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ALLSTATE INSURANCE COMPANY v. FIORAVANTI (01/19/73)

decided: January 19, 1973.

ALLSTATE INSURANCE COMPANY, APPELLANT
v.
FIORAVANTI



Appeal from order of Superior Court, Oct. T., 1972, No. 221, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, No. 1879, in case of Allstate Insurance Company v. Anthony Fioravanti.

COUNSEL

Joseph G. Manta, with him James M. Marsh and LaBrum and Doak, for appellant.

Stanton Dubin, with him Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones, Mr. Justice Nix and Mr. Justice Manderino concur in the result.

Author: Eagen

[ 451 Pa. Page 110]

This appeal necessitates once again our consideration of the finality which is accorded awards made by an arbitration panel.

Appellant, Allstate Insurance Company, filed a petition in the Court of Common Pleas of Philadelphia to set aside an arbitration award made in favor of appellee, Anthony Fioravanti. Appellee filed preliminary objections in the nature of a demurrer and to strike Allstate's petition. The trial judge sustained these objections, dismissed the petition and entered judgment on the award of the arbitrators. The Superior Court affirmed in a per curiam opinion and allocatur was granted to this Court.

The roots of the dispute lie in the following facts. On September 11, 1970, a three-year-old girl, daughter of Louis Fioravanti, was struck and injured by an uninsured motorist. A claim was submitted under the uninsured motorists clause of a policy issued to Anthony Fioravanti, the grandfather of the child and the father of Louis, which Allstate refused to pay. The policy provision calling for arbitration of such claims under rules of the American Arbitration Association was then invoked by appellee. A three-lawyer panel was selected, facts were stipulated -- the lack of insurance

[ 451 Pa. Page 111]

    covering the tortfeasor, and the freedom from contributory negligence of the young girl -- and, after a hearing, an award was announced in favor of the claimant for $3500. The sole question argued to and passed on by the arbitrators was a question of estoppel.*fn1

The gravamen of Allstate's complaint is that it was denied a full and fair hearing and thus, due process of law, when the arbitrators refused its counsel's request to submit a memorandum of law on the controlling legal issue of the case.

Since this appeal is from the sustaining of preliminary objections in the nature of a demurrer, the facts before us are confined to appellant's complaint since the demurrer admits for present purposes every well pleaded material fact set forth in the complaint as well as the inferences reasonably deducible therefrom. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964). In reviewing this complaint, we are mindful of the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968). By this we mean it must appear with certainty that, upon the facts averred, the law ...


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