Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1969, No. 4173, in the matter of arbitration of Richard A. Sudders et al. v. United National Insurance Company.
Joseph Lurie, with him Galfand, Berger, Senesky and Lurie, for appellant.
Julius E. Fiorvanti, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.
[ 217 Pa. Super. Page 197]
This is an appeal from the order of the lower court confirming an arbitration award arising under the uninsured motorist provision of an automobile liability policy.
On November 16, 1966, the plaintiffs herein were involved in an automobile accident with one John Madden,
[ 217 Pa. Super. Page 198]
who, at the time of the accident, was operating his own motor vehicle. As a result of a prior suspension, however, Madden had been granted only a restricted license, after Guardian Mutual Insurance Company [Guardian] had issued to Madden a limited operator's liability policy in accordance with the Motor Vehicle Safety Responsibility Provisions of The Vehicle Code, Act of April 29, 1959, P. L. 58, § 1401 et seq., 75 P.S. § 1401 et seq. That policy had provided that Madden would be covered only while driving an automobile not owned by him.
Shortly after the accident, plaintiff communicated with the Hayes Adjustment Bureau to ascertain whether Guardian insured Madden for the damages resulting from the accident. On July 5, 1967, plaintiff received a letter from Guardian disclaiming coverage. On July 28, 1967, plaintiff received a letter from the Insurance Department of the Commonwealth of Pennsylvania confirming that Madden had not been insured for the above accident.
On December 13, 1967, plaintiff filed a formal demand for arbitration under plaintiff Sudders' uninsured motorist policy, issued by United National Insurance Company [United]. In January, 1968, plaintiff Sudders was referred by United to Guardian's counsel, who stated in a letter to plaintiff that "Guardian does insure Madden." [Emphasis added.]
United then filed a complaint in equity, seeking to enjoin plaintiff from proceeding in arbitration under the uninsured motorist policy against United since the issue of Madden's insurance was a sham, which should not be submitted to arbitration. Plaintiff objected preliminarily to this complaint. The complaint was dismissed by the lower court which stated: "We believe that the ...