving the application of the Act of 1925 to declaratory judgment proceedings. However, in Strank v. Mercy Hospital of Johnstown, supra, it was construed in connection with an action in mandamus and the language of the statute there considered is strikingly similar to that in the Uniform Declaratory Judgments Act.
The Act of June 8, 1893, P.L. 345, § 1, as amended (the most recent amendment being the Act of May 13, 1925, P.L. 664, 12 PS § 1911) provides: "The several courts of common pleas shall ... have the power to issue writs of mandamus. ..." The Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, § 1, 12 PS § 831, provides: "Courts of record, within their respective jurisdictions, shall have power to declare rights, status and other legal relations. ..."
In the Strank case we said: "Since the present appeal is under the Act of March 5, 1925, supra, the sole question within the scope of our inquiry on this appeal is whether the cause of action sued upon and sought to
be enforced by mandamus against a private institution, is within the general class of controversies committed to the lower court: see Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106. In the Witney case, Justice (now Chief Justice) HORACE STERN, reviewed at length the cases in Pennsylvania dealing with the question of jurisdiction of subject matter and then enunciated principles that guide us in resolving the instant question. It was there held that the test for determining whether a court has jurisdiction of the subject matter is the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs, and the controlling question is whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case. It was further held that the Act of 1925 was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined. Again in Upholsterers' International Union of North America v. United Furniture Workers of America, C.I.O., et al., 356 Pa. 469, 473, 52 A.2d 217, Mr. Justice JONES, speaking for the Court, declared that, '... The thing of chief importance on a question of jurisdiction of subject-matter is not whether the plaintiff may recover in the particular forum on the cause of action pleaded but whether the court is empowered to hear and determine a controversy of the character involved: ...'."
In Main Cleaners & Dyers, Inc. v. Columbia Super Cleaners, Inc., 332 Pa. 71, 2 A.2d 750, Mr. Justice (later Chief Justice) STERN, aptly said: "A court may have jurisdiction over the subject-matter of litigation even though the statement of claim or the bill of complaint be obviously demurrable as not setting forth a good cause of action. The test of jurisdiction is whether the court has power to enter upon the inquiry, not
whether it may ultimately decide that it is unable to grant the relief sought in the particular case: Kaisha, Ltd. v. Ewing-Thomas Corporation, 313 Pa. 442, 446; Heffernan's Appeal, 121 Pa. Superior Ct. 544, 547. The question of jurisdiction relates solely to the competency of the court to determine controversies of the general class*fn1 to which the case presented for its consideration belongs: Skelton v. Lower Merion Township, 298 Pa. 471, 473; Grime v. Department of Public Instruction, 324 Pa. 371, 378; Massachusetts Bonding & Insurance Co. v. Johnston & Harder, Inc., 330 Pa. 336, 340. Thus, in Welser v. Ealer, 317 Pa. 182, it was held that the court had jurisdiction over a suit for damages for injuries resulting from an automobile accident, although plaintiff was an employee of defendant and was injured in the course of his employment and thereby precluded from recovering damages for his injury by any method other than that prescribed in the Workmen's Compensation Act."
In Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491, the Court said (page 95): "'... Jurisdiction of the cause of action, as used in the statute, relates "solely to the competency of the particular court to determine controversies of the general class to which the case then presented for ...