No. 36 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 80-06548.
Kim Darragh, Pittsburgh, for appellant.
Harry Stump, Pittsburgh, for appellees.
Wickersham, Wieand and Beck, JJ.
[ 301 Pa. Super. Page 79]
This is an appeal from an order sustaining preliminary objections by way of a demurrer and dismissing a petition for declaratory judgment and injunctive relief concerning an uninsured motorist claim. Appellee Robert C. Amity was injured July 20, 1978 in a motorcycle accident with a third party who was insured by Allstate Insurance Company. Allstate paid the limit of their client's policy, $15,000 to the Amitys in settlement of the Amitys' claims against the third party.
The Amitys then brought a claim pursuant to their uninsured motorist coverage against their own insurance carrier, appellant Balboa Insurance Company (hereinafter Balboa), alleging that the third party was an uninsured motorist for that portion of their claim in excess of $15,000. The claim was denied by Balboa and the Amitys then invoked the arbitration provision in their policy. Both the Amitys and Balboa appointed an arbitrator. Subsequently, the Amitys filed a petition asking the lower court to appoint the third arbitrator which was opposed by Balboa in an answer with new matter on the basis that Robert C. Amity was not injured by an uninsured motorist. Judge Louis S. Farino appointed the third arbitrator in an order dated March 24, 1980.
Balboa then filed an action in federal court requesting a declaratory judgment and an injunction as to further proceedings by the arbitrators. Reasoning (i) that Balboa's federal suit was an attempt to forum shop in contravention of 28 U.S.C. § 1446(b) (1970) and (ii) that the parties involved, the issues raised, and the facts presented in Balboa's federal action were identical to those in the state proceeding, on November 13, 1980, the federal court remanded the case to the court of common pleas where it was assigned the same docket number given to the Amitys' prior petition for the appointment of the third arbitrator.
[ 301 Pa. Super. Page 80]
Balboa then filed a petition for a declaratory judgment that Robert C. Amity's injuries suffered on July 20, 1978 were not inflicted by an uninsured motorist and requesting an injunction barring further proceedings by the arbitrators. The Amitys filed preliminary objections by way of a demurrer to the petition. On December 15, 1980, Judge Bernard J. McGowan entered an order sustaining the Amitys' preliminary objections by way of a demurrer and dismissing Balboa's petition for a declaratory judgment and for an injunction. An application for a stay of the arbitration proceedings was granted on February 4, 1981 by the Superior Court after having been previously denied by the lower court.
Appellant Balboa frames the first of the questions involved as follows:
Can a motorist be held to be an uninsured motorist, under the terms of the policy in question, where admittedly he carries at least the minimum limits of liability coverage mandated by the law of Pennsylvania, and the appellee has been ...