Appeal from order of Court of Common Pleas of Philadelphia County, Dec. T., 1967, No. 1017, in case of Harleysville Mutual Insurance Company v. Philadelphia Transportation Company et al.
Paul A. Lockrey, with him Joel Paul Fishbein, for appellant.
John P. Mason, with him H. Francis DeLone, for appellee.
Mitchell A. Kramer, with him David C. Harrison, and Kramer and Harrison, for appellee.
Bell, C. J., Jones, Cohen Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice O'Brien join in this opinion.
Plaintiff filed a petition for a declaratory judgment as to whether an insurance policy written by it included protection against uninsured motorists when the insured party was injured while riding in a common carrier, namely, Philadelphia Transportation Company. The driver of the automobile which struck the P.T.C. car did not carry liability insurance. The policy relevantly provided that in case of a disagreement, the matter or matters as to which the parties do not agree shall be settled by arbitration, upon the written demand of either.
The arbitration clause of the policy is so important that we shall quote it in full: "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 Part, then, upon written Page 318} demand of either,*fn* 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 Part."
Prior to the filing by Harleysville of the petition for a declaratory judgment, the injured party, Mrs. Rainer, had already filed a trespass action against P.T.C. which had joined the uninsured driver as an additional defendant, and Mrs. Rainer had also made an uninsured motorist claim against Harleysville and had demanded in writing submission of her claim to an American Arbitration Association arbitrator. Moreover, the arbitrator had been appointed and had fixed a hearing date, although the hearing itself had not begun at the time Harleysville filed its petition for a declaratory judgment.
Harleysville, in its petition for a declaratory judgment, admits that Mrs. Rainer has no claim against it unless and until it is judicially determined that her claim exceeds $10,000. P.T.C. filed an answer which was in the nature of a demurrer, averring, inter alia, that the extent of Harleysville's liability under its own insurance policy was already the subject of a pending arbitration proceeding -- which, we repeat, was in fact the case -- and that the arbitration proceeding was the more appropriate remedy and is the remedy to which plaintiff agreed to bind itself in the policy. P.T.C. further averred that there was no actual controversy in existence between Harleysville and itself, and that there was no legal relationship between the
two, and that there was no imminent and inevitable litigation between Harleysville and P.T.C. which could be avoided by a decree in the present action, and, finally, that the subject matter of this action is within ...