Rule 1601. Action for Declaratory Relief Alone. Jury Trial. Waiver.
(a) A plaintiff seeking only declaratory relief shall commence an action by filing a complaint captioned Action for Declaratory Judgment. The practice and procedure shall follow, as nearly as may be, the rules governing the civil action.
(b) If the right to trial by jury of disputed issues of fact exists in such an action, it shall be deemed waived unless demanded in the time and manner provided by Rule 1007.1.
Rule 1601(b) gives no specific guidance on the existence of a right to jury trial. It could not, in the face of Rule 128(f). Section 7539(b) of the Judicial Code provides:
(b) Jury trial.When a proceeding under this subchapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
The existence of a right to jury trial on disputed issues of fact will be a matter of determination in each action where only declaratory relief is sought. If the right is claimed and disputed, the court must determine the question on the basis of the nature of the cause of action, the right to be enforced and the other civil action which would be brought to enforce it if declaratory judgment did not exist. The flexible Federal practice under Fed. R. Civ.P. 38, 39 and 57, including the procedure for the jury trial of selected issues, may be helpful. Pa. R.C.P. 1038.3 may also be applicable.
The provisions of this Rule 1601 amended December 16, 2004, effective July 1, 2004, 34 Pa.B. 9. Immediately preceding text appears at serial page (276603).
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