Pennsylvania’s Clarifying Amendment for Declaratory Judgments

Edwin Borchard, Yale Law School


This amendment, drafted by Chief Justice von Moschzisker after his retirement from the court, has a history going back to 1933. It was designed to rescue the Supreme Court of Pennsylvania from a profound error in having emasculated the Declaratory Judgments Act of Pennsylvania by judicial legislation. Briefly, they had professed to discover, in the face of the clear wording of the Declaratory Judgments Act to the contrary, that the Act could not be used where another remedy was available. The fact is that in most of the judgments they had rendered, another remedy would have been available. But the announcement, reiterated as recently as the two cases of Stofflet & Tillotson v. Chester Housing Authority, and Valley R. R. v. Delaware, Lackawama & Western R. R., both decided on March 22, 1943, that a declaratory judgment would not be granted where another remedy was available, was enough to discourage lawyers from seeking to use the declaratory judgment procedure. It became a trap rather than an aid in the administration of justice.