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HOWEY v. COLONIAL PENN INSURANCE COMPANY (04/22/75)

decided: April 22, 1975.

HOWEY
v.
COLONIAL PENN INSURANCE COMPANY, APPELLANT



Appeal from order of Court of Common Pleas of Lackawanna County, Sept. T., 1973, No. 738, in case of Lewis C. Howey v. Colonial Penn Insurance Company.

COUNSEL

John H. Appleton, with him Irwin Schneider, and Nogi, O'Malley & Harris, for appellant.

Roger Mattes, with him Laster, Strohl, Kane & Mattes, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J., in Support of Per Curiam Order To Quash. Price and Spaeth, JJ., join in this opinion. Opinion by Jacobs, J., in Support of Per Curiam Order To Quash. Watkins, P.j., joins in this opinion. Dissenting Opinion by Van der Voort, J. Cercone, J., joins in this dissenting opinion.

Author: Per Curiam

[ 234 Pa. Super. Page 383]

The appeal is quashed.

Disposition

Appeal quashed.

[ 234 Pa. Super. Page 384]

Opinion by Hoffman, J., in Support of Per Curiam Order To Quash:

Appellant's preliminary objections do not question the jurisdiction of the lower court and, therefore, this appeal must be quashed as interlocutory. I reach this conclusion reluctantly because it may result in an unnecessary trial. As pointed out by Judge Van der Voort, the lower court should hold its proceedings in abeyance until the matter is disposed of in the forum freely chosen by the litigants. This is true despite the fact that an arbitration clause does not affect the jurisdiction of the court of common pleas. If the lower court does not adopt this approach and proceeds to trial, on appeal by the insurance company we would have to reverse and remand for arbitration proceedings.

Opinion by Jacobs, J., in Support of Per Curiam Order To Quash:

I would quash the present appeal. Appellant's claim in his preliminary objections that a provision in the insurance policy required the submission of the case to arbitration does not raise a jurisdictional issue so as to permit an interlocutory appeal from the order overruling the preliminary objections. Capezio & Things, Inc. v. The Wynnewood Meredith Corp., 455 Pa. 84, 314 ...


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