Appeal from decree of Court of Common Pleas of Philadelphia County, Oct. T., 1968, No. 2267, in case of Pennsylvania General Insurance Company v. Emma S. Barr, executrix of estate of Norman Barr, deceased, et al.
E. Paul Maschmeyer, with him Marshall, Dennehey & Warner, for appellant.
Alexander A. DiSanti, with him Richard, Brian & DiSanti, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
This appeal by the Pennsylvania General Insurance Company (General) is from a decree of the lower court dismissing appellant's complaint in equity and sustaining appellee Emma S. Barr's preliminary objection thereto. At issue is the availability of arbitration to resolve a dispute between the parties as to the amount of uninsured motorist coverage provided by certain policies issued by General to Norman Barr, deceased husband of appellee.
On November 10, 1967, Norman Barr, while on duty as a police officer of Haverford Township, was struck and killed by an automobile driven by one James Gallagher. At the time of his accident, Barr was insured under two separate contracts issued by General. Each contract provided coverage for damages for bodily injury caused by uninsured automobiles, but neither policy specified the limits of appellant's liability under this provision. The uninsured motorist clause of each policy contained an arbitration provision which in pertinent part reads as follows: "ARBITRATION: If any person making claim hereunder and the Company . . . do not agree as to the amount of payment which
may be owing under this Part, 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." Decedent was also covered under a contract issued to his employer, the Township, by the Insurance Company of North America (I.N.A.).
After the death of her husband, Emma S. Barr, as executrix of his estate, filed a demand upon General and I.N.A. for arbitration under the uninsured motorist provision of each of the General policies. The amount claimed was initially $25,000 under each policy, but this was later amended in writing to "unlimited".
Appellant thereafter filed a complaint in equity praying for a preliminary injunction to restrain appellee from proceeding to arbitration until the nature and extent of the coverage provided by the uninsured motorist provisions had been judicially determined. The two insurance companies, the executrix, Emma S. Barr, and the American Arbitration Association were the named defendants. A preliminary injunction was entered on the basis of an injunction affidavit. The executrix, appellee Barr, filed preliminary objections contending that venue was improper and that appellant had a complete non-statutory remedy at law available by way of arbitration. After argument, the lower court dismissed appellee's objection as to venue but sustained the objection that arbitration, not judicial proceedings, was the sole forum for resolution of the issues raised. It accordingly dismissed appellant's complaint. This appeal followed.
It is appellant's contention that the dispute in the present case should not be submitted to arbitration without prior ...