Recent Developments In Declaratory Relief, 10 Temple Law Quarterly 233 (1936)
The way of the reformer, like that of the transgressor, is hard. It will be recalled that the Pennsylvania Supreme Court, after an excellent start in 1925 in the application of the procedure for a declaratory judgment in Karihey's Petition had fallen into regrettable error in a number of later cases by assuming that a declaratory judgment could· not be sought or granted when any other "established" remedy was available. This was in direct conflict with the express words of the Declaratory Judgments Act to the effect that declaratory judgments may be rendered "whether or not further relief is or could be claimed", i. e.; whether further or coercive relief (I) is also claimed; (2) is not but could be claimed; or (3) is not and could not be claimed. Clearly possibilities (I) and (2) indicate that declaratory relief may be demanded cumulatively or in the alternative notwithstanding the fact that a common law or equitable remedy is also or might instead have been sought. In most of the Pennsylvania cases this was recognized, for in the vast majority of Pennsylvania cases some other remedy was available, but the petitioner preferred and received a declaration of rights, which was appropriate and adequate relief. Yet the lack of judicial uniformity in the matter left the outcome of any particular litigation uncertain, for the objecting party would necessarily undertake to plead that another remedy was available, and the final position of the court in a particular case seemed unpredictable. Lawyers dislike judicial caprice, so that the doubt militated against widespread use. of the declaratory judgment in Pennsylvania.
Date of Authorship for this Version
Karihey's Petition, Von Moschzisker
Borchard, Edwin, "Recent Developments in Declaratory Relief" (1936). Faculty Scholarship Series. Paper 3497.