¶1Concurring and Dissenting Opinion by
¶2With the result reached by the majority of this Court I am in full accord. With certain statements made in the majority opinion, I am in complete agreement.
¶3*659I agree that: (1) whether á court should entertain a declaratory judgment, proceeding is a matter within the discretion of the court; Eureka Casualty Company v. Henderson, 371 Pa. 587, 92 A. 2d 551; Lifter Estate, 377 Pa. 227, 103 A. 2d 670; (2) “. . . the vital factor in the assumption of jurisdiction is the presence of antagonistic claims indicating imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy:...”: Capital Bank and Trust Company’s Petition, 336 Pa. 108, 111, 6 A. 2d 790.
¶4The area of my disagreement with the majority opinion is whether the existence of another available remedy per se requires that the court refuse to entertain declaratory judgment. The majority opinion takes the position that the existence of such other remedy per se requires the refusal of declaratory judgment: I take the position that the existence of such other available remedy is merely one factor to be taken into consideration when the court exercises its discretion.
¶5A study of the background of declaratory judgment in Pennsylvania is most enlightening. Until 1935, the effect of many of our decisions was that, if there did exist any other available remedy, per se declaratory judgment would not lie: Johnson Estate, 403 Pa. 476, 171 A. 2d 518 (wherein are set forth in footnote pp. 480, 481, the decisions so holding). At the same time, both in will and nonwill cases, our Court did entertain declaratory proceedings even though there was another remedy available: Johnson Estate, 403 Pa. 476, supra (wherein these cases are set forth in' footnotes p. 482).. Jurisdictions, other than Pennsylvania, almost uniformly held during this period under the same Uniform Act that declaratory judgment would lie, even though another remedy was available.
¶6' In order to bring Pennsylvania in line with the other jurisdictions and effect the spirit and the letter *660of the Uniform Declaratory Judgments Act, Section 6 of our Act'was' amended: Act of April 25, 1935, P. L. 72, §1, 12 P.S. §836. That amendment was presumably drawn by former Chief Justice von- Moso'hzi'sker'. When that' amendment, reached the legislature, the legislative committee, in order to further clarify the thought in the von Moschzisker amendment, added , an amendment to that amendment and the Act was thus amended. After the Act was thus amended, Justice Linn by his language in Allegheny County v. Equitable Gas Co., 321 Pa. 127, 183 A. 916, construed the language of Section 6 in such manner that the result was the same as before the 1935 amendment. Then came Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 274, and Valley Railroad Co. v. Delaware, Lackawanna & Western Railroad Co., 346 Pa. 579, 31 A. 2d 276, in which this Court refused declaratory judgment simply because of the availability of another remedy.
¶7To cure this situation, the legislature finally again-amended the Act on May 26, 1943 (P. L. 645, §1,- 12 PS §836). The effect of that amendment is clear, i.e., that the existence of another' remedy, in law or in equity, will not per se bar declarative relief. Our courts from that time on have uniformly held, with two' exceptions, that the existence of another remedy will not per se bar declaratory relief, but it is simply one factor to be consideréd by the court in the exercise of its discretion. These two exceptions are Wirkman v. Wirkman Co., 392 Pa. 63, 66, 139 A. 2d 658, and Holt Estate, 405 Pa. 244, 174 A. 2d 874. ' In Wirkman the only decisional .point was that the parties, having- contractu-ally bound themselves' to pursue arbitration-to the-ex-' elusion óf prior judicial relief,' were concluded from seeking declaratory judgment' and ' the statement in Wirkman that “A declaratory judgment should not be granted where a more appropriate remedy is available”*661is dicta. Both Wirlcman and Holt rely on Stofflet & Tillotson, snpra, the effect of which was nullified by the 1943 amendment to the Act.
¶8That the effect of the 1943 amendment was clearly intended to nullify the pre-1943 decisions is rendered abundantly clear by the decision ivritten by Justice Linn in Philadelphia Manufacturers Mutual Fire Insurance Company v. Rose, 364 Pa. 15, 70 A. 2d 316, and the decision of Justice Arnold in Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 391, 100 A. 2d 595.
¶9In my opinion, to hold that the existence of another available remedy per se bars declaratory judgment is to turn the clock backward, to ignore the clear legislative mandate, and to confuse both the bench and the bar. It is my opinion that, if there is a statutorily provided remedy, such remedy must be pursued, but, if there is simply another available remedy not statutorily provided, the existence of such remedy should be only one factor to be weighed by the court in its discretion, and it should not be the only factor.