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SMITH v. SAFEGUARD MUTUAL INSURANCE COMPANY (03/20/68)

decided: March 20, 1968.

SMITH
v.
SAFEGUARD MUTUAL INSURANCE COMPANY, APPELLANT



Appeal from decree of Court of Common Pleas of Philadelphia County, June T., 1966, No. 1777, in case of Carl E. Smith v. Safeguard Mutual Insurance Company.

COUNSEL

Arlin M. Adams, with him William T. Hangley, and Schnader, Harrison, Segal & Lewis, for appellant.

Arnold Levin, with him Freedman, Borowsky & Lorry, for appellee.

Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 212 Pa. Super. Page 84]

The appellee claimed damages under the uninsured motorist provision of an insurance policy issued by the appellant. As the parties were unable to agree on the amount of damages, the dispute was submitted to arbitration pursuant to the following standard provision in the policy:

[ 212 Pa. Super. Page 85]

"8. Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement." (Emphasis added.)

An award was made in appellee's favor and appellee's attorney filed a praecipe for judgment on the award with the prothonotary who entered judgment. Appellant moved to strike the judgment on the basis that the entry of judgment was beyond the authority of the prothonotary. The court below refused the motion to strike. We reverse.

If this arbitration were controlled by statute, judgment could not be entered on the arbitration award without confirmation by the court. Three statutes in Pennsylvania cover voluntary arbitration and all require court confirmation before judgment may be entered: (1) the Act of January 12, 1705, 1 Sm. L. 49, 5 P.S. § 8; (2) the Act of June 16, 1836, P. L. 715, 5 P.S. §§ 1-7; (3) the Act of April 25, 1927, P. L. 381, 5 P.S. § 161 et seq. It has been held that the provisions of the first two statutes are not applicable unless referred to in the agreement to arbitrate. Gallup v. Reynolds, 8 Watts 424(1839); Wall's Administrators v. Fife, 37 Pa. 394 (1861). No reference appears in the above quoted arbitration agreement, and therefore, neither

[ 212 Pa. Super. Page 86]

    statute is applicable. In J. A. Robbins Co., Inc. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896(1965), it was held that the parties may provide in their agreement to arbitrate, either that the common law or the Act of 1927 shall apply and "that when the agreement to arbitrate is not by itself determinative of the issue then common law rules regulate the enforcement of the agreement and the award, unless, subsequent to the agreement, the parties, expressly or by implication, further agree that the Act of 1927 shall govern." 418 Pa. at 261, 210 A.2d at 898. Here since the agreement is not determinative and there is no evidence that the parties subsequently agreed to apply the Act of 1927, common law rules control the enforcement of this award.

Appellant argues that the only way a common law arbitration award can be enforced is by an action at law. With this we disagree. Wall's Administrators v. Fife, supra, and Shure v. Goodimate Co., Inc., 302 Pa. 457, 153 A. 757(1931), clearly affirm the principle that the parties may effectively provide, in their agreement to arbitrate, authority for entering judgment on the award. In Wall's Administrators the agreement provided that judgment should be entered on the award "by the prothonotary", and in Shure the agreement contained a warrant of attorney to appear for defendant and confess judgment. Those cases do not control this case because neither a warrant of attorney nor a direction to the ...


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