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J. A51021/99
2000 PA Super 142
JULIA JUBAN A/K/A JULIA JUBON,
:
IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF
:
PENNSYLVANIA
JOHN HEPAK
::
v.
::
WILLIAM C. SCHERMER, HOLLAND
:
METRO INC. REALTORS, COLDWELL
:
BANKER, FROELICH REALTORS AND
:
DEE C. STEINHEISER AND ELAINE
:
STEINHEISER, HIS WIFE
::
APPEAL OF: WILLIAM C. SCHERMER,
: No. 666 Western District Appeal 1999
:
Appellant
:
Appeal from the Order Entered March 22, 1999,
in the Court of Common Pleas of Erie County
Civil Division, No. 11152-1996
BEFORE: DEL SOLE, FORD ELLIOTT, AND TAMILIA, JJ.
OPINION BY FORD ELLIOTT, J.:
Filed: May 5, 2000
¶ 1
Before us is an order denying appellant William C. Schermer's
("Schermer's") petition to assess damages and retain bond, filed after this
court affirmed a declaratory judgment entered in Schermer's favor. Because
we find that § 7538 of the Declaratory Judgments Act, 42 Pa.C.S.A. § 7532-
7541, ("DJA") authorizes a petition to assess damages based on a
declaratory judgment, we reverse and remand. A brief review of the factual
and procedural history of this case follows.
¶ 2
Julia Juban, a/k/a/ Julia Jubon ("Juban"), on behalf of her late father,
entered into two competing Articles of Agreement for the Sale of Real

J. A51021/99
Estate, one with Dee C. Steinheiser and Elaine Steinheiser for $95,000, and
the other with Schermer for $90,000. Juban, who had transferred title to
the property to Steinheisers on or about July 25, 1997, brought an action for
declaratory relief, asking the court to determine which of the two
agreements was valid. Following a non-jury trial, the court declared valid
the Schermer agreement. Both Juban and Steinheisers filed exceptions to
the trial court's decree nisi in favor of Schermer. The court denied the
exceptions and entered its decree nisi as a final order on March 30, 1998.
¶ 3
On April 21, 1998, Steinheisers filed an appeal to this court. In
response, Schermer filed a motion to set a bond hearing pursuant to
Pa.R.App.P. 1733.1 In his motion, Schermer claimed that Steinheisers
refused to allow Schermer to inspect the property, of which they retained
possession, and that Steinheisers had leased part of the property to an

1 That Rule provides in pertinent part:
Rule
1733.
Requirements for Supersedeas on
Agreement or Application
(a) General rule. An appeal from an order which is not
subject to Rule 1731 (automatic supersedeas of orders for
the payment of money) shall, unless otherwise prescribed
in or ordered pursuant to this chapter, operate as a
supersedeas only upon the filing with the clerk of the
court below of appropriate security as prescribed in this
rule. Either court may, upon its own motion or
application of any party in interest, impose such terms
and conditions as it deems just and will maintain the res
or status quo pending final judgment or will facilitate the
performance of the order if sustained.
Pa.R.App.P. 1733(a), 42 Pa.C.S.A.
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individual who was farming the leased parcel. (R.R. at 26a.) The court
ordered Steinheisers to post bond or pay cash security in the amount of
$50,000 and further ordered Steinheisers not to encumber the land or make
physical alterations to the land and its fixtures, including the fence. (R.R. at
29a.) Steinheisers did not post bond, however,2 and also allegedly removed
trees, removed a portion of the fence, and allowed 27 acres of the 60-acre
parcel to be farmed. (R.R. at 30a-31a; notes of testimony, 5/22/98 at 9-
10.)
¶ 4
On December 22, 1998, this court affirmed the trial court's judgment
in favor of Schermer. Steinheisers then transferred possession of the land
to Schermer on February 12, 1999, and on February 16, 1999, Schermer
filed the petition underlying this appeal. In his petition, Schermer claimed
that Steinheisers had caused damage to the property by removing trees and
allowing cultivation of approximately 27 acres of the land. Schermer also
claimed that Steinheisers had received benefits in the form of the fair rental
value of the home, land, and buildings and in the receipt of oil and gas
royalties since they took possession on July 27, 1997. (R.R. at 30a-31a.)
Steinheisers filed preliminary objections in the nature of a demurrer. The
trial court denied Schermer's petition by order entered March 24, 1999

2 Steinheisers claim they attempted to file a letter of credit in lieu of a bond
pursuant to Pa.R.App.P. 1734(a)(2), but that Schermer's counsel would not agree
to certain language required by the issuing bank. (R.R. at 35a.)
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"because no case law authority exists that would allow a damage claim in a
declaratory judgment action." (R.R. at 39a.) This timely appeal followed.
¶ 5
Our standard of review is well established:
When reviewing an order granting preliminary
objections in the nature of a demurrer, an appellate
court applies the same standard employed by the
trial court: all material facts set forth in the
complaint as well as all inferences reasonably
deducible therefrom are admitted as true for the
purposes of review. The question presented by the
demurrer is whether, on the facts averred, the law
says with certainty that no recovery is possible.
Where any doubt exists as to whether a demurrer
should be sustained, it should be resolved in favor of
overruling the demurrer.
Jackson v. Garland, 622 A.2d 969, 970 (Pa.Super. 1993) (citations
omitted).
¶ 6
The issue before us asks us to determine whether the DJA allows a
damage claim subsequent and supplemental to the entry of a declaratory
judgment. The parties cite the same two cases in support of both of their
positions; Kelmo Enterprises v. Commercial Union Ins., 426 A.2d 680
(Pa.Super. 1981), disapproved on other grounds, Standard Venetian
Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563
(1983); and Mueller v. State Police Headquarters, 532 A.2d 900
(Pa.Commw. 1987). We find neither case dispositive of the issue.
¶ 7
In Kelmo, this court addressed the issue whether the trial court erred
when it awarded attorneys' fees and costs to an insured who brought a
declaratory judgment action to establish his insurer's duty to defend. We
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concluded that such an award was appropriate where the insurer's refusal to
defend was unreasonable and in bad faith. Kelmo, 426 A.2d at 685. Thus,
while Kelmo lends support to Schermer's position, it is not dispositive
because both its facts and its holding are distinguishable.
¶ 8
In Mueller, a prisoner sought both mandamus and declaratory relief,
claiming that Department of Corrections officials violated their duty to file or
investigate criminal complaints after Mueller alleged criminal conduct on the
part of several corrections officers. The Commonwealth Court addressed the
issue whether a prisoner seeking a declaratory judgment as to his rights
under a Department of Corrections Administrative Directive and as to the
legal effect of certain actions by Department personnel could also seek an
assessment of compensatory and punitive damages under the Act. Mueller,
532 A.2d at 905. Finding that assessment of compensatory and punitive
damages was outside the scope of the DJA, the Commonwealth Court held
that the Act did not allow such a claim for damages. Id.
¶ 9
We find Mueller both factually and procedurally distinguishable
because Mueller made claims for damages before the court determined
whether he was entitled to declaratory relief. As a result, Mueller was not
claiming damages based on a declaration of rights in his favor. We also find
Mueller distinguishable because that court did not discuss the applicability
of § 7538 of the Act, discussed infra and relevant to this case, to Mueller's
claim for damages.
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J. A51021/99
¶ 10 We agree with the Mueller court, however, that "[t]he purpose of the
Declaratory Judgments Act . . . is to afford relief from uncertainty and
insecurity with respect to legal rights, status and other relations." Mueller,
532 A.2d at 905, citing Fidelity Bank v. Pennsylvania Turnpike
Commission, 498 Pa. 80, 444 A.2d 1154 (1982). We also agree that the
Act describes the power of courts of record under the Act as "the power to
declare rights, status, and other legal relations whether or not further relief
is or could be claimed." 42 Pa.C.S.A. § 7532. Nevertheless, the legislature
has also declared that the Act is to be remedial and is to be liberally
construed. 42 Pa.C.S.A. § 7541. Additionally, the Act provides for
supplemental judicial relief based on a declaratory judgment or decree.
42 Pa.C.S.A. § 7538. We set forth the relevant portion of that section:
§ 7538. Applications for relief
(a) General rule.--Judicial relief based on a
declaratory judgment or decree may be granted
whenever necessary or proper, subject to Chapter 55
(relating to limitation of time). If an application for
supplemental relief is deemed sufficient the court
shall, on reasonable notice, require any adverse
party whose rights have been adjudicated by a
previously entered declaratory judgment or decree to
show cause why further relief should not be granted.
Id.
¶ 11 We have found only one Pennsylvania appellate case tangentially
addressing the issue whether this section allows a party whose rights have
been established by declaratory judgment to file a subsequent and
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J. A51021/99
supplemental application for damages based on the declaratory judgment.
In Philadelphia Manufacturers Mut. Ins. Co. v. Rose, 364 Pa. 15, 70
A.2d 316 (1950), an insurer and insured sought a declaration as to their
respective rights under a policy of fire insurance when fire partially
destroyed one of the insured's buildings. The trial court found that the
policy did not cover the partially destroyed building, and the insured filed
exceptions; however the en banc court did not address the insured's
exceptions, concluding that a declaratory judgment proceeding was not an
optional substitute for an action of assumpsit. Id. at , 70 A.2d at 318.
¶ 12 The supreme court reversed, however, because the legislature had
recently amended the DJA to allow a party to seek declaratory relief even
where the controversy was susceptible of relief though a general common
law or equitable remedy. Id. at , 70 A.2d at 319, citing 12 P.S. § 836
(repealed). Noting that declaratory judgments were frequently used to
determine coverage in insurance cases, the supreme court opined that
regardless of the form of the declaration, whether for insurer or insured, the
declaration would end the controversy. Id. at , 70 A.2d at 320.
According to the supreme court, "The proceeding should not be dismissed
because in one contingency it may be necessary, either by supplementary
proceedings in this case or by independent action, based on what may be
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J. A51021/99
adjudicated in this case, to determine the amount of the damage
payable." Id., citing 12 P.S. § 8383 (emphasis added).
¶ 13 While we recognize that this statement in Rose is dictum, we are
mindful that "when presented with an issue for which there is no clear
precedent, our role as an intermediate appellate court is to resolve the issue
as we predict our Supreme Court would do." State Farm Mutual
Automobile Ins. Co. v. Universal Underwriters Ins. Co., 657 A.2d
1252, 1260 (Pa.Super. 1995), reversed on other grounds, 549 Pa. 518,
701 A.2d 1330 (1997). Based on Rose, supra, we predict that our supreme
court would interpret § 7538 to allow a party whose rights have been
established by declaratory judgment to file a supplemental application for
damages based on the declaratory judgment. This is particularly true in a
case such as this, in which the court is exercising its fundamental power to
enforce its own order and judgment by entering a damage award. See
Commonwealth v. Shaffer, 551 Pa. 622, , 712 A.2d 749, 751 (1998)
("it is axiomatic that a court has inherent power to enforce its own orders of
court").
¶ 14 We find support for our conclusion in case law from other jurisdictions
that have adopted the Uniform Declaratory Judgments Act, on which both
12 P.S. § 838 and 42 Pa.C.S.A. § 7538 are based. Section 8 of the Uniform
Act, entitled "Supplemental Relief," provides:

3 12 P.S. § 838 is the predecessor to § 7538.
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J. A51021/99
Further relief based on a declaratory judgment or
decree may be granted whenever necessary or
proper. The application therefor shall be by petition
to a court having jurisdiction to grant the relief. If
the application be deemed sufficient, the court shall,
on reasonable notice, require any adverse party
whose rights have been adjudicated by the
declaratory judgment or decree, to show cause why
further relief should not be granted forthwith.
Unif. Declaratory Judgments Act § 8, 12A U.L.A. 395 (1996).
¶ 15 Many of the jurisdictions adopting this section of the Uniform Act have
upheld an award of damages or a money judgment as a consequence of an
award of declaratory relief. See e.g., Paduch v. City of Johnson City,
896 S.W.2d 767, 771 (Tenn. 1995) (the further relief authorized by the
Uniform Declaratory Judgment Act, codified as Chapter 14 of Title 29 of the
Tennessee Code Annotated, may include the award of damages wherever
such an award is necessary and proper); Goodover v. Lindey's Inc., 255
Mont. 430, , 843 P.2d 765, 770 (1992) (Uniform Declaratory Judgments
Act enables the trial court to retain jurisdiction and to grant further relief as
it deems necessary and proper to enforce the declaratory judgment; court is
not bound by relief requested in the complaint but may order any relief
needed to effectuate the judgment). In Goodover, the Montana supreme
court affirmed the trial court's determination that both monetary damages
and coercive relief were necessary to provide complete relief to Goodover
after the court determined that Lindey's encroached on Goodover's property.
See also Agricultural Services, Inc. v. City of Gooding, 120 Idaho 627,
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, 818 P.2d 331, 332 (1991) (party to a declaratory judgment action may
properly seek damages or other monetary relief to which he may be entitled;
once a court has determined the merits of the controversy and has issued a
judgment, the court can proceed to enforce that judgment with such orders
as are necessary); Dry Canyon Farms, Inc. v. U.S. Nat. Bank of Oregon,
96 Or.App. 190, , 772 P.2d 1343, 1344-1345 (1989) (bank which
obtained declaratory judgment establishing that it had a valid security
interest in cash proceeds of a crop in possession of a corporation, was not
foreclosed from obtaining damages on a request for supplemental relief by
its failure to claim such damages in its original declaratory proceeding);
Satterfield v. Layton, 669 S.W.2d 287, 289 (Mo.Ct.App. 1984) (trial court
may give money judgment when such is warranted in declaratory judgment
action).
¶ 16 In Thomas v. Cilbe, Inc., 104 So.2d 397, 402 (Fla.Dist.Ct.App., 2d
Dist. 1958), the Florida court of appeals held that a money judgment may be
obtained for damages sought as incidental or supplemental relief pursuant to
a declaratory decree. The appellant in Thomas initially sought a declaration
as to the validity and construction of certain leases and subleases involving
property he owned. After the chancellor entered a declaratory decree,
appellant filed petitions for supplemental relief based on the declaratory
decree, seeking relief in the form of rents, repairs, taxes, costs, and
attorneys' fees. Id. at 398. The Thomas court noted that Florida's statute,
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J. A51021/99
derived from the Uniform Declaratory Judgments Act, authorizes "in a proper
case an additional and distinct adjudication based upon and to supplement
the declaratory decree." Id. at 400. The Thomas court then quoted
extensively from 2 Walter H. Anderson, Actions for Declaratory Judgments
§ 451 (2d ed. 1951). Thomas, 104 So.2d at 401. We set forth the relevant
text from Anderson:
It is now firmly established beyond peradventure of
doubt that the supplemental relief contemplated by
the statutes is not limited to further declaratory
relief, and such further relief may include an
assessment of damages or other coercive relief
which may be obtained by a petition in the same
action and in the same court in which the declaratory
relief was granted.
. . . .
The supplemental relief may be any relief
necessary to make effective the declaratory
judgment, even though it consists in the granting of
a money judgment in the case, after the rendition of
the declaratory decree.
It would seem that the sounder rule is that the
supplemental or additional relief may be granted in
the same action, or cause, and that the court, upon
a sufficient pleading having been filed therefor, so
long as the court avoids rendering a judgment
deciding merely a moot, fictitious, or colorable
question, it may grant any relief, whether
declaratory or executory, to carry into effect its
declaratory order, judgment or decree. . . .
. . . .
. . . It would be unreasonable to hold that a court
had jurisdiction to determine the rights of the
parties, but the successful party had no remedy to
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enforce such rights after they had been
determined. . . .
Anderson at 1056-1059. As the Thomas court concluded, "[W]e can see
that in a declaratory proceeding . . . a multiplicity of suits can be avoided,
while an adequate, expedient, and inexpensive remedy can be afforded for
litigants in a single action." Thomas, 104 So.2d at 403. See also Dry
Canyon Farms, Inc., 772 P.2d at 1345 (quoting Anderson with approval).
¶ 17 The federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq., also
provides for further relief based on a declaratory judgment. 28 U.S.C.A.
§ 2202. Section 2202, entitled "Further relief," provides that "Further
necessary or proper relief based on a declaratory judgment or decree may
be granted after reasonable notice and hearing, against any adverse party
whose rights have been determined by such judgment." Id. Courts
construing that section have allowed damages or a money judgment in a
declaratory judgment proceeding. See Freed v. Travelers, 300 F.2d 395,
399 (7th Cir. 1962) (district court may grant substantive relief in the form of
a monetary judgment in a declaratory judgment proceeding); Edward B.
Marks Music Corp. v. Charles K. Harris Music Pub. Co., 255 F.2d 518,
522 (2nd Cir. 1958) (court could award damages for infringement of a
copyright to supplement a declaratory judgment that plaintiff was the sole
owner of the copyright even though damages had not been claimed in the
complaint), cert. denied, 358 U.S. 831 (1958); Hobson v. Eaton, 327
F.Supp. 74, 80 (N.D.Ohio 1970) (even where state court retained jurisdiction
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J. A51021/99
to hear and decide issues as to damages from the wrongful issuance of a
temporary restraining order, federal court had authority under § 2202 to
render the same relief).4 As one court observed, the purpose of the statute
permitting further relief after declaratory judgment is to carry out the
principle that every court, with few exceptions, has the inherent power to
enforce its own decrees and make such orders as may be necessary to
render them effective. In re Bicoastal Corp., 156 B.R. 327, 331 (Bankr.
M.D. Fla. 1993). As a result, the Bicoastal court further opined that neither
a completed appeal nor a considerable delay after the trial court's ruling
deprives the trial court of authority to grant further relief under the
Declaratory Judgments Act. Id.
¶ 18 Based on the foregoing, we therefore find that § 7538 of the DJA
authorized Schermer to file a supplemental petition to assess damages
based on the declaratory judgment in his favor. We recognize, however,
that the legislature has delegated to the trial court the task of determining
whether such supplemental relief is "necessary and proper" in a particular
case. 42 Pa.C.S.A. § 7538. See also Paduch, 896 S.W. 2d at 771 (before
an award of damages can be affirmed, an appellate court must determine

4 It has also been held that a motion for further relief based on a declaratory
judgment was timely when it was filed less than two months after a decision by an
appellate court affirming a district court decision. Horn & Hardart Co. v.
National R.R. Passenger, Corp., 659 F.Supp. 1258, 1263 (D.C. Dist. Ct. 1987),
affirmed, 843 F.2d 546 (D.C. Cir. 1988), cert. denied, 488 U.S. 849 (1988). See
also Dry Canyon Farms, 772 P.2d at 1345-1346 (trial court has jurisdiction to
hold a hearing and grant supplemental relief after appellate judgment).
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whether the damages awarded were "necessary or proper" within the
statute). In this case, however, the trial court made no such determination,
having concluded that "no case law authority exists that would allow a
damage claim in a declaratory judgment action." (R.R. at 39a.)
¶ 19 As a result, we reverse the trial court's order dismissing Schermer's
petition and remand for that court to consider Schermer's petition
consistently with this opinion.
¶ 20 Reversed and remanded. Jurisdiction is relinquished.
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