Appeal, No. 401, Jan. T., 1962, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1959, No. 199, in case of Harold A. Stevenson v. Elias H. Stein, Provident Tradesmens Bank & Trust Company, Leonard A. Gottlieb et al. Judgment affirmed; reargument refused December 2, 1963.
Lawrence J. Richette, for appellant.
Jerome J. Shestack, with him George P. Williams, III, Sidney B. Gottlieb, and Schnader, Harrison, Segal & Lewis, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
On November 30, 1958, sixty-four acres of land located in the Eastwick section of Philadelphia, were condemned by the Redevelopment Authority of Philadelphia (Authority). The record title owner as of the date of the condemnation was the defendant-appellee, Elias H. Stein.
On June 4, 1959, the plaintiff-appellant, Harold Stevenson, filed a petition for a declaratory judgment seeking a declaration that he was the legal owner of the land at the date of condemnation by virtue of his having held continuous adverse possession thereof for a period of more than twenty-one years. He also asked that certain unsatisfied mortgages be declared discharged.*fn1
By agreement, the issue was tried before a judge without a jury. The trial consumed twenty-four trial days and the testimony covers more than 4500 pages of the record.
The trial judge found that Stevenson had not exercised open, notorious, hostile, exclusive and continuous possession of the land, or any portion thereof, for a
twenty-one year period, and entered an appropriate order in favor of the defendants. Exceptions to the findings, conclusions and decree were dismissed by the court en banc. This appeal followed.
The first question for decision is the availability of the action of declaratory judgment in a case of this nature. Even though the granting of such a petition is a matter that lies within the judicial discretion of the court, and even though both parties join in asking such a judgment, the availability question must be determined on appeal: Stofflet and Tillotson v. Chester H.A., 346 Pa. 574, 31 A.2d 274 (1943); McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222 (1962). Ordinarily declaratory judgment does not lie where there is a dispute as to the facts, or such controversy may arise. So too, such a judgment should not be granted where a more appropriate remedy is available: ...