
    Simon v. City of York et al.
    
      Arthur Markowitz and William W. Wogan, for petitioner.
    
      Frederick B. Gerber, contra.
    October 20, 1937.
   Niles, P. J.,

Petitioner alleges that since May 1,1937, he has maintained a junk business in the City of York, having leased from the now owner the premises whereon Samuel Williams, who died February 8, 1937, had conducted the business from February 1, 1923. The city officials have advised him to discontinue his business as a violation of an ordinance of March 29, 1935.

That ordinance prohibits the establishment of a junk yard or the enlargement of any then existing. It provides that any person violating shall, upon conviction before the mayor or alderman, be liable to a fine and imprisonment. Petitioner has been advised that the ordinance is unenforcible against him under the circumstances, and prays for a declaratory judgment construing his rights and for other appropriate relief.

The city filed an answer raising questions of law, the point of which is that the Declaratory Judgments Act of June 18, 1923, P. L. 840, and its supplement of April 25, 1935, P. L. 72, do not cover the case, and that the petition should be dismissed.

We are of the opinion that the situation presented is one in which the court has power to declare the rights, status, and legal relations of the parties as affected by the municipal ordinance. An actual controversy exists, with antagonistic claims which indicate imminent and inevitable litigation, and the court is satisfied that petitioner asserts a legal status in which he has a concrete interest challenged by the city, and that a declaratory judgment will serve to terminate the controversy, and that no statute provides a special form of remedy, such as contemplated by the act. Upon the facts set forth in the petition, a declaratory judgment or decree is appropriate and proper. The act is remedial. Its advantage is that it enables an issue to be determined before breach occurs.

And now, to wit, October 20, 1937, the questions of law raised by the City of York, respondent, are decided against it, and it is allowed 15 days to file an answer.

An exception is granted to defendants.  