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JOHN J. CASSIDY v. KEYSTONE INSURANCE COMPANY (12/09/83)

filed: December 9, 1983.

JOHN J. CASSIDY
v.
KEYSTONE INSURANCE COMPANY, APPELLANT



No. 625 Philadelphia, 1982, Appeal from the Order entered February 22, 1982 in the Court of Common Pleas of Montgomery County, Civil Division, No. 81-10003

COUNSEL

Dean B. Stewart, Jr., Norristown, for appellant.

Bernard V. Digiacomo, Norristown, for appellee.

Cercone, President Judge, and Cavanaugh, and Wieand, JJ.

Author: Cercone

[ 322 Pa. Super. Page 169]

Appellant, Keystone Insurance Company, takes this appeal from the lower court's denial of appellant's petition to strike the award of arbitrators, and the granting of appellee's petition to confirm said award and from the judgment entered thereon. Appellant argues, inter alia, that the court erred in granting appellee's earlier petition to appoint an arbitrator where that petition was not properly served upon appellant. We find appellant's argument to have merit and we hereby vacate judgment and reverse the order or the lower court confirming the award of arbitrators.

On or around July 7, 1980, appellee, John Cassidy, was injured in an automobile accident in Dade County, Florida. The operator of the other vehicle involved in the accident fled the scene and is unknown. At the time of the accident, appellee was insured by appellant -- company. In due course, appellee retained counsel, and on March 18, 1981, counsel wrote a letter to appellant -- company, which, in relevant part, said:

Since more than eight months have already elapsed from the time of the accident, and since I am advised that you are in receipt of medical specials to date all in excess of $10,000.00, and since your policy coverage is in the sum of $15,000.00, I would think that a cursory review or your file should conclude in your offering us the $15,000.00 without the necessity of going into arbitration. In that regard, I am advising that we would withhold from proceeding in arbitration but only for a period of two weeks; in the event that you do not make the full offer of $15,000.00 in that time, I am herewith advising that I have selected as our arbitrator in this matter, David S. Katz, Esquire, 275 Commerce Drive, Fort Washington,

[ 322 Pa. Super. Page 170]

Pa., and I am further advising that you are to, in the event of non-amicable settlement, supply me and/or Mr. Katz of your selection of an arbitrator by no later than April 3, 1981.

If the matter has not concluded and you have not selected an arbitrator as above set forth, I am herewith advising that I will promptly file the Petition for the Appointment of an Arbitrator in the Court of Common Pleas of Montgomery County, Pennsylvania, a sample copy of which is enclosed for your file.

Appellant did not respond to this letter, whereupon, on May 22, 1981, appellee filed a petition for appointment of arbitrator. A copy of this petition was not served upon appellant in advance of the hearing on the matter. Nevertheless, the court granted appellee's petition and appointed an arbitrator in appellant's stead. Appellee, on that same day, sent appellant a certified letter advising appellant of the appointment and enclosing a copy of the petition and order.*fn1 Again, appellant did not respond. Thereafter, on June 3, 1981, one of the arbitrators sent a letter to both parties advising them of the date and time scheduled for the arbitration, the date being June 17, 1981. The next day, June 4, 1981, appellee sent appellant a letter in which appellee reiterated the date of the arbitration and listed the various medical bills which appellee intended to present. The morning of the arbitration hearing, counsel for appellant appeared and requested a continuance. This request was denied and the hearing proceeded, however counsel for appellant declined to participate. The arbitrators award was in favor of appellee. The next day, appellant filed a petition to strike the award of the arbitrators and to strike

[ 322 Pa. Super. Page 171]

    the order of the court of May 22, 1981, in which the court appointed an arbitrator on appellee's petition. Appellant argued, then, as now, that the filing of the petition to appoint an arbitrator was procedurally defective because the petition was not properly served on appellant. We agree.

A procedurally similar issue was decided by this Court in Keystone Wire & Iron Works, Inc. v. Van Cor, Inc., 245 Pa. Superior Ct. 537, 369 A.2d 758 (1976). In Keystone Wire, we were asked to interpret an earlier version of the Uniform Arbitration Act.*fn2 Specifically, our attention was ...


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