No. 575 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 3959 August Term, 1978.
Marshall E. Kresman, Philadelphia, for appellant.
Joel Paul Fishbein, Philadelphia, for appellee.
Price, Watkins and Hoffman, JJ. Hoffman, J., concurs in the result.
[ 288 Pa. Super. Page 55]
This appeal arises from the order of the Court of Common Pleas of Philadelphia County denying a petition to compel arbitration under an uninsured motorist provision of an automobile insurance policy. The narrow issue for our consideration is in what forum the question of uninsured motorist coverage should be determined -- whether before an arbitrator or in the Court of Common Pleas.
The pertinent facts are as follows. On January 11, 1975, Hugh Hart, Jr., sustained fatal injuries while a passenger in an automobile that was involved in an accident. Five other individuals were also killed and another was severely injured. Although the driver had automobile liability insurance in the minimum amount required in Pennsylvania,*fn1 the coverage was insufficient to provide financial recompense to the decedent's estate because of the multiple deaths. Accordingly, Margaret Hart, as administratrix of the estate of Hugh Hart, Jr., filed a claim pursuant to the uninsured motorist provision of the driver's policy to recover for losses not compensated by the liability coverage. She argued that exhaustion of the liability coverage without full satisfaction of her claim made the automobile in which the decedent was a passenger an uninsured vehicle within the purview of the uninsured motorist clause of the policy. The insurance carrier, State Farm Mutual Automobile Insurance Company [hereinafter State Farm], refused to pay the claim. The administratrix thereupon selected an arbitrator under a clause in the policy giving either party the right to demand arbitration if there was a dispute as to uninsured motorist coverage.*fn2 State Farm failed to select an arbitrator in
[ 288 Pa. Super. Page 56]
accordance with the applicable provision, thus preventing the matter from being submitted to arbitration. The administratrix then filed a petition in the Court of Common Pleas of Philadelphia County to compel the appointment of an arbitrator pursuant to the terms of the Act of 1927.*fn3 Perceiving that being underinsured is to be distinguished from being uninsured, the trial court reasoned that the policy's arbitration clause did not apply and that State Farm had properly refused to arbitrate. The trial court thus denied the petition and this appeal followed. For the reasons set forth below, we reverse.
We are met at the threshold of this case by this court's ability to entertain the present appeal since appellant's brief cites no rule or authority as the basis for appellate court jurisdiction. Pa.R.A.P. 2114. Admittedly, the Act of 1927 explicitly permits an appeal from "an order staying or refusing to stay the trial of a suit or proceeding pending arbitration, or from an order either directing or refusing to direct the parties to proceed to arbitration."*fn4
[ 288 Pa. Super. Page 57]
However, the provisions of the Act of 1927 are applicable only if the arbitration agreement specifically refers to the Act or there is other evidence, subsequent to the agreement, that the parties expressly or implicitly agreed that it should apply.*fn5 Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); P. Agnes, Inc. v. Philadelphia Police Home Association, 439 Pa. 448, 266 A.2d 696 (1970); Keller v. Local 249, International Brotherhood of Teamsters, 423 Pa. 353, 223 A.2d 724 (1966); J. A. Robbins Company v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1965); Wechsler v. Newman, 256 Pa. Super. 81, 389 A.2d 611 (1978). In the instant case, the arbitration agreement in the ...