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ALLEN H. SMITH v. COUNTY YORK (07/28/78)

decided: July 28, 1978.

ALLEN H. SMITH, APPELLANT
v.
COUNTY OF YORK, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County in case of County of York v. Allen H. Smith, No. 1 August Term, 1973.

COUNSEL

Allen H. Smith, Appellant, for himself.

Lewis P. Sterling, County Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 37 Pa. Commw. Page 48]

Allen H. Smith (Appellant) appeals a declaratory judgment of the Court of Common Pleas which limits the total amount of commissions which he may keep as

[ 37 Pa. Commw. Page 49]

Recorder of Deeds for York County to $7,500.00 per year. He asserts that the use of an action for declaratory judgment to resolve this controversy was improper; that the court below should not have resolved this matter by referring to a law which had not been raised by the petitioner in his petition for a declaratory judgment and that in any event that the court below misconstrued the cited law; that all necessary parties were not joined and that the Judges who heard this case should have recused themselves. We disagree with all these contentions and affirm the court below.

The County of York (York) requested a declaratory judgment to determine the salary to which Appellant was entitled during the period from January 1, 1972 to December 31, 1973, and what portion of fees which he had collected incident to his job duties was properly his. York was prompted to bring this action because of certain changes in the Constitution of Pennsylvania*fn1 and a change in the County Code which provided a new salary schedule for county officers.*fn2 The court held that these changes did not affect Appellant because they took effect during his term of office and Article 3, Section 27 of the Constitution of the Commonwealth of Pennsylvania forbade the increase or decrease of salary during an office holder's term in office. The court's response to Appellant's first contention has not been appealed and therefore is not before us. The court below then held that, pursuant to the Act of June 25, 1966, P.L. 1556, as amended, 16 P.S. § 1555-2 (1555-2), the amount which Appellant could

[ 37 Pa. Commw. Page 50]

    retain from commissions which he collected in the course of duties was limited to $7,500 per annum. This had not been raised by York's petition for declaratory judgment, but the court nevertheless relied on the provisions of this Act because the matter had been formally presented to it for determination. York had specifically requested a decree as to the disposition of fees collected and held by Appellant but it had not raised the bearing of 1555-2. It is this application 1555-2 to Appellant from which Appellant appeals.

Relief by way of declaratory judgment was clearly proper in this case. Granting of relief by way of declaratory judgment is discretionary for the court where it " is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation." Section 6 of the Uniform Declaratory Judgments Act, Act of June 18, 1923, P.L. 840, as amended, 12 P.S. § 836 (Act) (emphasis added). See, e.g., Greenberg v. Blumberg, 416 Pa. 226, 206 A.2d 16 (1965). Although the petition did not set forth with any specificity the existence of an actual controversy or antagonistic claim*fn3 which indicates imminent and inevitable litigation, any deficiency was cured when Appellant joined in and raised no exceptions to a pre-trial order setting forth the facts necessary for the resolution of the petition. Looking to Appellant's conduct, the court could be satisfied that the requisite antagonistic claims and imminent litigation were present.

We disagree with the contention that the court below did not have the power to construe 1555-2 because it had not been raised in the petition. It is our view that a petition for declaratory judgment is equitable in nature and when a court assumes jurisdiction, ...


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