Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1973, No. 1153, in case of Carlos Whiting v. Nationwide Mutual Insurance Company and American Arbitration Association.
Bernard M. Gross, with him Gross & Sklar, for appellant.
Randall E. Dyen, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 229 Pa. Super. Page 164]
This is an appeal from the order of the lower court refusing to set aside an arbitration award. Appellant contends that he was denied a fair hearing and received an inequitable award because: (1) the arbitrators and the American Arbitration Association were guilty of fraud and misconduct by failing to disclose that a certain arbitrator represented as "neutral" was in fact "defense" oriented; and (2) without authority the arbitrators reduced the award by the amount of the medical payments coverage. We find these claims to be without merit and affirm.
On November 13, 1970, appellant, Carlos Whiting, was injured in a motor vehicle collision with an uninsured motorist. Appellant's insurance policy with appellee, Nationwide Mutual Insurance Company [hereinafter referred to as "Nationwide"], included uninsured motorist and medical payments coverage. When no settlement was forthcoming, appellant filed a demand for arbitration with the American Arbitration Association [hereinafter referred to as "AAA"] as provided for in the policy. Since the provision in the policy
[ 229 Pa. Super. Page 165]
did not specify statutory arbitration,*fn1 and there was no agreement between the parties to adopt it, the rules of common law arbitration became applicable. Smith v. Safeguard Mut. Ins. Co., 212 Pa. Superior Ct. 83, 239 A.2d 824 (1968).
In accordance with its procedure at that time, the AAA submitted to both appellant and Nationwide a list of arbitrators which included one neutral, three plaintiff's attorneys, and three defendant's attorneys.*fn2 Each party was given the opportunity to strike two names from the list. Soon thereafter the parties were notified of the selection of the following arbitration panel: Ralph L. Hose (neutral), Joseph F. Ricchiuti (defendant's attorney), and A. Martin Herring (plaintiff's attorney). The panel held its first hearing on October 23, 1972. After its second and final hearing on December 8, 1972, the panel unanimously issued the following award: "Nationwide Insurance Company shall pay to Carlos Whiting the sum of Two Thousand Two Hundred Sixty Dollars ($2,260.00), which is inclusive of medical payments." On the same day, Ralph L. Hose, the "neutral" arbitrator informed Jeff Coble, the Tribunal Administrator for the AAA, that out of his practice in negligence, 10% was plaintiff work while 90% was defense work. This new information reflected a change in the makeup of Hose's negligence practice which in 1967 was evenly divided between plaintiff and
[ 229 Pa. Super. Page 166]
defense work. The AAA now lists Hose as a defendant's attorney.
On an appeal from a common law arbitration award, "appellant, to succeed, must show by clear, precise and indubitable evidence that he was denied a hearing, or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator[s] which caused [them] to render an unjust, inequitable or unconscionable award, the arbitrator[s] being the final judge of both law and fact, [their] award not being subject to disturbance for a mistake of either." Allstate Ins. Co. v. ...