Appeal from Memorandum and Order of the Court of Common Pleas of Philadelphia County, at No. 1568, October Term, 1975. Trial Div., Law No. 1182 October Term, 1976.
Jerome Poltenstein, Philadelphia, for appellant.
C. Penners, Philadelphia, with him Joseph Lurie, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., did not participate in the consideration or decision of this case. Spaeth, J., files a concurring opinion.
[ 245 Pa. Super. Page 538]
Appellant contends that appellee's petition to compel arbitration should have been dismissed because it was not served in compliance with the Rules of Civil Procedure.
On October 15, 1975, appellee filed a petition to compel the appointment of an arbitrator pursuant to the Uniform
[ 245 Pa. Super. Page 539]
Arbitration Act.*fn1 The petition alleged the existence of three separate construction contracts, dated respectively December 31, 1968, June 13, 1968, and January 29, 1971. All three contained paragraphs which required arbitration of all disputes between the parties subject to the provisions of the Uniform Arbitration Act. Appellee's petition alleged that it had notified counsel for appellant of its appointment of an arbitrator, but that appellant had refused to fulfill its contractual obligation to name one. Appellee asked the court below to name an arbitrator so that the case could proceed.*fn2 Appellee mailed a copy of the petition to compel arbitration to an attorney for the appellant, but did not attempt service as required by the Rules of Civil Procedure.*fn3 Appellant filed objections to appellee's petition alleging that service was improper. The court below denied appellant's objection to the petition, and this appeal followed.
This case presents a question of first impression: whether a petition to appoint an arbitrator must be served in conformity with the Rules of Civil Procedure. Appellee contends that the petition to appoint an arbitrator is authorized by § 4 of the Uniform Arbitration Act and does not require any special form of service: "If in the agreement provision be made for a method of naming or appointing arbitrators or an umpire, such method shall be followed, but . . . if a method be provided and any party thereto shall fail to avail himself of such method, . . . the court shall designate and appoint arbitrators, or an umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named
[ 245 Pa. Super. Page 540]
therein, . . . ." No mention is made of the procedure which a party seeking to secure the appointment of an arbitrator must follow.
The appellant, on the other hand, argues that the petition to name an arbitrator is governed by § 3 of the Act: "The party aggrieved by the alleged failure, neglect, or refusal of another to perform under a written agreement for arbitration, may petition the court of common pleas of the county having jurisdiction for an order to show cause why such arbitration should not proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by law for the service of a summons. The court shall hear and determine the matter upon the petition and answer and depositions, or after hearing of the parties in open court, as the court may determine; and the court upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not at issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement, or the failure, neglect, or refusal to perform the same, be at issue, the court shall proceed to the trial thereof. . . ." (Emphasis supplied).
In effect, appellee's argument is that because § 4 of the Act makes no provision for service of the petition to compel arbitration, it was free to adopt any method of service. This argument is wrong. Section 4 is remedial, not procedural. The effect of a party's refusal to proceed with arbitration at one time depended upon the stage of the proceedings when the refusal occurred. If the dispute had been submitted to arbitration but no arbitrators chosen, there was, until the adoption of the ...