No. 2001 October Term, 1977, Appeal from Order of the Court of Common Pleas of Philadelphia County, February Term, 1973, No. 1484, Trial Division, Law.
Gordon Gelfond, Philadelphia, submitted a brief on behalf of appellants.
Francis E. Marshall, Philadelphia, for appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ. Cercone, President Judge, concurs in the result.
[ 276 Pa. Super. Page 190]
This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Civil Division, by the plaintiff-appellants, Ronald Amaradio and Joanne Amaradio, et al., which granted the appellee-defendant's, Traveler's Insurance Company's, motion for judgment on the pleadings.
Plaintiffs-appellants brought a class action against their insurance carrier charging it with refusing to reimburse them for medical expenses under the medical payments section of their automobile insurance policy contrary to the mandates of Johnson v. Nationwide Insurance Company, 220 Pa. Super. 793, 286 A.2d 448 (1971).
On October 10, 1968, the plaintiffs, husband and wife, were insured by a policy of automobile liability insurance issued by the defendant. The insurance policy insured plaintiffs for medical payments coverage and for uninsured motorist protection. On the above date, while so insured, both plaintiffs were injured in an automobile accident with an uninsured motorist. The plaintiffs then demanded an arbitration hearing with regard to their uninsured motorist coverage as provided by the insurance policy. The arbitration hearing was held and on July 8, 1969, the arbitrator awarded wife-plaintiff the sum of $2500.00 and husband-plaintiff
[ 276 Pa. Super. Page 191]
the sum of $7500.00 for the injuries suffered during the accident. These awards were paid by the defendant to the plaintiffs.
On February 13, 1973, the plaintiffs commenced an action in assumpsit against the defendant alleging that they were entitled to recover for their injuries under the medical payments section of the insurance policy, as well as, the uninsured motorist section. The action was maintained as a class action. The defendant answered the complaint of the plaintiffs and in new matter alleged that the plaintiffs had recovered all that they were entitled to recover under the insurance policy. Subsequently, the court below granted defendant's Motion for Judgment on the Pleadings and dismissed the plaintiffs' complaint citing the case of Goldberg v. Transamerica Ins. Co., a case raising the identical question raised herein. In Goldberg, supra, the trial court dismissed plaintiffs' complaint reasoning that the insurance policy provided that "the matter or matters upon which such person [the insured] and the company [insurance carrier] do not agree shall be settled by arbitration." Goldberg, was affirmed, per curiam, by this Court, 245 Pa. Super. 627, 372 A.2d 437 (1977), and allocatur was denied by the Supreme Court. After the court below granted the defendant's Motion for Judgment on the Pleadings, the plaintiffs took this appeal.
Plaintiffs' position is that the mandatory arbitration provision of the insurance policy contract applies only to the uninsured motorist provision of the policy and not to the medical payments provision of the contract and that therefore the court below should not have granted the defendant's Motion for Judgment of the Pleadings.
The insurance policy attached to and made a part of the plaintiffs' Complaint in Assumpsit ...