Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1973, No. 1513, in case of Arel Realty Corporation v. Meyers Bros. Parking Corp.
Alan C. Gershenson, with him Marvin Comisky, and Blank, Rome, Klaus & Comisky, for appellant.
Samuel P. Lavine, and Steinberg, Greenstein, Gorelick & Price, submitted a brief for appellee.
Watkins, P. J., Jacobs, Cercone, Price, Van der Voort, and Spaeth, JJ. (Hoffman, J., absent). Opinion by Cercone, J. Hoffman, J., did not participate in the consideration or decision of this case.
[ 237 Pa. Super. Page 88]
This is an appeal from the order of the court below granting the plaintiff-appellee, Arel Realty Corp., a declaratory judgment. For the reasons set forth below, we reverse and remand.
On January 10, 1973, the appellee filed a petition for a declaratory judgment under the Uniform Declaratory Judgments Act.*fn1 That petition requested the court declare that, under the provisions of a long-term lease between the parties, the appellant (lessee) was not entitled to reduce the amount of its rent by taking as a credit the use or occupancy tax it paid to the School District of Philadelphia. The appellant responded on February 21, 1973, by filing preliminary objections in the nature of a demurrer and a supporting memorandum of law. On March 5, 1973, the appellee filed a memorandum of law in support of its petition for declaratory judgment. Apart from the final order from which the instant appeal was
[ 237 Pa. Super. Page 89]
lodged, no other relevant entries appear on the lower court's docket. This fact is crucial in view of the other events that transpired.
The docket does not reveal that in May of 1973, the appellee filed a supplementary brief and an application for permission to amend its petition for declaratory judgment.*fn2 The appellant then countered with an additional memorandum of law in which it opposed the application to amend and renewed its preliminary objections. On June 4, 1973, and again on December 12, 1974, the lower court entertained arguments on the application to amend and on the preliminary objections as applied to both the original petition and the amended petition. On December 19, 1974, the lower court granted declaratory judgment and the instant appeal followed.
Appellant contends the lower court erred when it granted declaratory judgment to the appellee notwithstanding the fact that appellant was never afforded the opportunity to file a factual answer to either the petition for declaratory judgment or the amended petition for declaratory judgment. We agree.
The Act of May 22, 1935, P.L. 228, 12 P.S. §§ 847-853, supplementing the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, 12 P.S. §§ 831-846, defines the procedure to be followed whenever a petition for a declaratory judgment is filed. Section 5 of the supplemental act, 12 P.S. § 851, states:
"A defendant may by his answer, without first replying to the averments of fact in the petition, raise any question of law which goes either to the jurisdiction of the court or to petitioner's legal right to have the disputed matter determined in this character of proceeding, and any such ...