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EDWARD HARRY BOLE v. NATIONWIDE INSURANCE COMPANY (12/01/77)

decided: December 1, 1977.

EDWARD HARRY BOLE
v.
NATIONWIDE INSURANCE COMPANY, APPELLANT



COUNSEL

Charles J. Duffy, Jr., Lancaster, Mentzer, Coyne & Duffy, Pittsburgh, for appellant.

Louis Kwall, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., files a Dissenting Opinion in which Nix, J., joins.

Author: O'brien

[ 475 Pa. Page 188]

OPINION OF THE COURT

On July 1, 1970, appellee, Edward Harry Bole, was a passenger in an automobile owned and operated by George Kocsis. Appellee was seriously injured when the Kocsis auto struck two parked cars. Another passenger was killed in the accident.

At the time of the accident, Kocsis carried a $25,000 single limit liability policy with Liberty Mutual Insurance Company. By way of settlement, appellee recovered $11,876 from

[ 475 Pa. Page 189]

Kocsis' liability carrier.*fn1 Appellee then submitted a claim to his insurance company, appellant, Nationwide Insurance Company, pursuant to a $10,000 uninsured motorist provision contained in the policy.

Nationwide refused payment. In June of 1972, appellee requested that the claim be submitted to arbitration. The insurance policy provided for common law arbitration, with each party choosing a " competent and disinterested arbitrator." These two arbitrators would then select a third arbitrator.

Both Nationwide and Bole selected an arbitrator. Bole objected to Nationwide's choice, Karl Brueck, Jr., Esquire, because Mr. Brueck had provided legal representation for Nationwide in the past. Mr. Brueck, however, refused to disqualify himself. The third arbitrator was agreed upon. At the hearing, Bole again objected to Mr. Brueck, who again refused to disqualify himself. Following the hearing, an award was given against Bole in favor of Nationwide. The arbitrator chosen by Bole dissented from the award.

Appellee filed a petition and rule to vacate the award of arbitrators in the Court of Common Pleas of Allegheny County, again claiming, inter alia, that Mr. Brueck should have disqualified himself. The court, however, denied appellee's petition and confirmed the arbitrators' award.

An appeal was taken to the Superior Court, which decided the case in December of 1975. Bole v. Nationwide Insurance, 238 Pa. Super. 138, 352 A.2d 472 (1975). A majority of that court ordered a remand, but the court was divided on the scope of the remand. Judge Spaeth, in an opinion joined by Judges Hoffman and Cercone, expressed a belief that the matter should be remanded for an evidentiary hearing to determine if Mr. Brueck's past representation of Nationwide evidenced an actual bias. Judge Van der Voort, in an

[ 475 Pa. Page 190]

    opinion joined by President Judge Watkins, indicated the award should be vacated and the case remanded for appointment of new arbitrators, because they felt prior representation of a party by an arbitrator should require disqualification of that arbitrator upon objection by the opposing party, with no showing of actual bias required. Judge Price filed a dissenting opinion, joined by Judge Jacobs, in which he expressed the view that partisan appointments were ...


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