No. 931 Philadelphia, 1981, Appeal from the Order of March 13, 1981, in the Court of Common Pleas of Delaware County, Civil Action, Law, No. 80-13009.
Roger Joseph Harrington, Philadelphia, for appellant.
Richard F. Furia, Philadelphia, for appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 307 Pa. Super. Page 290]
This is an appeal from an order granting a petition to enforce an arbitration agreement. The appeal will be quashed.
The arbitration agreement in question is contained in the underinsured motorist provision of an insurance policy issued by appellant. Appellee made the provision an exhibit to his petition to enforce the arbitration agreement. R.R. 28a-29a. In its answer to the petition, appellant not only did not deny that the exhibit accurately stated the arbitration agreement, it repeated the terms of the agreement. R.R. 9a. The lower court concluded that as thus pleaded, the arbitration agreement provided for common law arbitration. Slip op. at 4-5. This conclusion was correct, and appellant does not dispute its correctness.
In these circumstances, appellant's appeal must be quashed. For we have held that an order directing common law arbitration is not an appealable order. Cassidy v. Keystone Ins. Co., 297 Pa. Super. 421, 443 A.2d 1193 (1982); Wilson v. Keystone Ins. Co., 289 Pa. Super. 101, 432 A.2d 1071 (1981).
In cases such as this, one must start by asking what sort of arbitration is involved. If the arbitration agreement provides for arbitration under the Pennsylvania Arbitration Act of 1927,*fn1 then an order granting a petition to enforce the agreement is appealable. It is, because a statute makes it so. 42 Pa.C.S.A. § 7320; Wilson v. Keystone Ins. Co., supra. If the arbitration agreement provides for common law arbitration, then the appealability of an order granting a petition to enforce the agreement is governed by general principle; there is no statute making the order appealable.
[ 307 Pa. Super. Page 291]
As a matter of general principle, an order is not appealable unless it puts the appellant "out of court." Sometimes an order will not literally put the appellant out of court but still it will be appealable because as a practical matter the appellant will be unable to present his claim. Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683 (1981) (collecting cases).
An order refusing to direct common law arbitration is not appealable, for the appellant -- the party objecting to the order -- is not only not out of court, he is in court; that he is is the very basis of his objection. Thus there is nothing final, in any sense, about the ...