Appeal from Order of the Court of Common Pleas of Philadelphia County at No. 520 December Term, 1974; Trial Div., Law. NO. 1830 OCTOBER TERM, 1975.
Duane, Morris & Heckscher, Carl N. Martin, II, Philadelphia, for appellant.
Albert Schlessinger, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 241 Pa. Super. Page 284]
Appeal is taken to our Court from the July 9, 1975, Order of Judge DiBona, which is as follows:
1. the award of the arbitrator is against the law, and is such that had it been a verdict of the jury the court
[ 241 Pa. Super. Page 285]
would have entered different or other judgment notwithstanding the verdict;
2. the award of the arbitrator is set aside and the matter remanded to him to make an award in favor of the plaintiffs and to fix the amount of damages.
The arbitrator in this case had been appointed pursuant to a contract of insurance between plaintiffs-insureds and defendant-insurer. The insureds had invoked the uninsured motorist claim section of the policy, claiming personal injuries sustained in an auto accident with an uninsured motorist. While the insurance contract is not a part of the record before us, neither party disputes that invocation of arbitration is, in this case, pursuant to the "Uniform Arbitration Act", Act of 1927, April 25, P.L. 381, No. 248, 5 P.S. § 161 et seq.
Following hearing which was not transcribed, the arbitrator made findings of fact upon which he concluded, as to law, that the "proximate cause of the accident was the negligence of claimant, Harry Pein, and not the negligence of the uninsured motorist" and that claimants (appellees herein) had not offered credible testimony. By his letter of October 10, 1974, the arbitrator confirmed certain additional findings of fact suggested by appellees and wrote the following:
My reason for finding in favor of the insurance carrier was that even though the plaintiffs' testimony was uncontradicted, a tryer of fact, such as the undersigned, has the right to believe all of their testimony, believe some of their testimony or believe none of their testimony, The fact that the claimants spent a week in Florida following the accident was conclusive in my determination that plaintiffs' credibility, as to the happening of the accident and to the ...