Appeal from order of Court of Common Pleas of Fayette County, Sept. T., 1972, No. 268, in case of The Hartford Insurance Group v. Barbara Kassler.
R. Conway, with him John E. Kunz, and Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.
Bernard S. Shire, with him Shire, Bergstein & Bialon, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J.
[ 227 Pa. Super. Page 48]
This is an appeal from the order of the Common Pleas Court of Fayette County sustaining the appellee's preliminary objections to the appellant's petition for a declaratory judgment.
The appellee, Barbara Kassler, was injured in June of 1969 when her automobile collided with an automobile owned by William Binns but operated by Edward Radel. Radel claimed that Binns gave him permission to operate the automobile. Binns denied this.
Appellee instituted trespass actions against Radel and Binns. Radel did not have automobile liability coverage, and Binns' insurance carrier claimed that there was no coverage under its policy with Binns as Radel's use was non-permissive. Before proceeding with this action, appellee made a claim against appellant, Hartford Insurance Group, under the uninsured motorist provisions of her policy. After settlement with Binns, appellee instituted arbitration proceedings against appellant for recovery under the policy.
An arbitration hearing was scheduled and continued at appellant's request. Appellant then filed a petition for a declaratory judgment seeking a ruling that it was not obligated to make any payment to the appellee under the policy. Appellee filed preliminary objections to the petition contending that the court could not entertain a declaratory judgment action because the dispute was subject to arbitration.*fn1 The court below sustained the preliminary objections and this appeal followed.
[ 227 Pa. Super. Page 49]
Appellant contends that the availability of arbitration does not preclude resort to declaratory judgment for the resolution of the dispute. Appellant relies upon Friestad v. Travelers Indemnity Company, 452 Pa. 417, 306 A.2d 295 (1973) which holds that a declaratory judgment is an alternative remedy, not an extraordinary one, and that the availability of another remedy at law could not alone prevent a party from obtaining a declaratory judgment in any case where the other essentials for such relief are present.
We do not believe that a court must entertain a declaratory judgment action when the parties to a contract have agreed upon a forum to resolve disputes, and one of the parties insists that forum be employed.*fn2 In Friestad, the lower court had erroneously precluded declaratory judgment because of the availability of other appropriate court action. Friestad is distinguishable on its facts,*fn3 because the case involved an option which was available to the parties, not one contracted to by the parties.
There are, moreover, substantial policy reasons for sustaining the lower court's action. The inclusion of an arbitration agreement in a contract for the resolution of ...