Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1973, No. 1648, in case of Betty Hain v. Keystone Insurance Company.
Wendell H. Livingston, for appellant.
Jerold Allen, with him Benjamin Kuby, and Klovsky, Kuby and Harris, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., and Van der Voort, J., dissent.
[ 230 Pa. Super. Page 457]
The issue presented on appeal is whether the court below erred in entering an order pursuant to an award of arbitrators in a case involving uninsured motorist coverage.
Appellee, Betty Hain, was insured under an automobile insurance policy issued by appellant, Keystone Insurance
[ 230 Pa. Super. Page 458]
Company, which provided, inter alia, $10,000 of uninsured motorist coverage. On September 27, 1970, appellee was involved in an accident with an uninsured motorist while a passenger in her own automobile. As a result of this accident, appellee sustained serious personal injuries. On the date of the accident, appellee lived with her daughter and her son-in-law, Hugh Brown. Appellant had issued a separate automobile insurance policy to Brown covering two automobiles and providing for $10,000 of uninsured motorist coverage for each automobile.
As a result of the injuries she sustained in the accident of September 27, appellee filed claims against appellant under the uninsured motorist provisions of both her own policy and Brown's policy. On July 31, 1973, the parties orally submitted the dispute to common law arbitration. On August 30, 1973, the arbitrators announced an award of $25,000 in favor of appellee. The arbitrators did not submit an opinion or explanation of the award. Appellant paid appellee the $10,000 which it conceded that it owed her under the terms of her own policy, but denied any liability to the appellee under the terms of her son-in-law's policy. On September 24, 1973, appellee filed a petition to confirm the award of the arbitrators. Appellant filed a petition to vacate or modify the arbitrators' award. On January 4, 1974, the Honorable Ned L. Hirsh of the Court of Common Pleas of Philadelphia County entered an order granting appellee's petition to confirm and denying appellant's petition to vacate or modify the award. This appeal followed.*fn1
[ 230 Pa. Super. Page 459]
At common law, the arbitrator is "the final judge of both law and fact, his award not being subject to disturbance for a mistake of either." Harwitz v. Selas Corp. of America, 406 Pa. 539, 542, 178 A.2d 617 (1962). Nevertheless, a party may have an arbitration award vacated by showing 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 which caused him to render an unjust, inequitable or unconscionable award, . . . ." Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 114, 299 A.2d 585 (1973) (emphasis supplied). Our Supreme Court has recently given content to the term "other irregularity" by stating that an arbitration award may evidence "such bad faith, ignorance of the law and indifference to the justice of the result" as to require a court to vacate the award. Allstate Ins. Co. v. Fioravanti, 451 Pa. at 116, 299 A.2d at 589.
Appellant alleges neither fraud, misconduct, corruption, nor denial of a hearing. Instead, appellant contends that the mere fact that the arbitrators allowed appellee to recover under Brown's policy, contrary to an allegedly lawful and explicit exclusion in that policy,*fn2 ...