No. 1789 Phila., 1981, Appeal from the Judgment Entered June 16, 1981, in the Court of Common Pleas of Delaware County, Civil Action, Law, at No. 78-17057.
Charles W. Craven, Philadelphia, for appellant.
Peter J. Rohana, Springfield, for Contrisciane, appellee.
Robert A. Rosin, Philadelphia, for Aetna, appellee.
Johnson, Watkins and Lipez, JJ. Lipez, J., concurs in the result.
[ 312 Pa. Super. Page 551]
This appeal comes to us from a judgment and order of the Court of Common Pleas of Delaware County modifying an arbitrator's award.
The case arises from a sequence of events which occurred on December 26, 1976, which resulted in the death of Kenneth A Contrisciane. The decedent was operating an automobile owned by his employer, Future Cars, Inc., when he was involved in a minor traffic accident with a car operated by Ann Killen. A police officer quickly arrived, at which time the decedent was standing by the driver's window of Ms. Killen's car exchanging information with her. The police officer requested the decedent to get his owner's card and operator's license from his car. When the decedent returned, the police officer was sitting in the police car completing an accident report. While the decedent was standing beside the police car, he was struck and killed by
[ 312 Pa. Super. Page 552]
an automobile driven by David Patterson, an uninsured motorist.
The appellee, as executrix of the estate of the decedent, filed suit against Utica Mutual Insurance Company, the motor vehicle insurance carrier for the decedent's employer, and also against Aetna Casualty and Surety Company, the motor vehicle insurance carrier for the decedent's father. The Utica policy covered fifteen vehicles with limits of $15,000 -- $30,000, and The Aetna policy covered three vehicles with the same limits. This matter proceeded to arbitration in accordance with the Pennsylvania Arbitration Act of 1927, 5 P.S. 161 et seq. The arbitrators concluded that the appellee was entitled to compensatory damages in the amount of $200,000, but decided that the appellee's recovery was limited to $15,000 from Aetna. The panel concluded that since the decedent was not a named insured under any of the policies and he did not pay any of the premiums, he was only entitled to coverage under one policy. The panel also found that the appellee could not recover under the Utica policy since the decedent was a pedestrian at the time he was struck. According to the terms of the Utica policy, appellee's decedent could be considered an insured only if he was "occupying" a vehicle insured by Utica. The Utica policy defined the term "occupying" as "in or upon or entering into or alighting from." The panel found as a matter of fact that the decedent was standing on the highway approximately ninety-seven feet from his employer's vehicle when he was struck and therefore was not occupying the vehicle. Appellee filed a petition to Vacate, Modify, or Correct an Arbitration Award on November 20, 1978. The Court of Common Pleas held that the decedent was occupying his employer's vehicle at the time he was struck and modified the award so as to exonerate Aetna and hold Utica liable for $200,000.
Utica appealed asserting that the Court of Common Pleas exceeded its powers of review when it modified the arbitrator's award. Section 11 of Arbitration Act of 1927, 5 ...