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FLOYD C. LEWIS v. ERIE INSURANCE EXCHANGE (09/19/80)

filed: September 19, 1980.

FLOYD C. LEWIS, JR., APPELLANT,
v.
ERIE INSURANCE EXCHANGE



No. 390 April Term, 1979, Appeal form the Order of the Court of Common Pleas of Lawrence County, Civil Division, No. 908 of 1978.

COUNSEL

Harry O. Falls, New Castle, for appellant.

Charles W. Garbett, Ellwood City, for appellee.

Price, Hester and Cavanaugh, JJ.

Author: Price

[ 281 Pa. Super. Page 196]

This appeal challenges the order of the trial court dismissing appellant's petition to vacate an arbitration award and dismiss the board of arbitrators, which was entered on the ground that the verification of the petition was not in conformity with Pa.R.C.P. No. 1024. While we agree that the verification was deficient, we find that dismissal of the petition was improper, and we reverse the order of the trial court.

A brief review of the facts giving rise to this appeal follows. Appellant was involved in an automobile accident on November 16, 1976, and sought arbitration pursuant to the uninsured motorist provision of his insurance agreement with Erie Insurance Exchange (Erie). A board of arbitrators was selected pursuant to the Uniform Arbitration Act

[ 281 Pa. Super. Page 197]

    of April 25, 1927, P.L. 381, 5 P.S. ยง 161 et seq., and the hearings were scheduled on August 23 and October 18, 1978. The October 18 hearing was scheduled to receive the testimony of appellant and his witnesses, but they did not appear, nor did appellant's counsel. On October 27, 1978, counsel received the board's decision denying appellant's claim.

Thirty-one days later, on November 28, 1978, appellant filed a petition pursuant to the Uniform Arbitration Act requesting that the award be vacated*fn1 because he had been denied an opportunity to be heard. The petition alleged that appellant, his counsel, and his witnesses had failed to appear at the hearing because appellant's counsel was ill and, after requesting a continuance at 9:00 a. m. on the morning of the hearing, had understood that the hearing would be rescheduled. Erie objected to the petition on the grounds that it was improperly verified and that it was not timely filed. President Judge John F. Henderson of the Court of Common Pleas of Lawrence County found that the latter objection lacked merit but that the former compelled dismissal.

The affidavit attached to the instant petition was signed by appellant's attorney and stated that "the facts contained in the foregoing Petition are true and correct to the best of his information, knowledge, belief, and the reason Gordon C. Post, Jr., is signing for Floyd Lewis, Jr. is that Floyd Lewis Jr. is unavailable at this time." Although Pa.R.C.P. No. 1024 is not directly applicable to petitions, we have determined that the form of affidavits to petitions should be governed with reference to that rule, which states in pertinent part:

"(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time ...


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