Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1970, No. 5097, in case of Joseph J. Coleman v. Southeastern Pennsylvania Transportation Authority.
Lewis H. Van Dusen, Jr., and Robert J. Spiegel, with them Drinker, Biddle & Reath, for appellant.
Herbert Braker, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Spaeth, J. Jacobs and Hoffman, JJ., join in this opinion.
[ 233 Pa. Super. Page 442]
This appeal primarily raises the question of the scope of review of an arbitration award made pursuant to a stipulation entered into between the parties. The lower court held that under the stipulation the parties have waived their rights to file exceptions to the award. We agree and will affirm on that ground. Therefore, there
[ 233 Pa. Super. Page 443]
is no need to set forth the factual background of the accident giving rise to this trespass action.
The entire stipulation follows: "Submission to Arbitration" "AND NOW, this 24th day of September, 1973, JOSEPH J. COLEMAN by his attorney, Herbert Braker, Esquire, and SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, by its attorney, Robert J. Spiegel, Esquire, hereby submit the dispute as set forth in the pleadings in the above matter to arbitration by the Honorable Stanley M. Greenberg, who shall be the final judge of law and fact. It is agreed that this is a voluntary submission under the Act of June 16, 1836, P.L. 715, 5 Purdon's Statutes § 1 through § 8. /s/ Joseph J. Coleman Plaintiff /s/ Herbert Braker, Attorney for Plaintiff; SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY By: /s/ Emil F. Toften, Deputy /s/ Robert J. Spiegel, Attorney for Defendant. Dated: September 24, 1973" [R7a]
Appellant seeks review of the award under Section 4 of the Act of 1836, alleging only that the arbitrator made plain mistakes of fact or law. Specifically, appellant alleges that the award was excessive, that the medical evidence was insufficient to support the award, that the plaintiff was contributorily negligent, and that the collateral source rule should not be applied in this case.
Appellee, however, contests appellant's ability to appeal and asserts that appellant has waived its right to appeal the award of the judge, sitting as arbitrator. Appellee's contention is based on the language of the stipulation that the arbitrator "shall be the final judge of law and fact." The lower court agreed wth appellee that the only reasonable interpretation of the stipulation was to "take away the respective rights of the parties as established by the Act to appeal from alleged mistakes of law or fact," and thus to withdraw "from the Court the power to rectify a mistake of fact or law, if one was made." [R 337a]
[ 233 Pa. Super. Page 444]
The lower court's interpretation follows the reasoning of Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 77, 213 A.2d 275, 276-77 (1965): "In order to determine whether an arbitration is one at common law or under the Arbitration Act, we examine the language in the contract and the procedure followed during the arbitration. The language of paragraph 20 of the contract calls for arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The contract does not call for arbitration under the Pennsylvania Arbitration Act. However, the contract does provide that awards shall be binding. The provision making the award final is, of course, inconsistent with the Pennsylvania Arbitration Act, which permits broad, judicial review of the arbitration award, while common law arbitration is reviewable only for fraud, misconduct, or some other irregularity which caused the arbitrators to issue an unjust, ...