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SMITH v. EMPLOYERS' LIABILITY ASSURANCE CORPORATION (06/12/70)

decided: June 12, 1970.

SMITH
v.
EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., APPELLANT



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1968, No. 3537, in case of Catherine Smith et vir v. Employers' Liability Assurance Corporation, Ltd. et al.

COUNSEL

Kenneth S. Robb, with him Donald W. Bebenek, and Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.

Mark B. Aronson, with him Kenneth W. Behrend, and Behrend & Aronson, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 217 Pa. Super. Page 32]

This is an appeal from an order of the Court of Common Pleas of Allegheny County setting aside an arbitration award arising out of the uninsured motorist provisions of an automobile liability policy.

Appellees, Catherine and William Smith, were involved in an automobile accident. At the time of this accident appellees had an automobile insurance policy with appellant, Employers' Liability Assurance Corporation, Ltd., which contained the standard uninsured motorist clause.

Subsequently, appellees filed a request for arbitration of their claim with the American Arbitration Association, in accordance with the provisions of the policy. The basis for their request was that the driver of the other vehicle involved in the accident was a "hit and run" motorist. A "hit and run automobile" is defined, in pertinent part as one involved in an accident where "there cannot be ascertained the identity of either the operator or owner of such hit-and-run automobile."

[ 217 Pa. Super. Page 33]

At the arbitration hearing, Catherine Smith testified that the vehicle involved in the collision with the car in which she and her husband were riding was a truck which bore the name "Mushroom Transportation Company of Philadelphia." Based on this testimony, the arbitrator concluded that it was sufficiently established that the truck involved was actually owned and/or operated by Mushroom Transportation Co., Inc. a corporation based in the City of Philadelphia.

An appeal was taken to the lower court alleging that an arbitrator's finding that the identity of the "hit-and-run" vehicle was ascertained was "unjust, inequitable and unconscionable" and constituted "the denial of a hearing." The lower court agreed with this contention, set aside the order of the arbitrator and remanded the case to arbitration.

We believe that the court's action in this regard was in error and should be reversed.

Both our court and the Supreme Court have, on numerous occasions, stated that all disputes as to coverage under the uninsured motorist provisions of a policy must be settled by the arbitrator. Great American Insurance Co. v. American Arbitration Association, 436 Pa. 370, 260 A.2d 769 (1970); Pennsylvania General Insurance Co. v. Barr, 435 Pa. 456, 257 A.2d 550 (1969); Allstate Insurance Company v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969); Merchants Mutual Insurance Company v. American Arbitration Association, 433 Pa. 250, 248 A.2d 842 (1969); Harleysville Mutual Insurance Company v. Medycki, 431 Pa. 67, 244 A.2d 655 (1968); National Grange Mutual Insurance Company v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968). Our appellate court has consistently held that issues of fact and law are not ...


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