No. 213 March Term, 1977, Appeal from Order of the Superior Court affirming Order of April 20, 1976, of the Court of Common Pleas, Civil Division, of Allegheny County, at No. GD 76-03255. Appeal was granted to the Supreme Court August 24, 1977 at Allocatur Docket No. 1264.
John C. Carlin, Jr., Mercer, Mercer, Carlin & Scully, Pittsburgh, for appellant.
Harry W. Miller, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
This appeal is before the court on a petition for allowance of appeal from an order of the Superior Court which affirmed an order of the Court of Common Pleas of Allegheny County. The order of the Court of Common Pleas confirmed an arbitration award in favor of State Farm Mutual Automobile Insurance Company (State Farm), appellee. The award denied uninsured motorist insurance coverage to appellant, Alfred Williams.
The facts in this case are undisputed and are as follows. On February 11, 1975, appellant, Alfred Williams, was driving his wife's 1970 Plymouth automobile when he was involved in an accident with a vehicle driven by an uninsured motorist. As a result of that accident appellant suffered unspecified physical injuries and damages. There is no dispute that the owner-operator of the uninsured vehicle was at fault. At the time of the accident appellant's wife, Patricia Williams, was insured by State Farm with the mandated uninsured motor vehicle coverage provisions. Also at that time, appellant was the titled owner of a 1973 Chevrolet truck, which was also insured by State Farm and the policy contained similar uninsured motorist provisions.
Appellant filed a claim against State Farm under both his and his wife's uninsured motorist coverage. State Farm paid appellant the $10,000 limit under his wife's policy, but refused payment under his policy. Appellant requested arbitration to determine if he was entitled to any uninsured motorist coverage pursuant to his contract of insurance. The request for arbitration was granted and an arbitration hearing was held pursuant to conditions and requirements of the Act of April 25, 1927, P.L. 381, No. 248, § 1, 5 P.S. § 161-181 (hereinafter "the act of 1927").
The arbitrator denied coverage for appellant. The basis of the denial of coverage was an exclusionary provision which stated in pertinent part:
"This insurance does not apply . . . (b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, such vehicle is not an owned motor vehicle. . . ."
The arbitrator based his determination upon the Superior Court case of Nationwide Mut. Ins. Co. v. Ealy, 221 Pa. Super. 138, 289 A.2d 113 (1972) (allocatur denied).
Appellant filed an exception to the arbitrator's award and the Court of Common Pleas of Allegheny County, pursuant to State Farm's motion, confirmed the arbitration award. Appellant appealed to Superior Court, which affirmed per curiam. He then petitioned this court for allowance of appeal, which was granted. The basis of this appeal is the contention that the Superior Court case of Ealy, supra, relied upon by the arbitrator, as well as by the Court of Common Pleas in confirming the award, is at variance with this court's decision in Harleysville M. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968).
The instant case arose from an arbitration award pursuant to the act of 1927, which contains two provisions affecting the scope of review that a court must use in determining appeals from arbitration awards. Section 10 of the act of 1927, 5 P.S. § 170 provides:
"In either of the following cases the court shall make an order vacating the award upon the application of any party to the arbitration:
"(a) Where the award was procured by corruption, fraud, or undue means.
"(b) Where there was evident partiality or corruption on the part of the arbitrators, or any of them.
"(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause
shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misbehavior by which the rights of any party have been prejudiced.
"(d) Where the arbitrators exceeded their powers or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made.
"Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators."
Section 11 of the act of 1927, 5 P.S. § 171, provides:
"In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
"(a) Where there was an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing, ...