No. 444 Philadelphia 1982, Appeal from the Judgment in the Court of Common Pleas, Civil Division, of Philadelphia County at No. 4194 August Term, 1981.
Roger J. Harrington, Philadelphia, for appellant.
Paul D. Keenan, Philadelphia, for appellee.
Wickersham, Wieand and Lipez, JJ.
[ 330 Pa. Super. Page 484]
This is an appeal from the judgment of the Court of Common Pleas of Philadelphia County, which resulted from an order denying appellant's petition to vacate or modify the arbitrator's award, and confirming the award of the arbitrators.
In July of 1978, Linda C. Haegele, age 16, died of injuries suffered while a passenger in an automobile owned by a Mr. Kaisinger. Linda's estate (hereinafter "Estate") received a payment of $15,000.00 under the liability provision of Kaisinger's automobile insurance policy. The payment was the maximum amount allowed per person in a single accident under Kaisinger's policy.
Because the Estate alleged damages exceeding $15,000.00,*fn1 and because Linda was covered under her father's insurance policy on two different vehicles,*fn2 the Estate filed a claim with its insurer, Pennsylvania General Insurance Company (hereinafter "Insurer"), appellant herein. The Estate sought $60,000.00 in underinsured motorist benefits under the policy, pursuant to provisions containing $30,000.00 in underinsurance coverage for each of the two vehicles insured by the Haegele family. In essence, the Estate sought to cumulate or "stack" the coverage.
When the Insurer refused to make payment on the claim, the Estate petitioned the Court of Common Pleas of Philadelphia County to compel the Insurer to arbitrate the claim pursuant to an arbitration provision in the policy. On March 4, 1981, the court ordered that the claim proceed to arbitration. Thereupon, the matter proceeded to arbitration under the terms of the Pennsylvania Uniform Arbitration
[ 330 Pa. Super. Page 485]
Act, 42 Pa.C.S. § 7301 et seq.*fn3 After a hearing on the merits, the arbitrators unanimously found in favor of the Estate for $60,000.00 in underinsurance coverage.
On August 25, 1981, the Insurer filed a timely petition to vacate or modify the arbitrators' award with the Court of Common Pleas of Philadelphia County. The Insurer's position was that the policy terms limited the underinsurance coverage to $30,000.00 -- the amount provided for one vehicle. The Estate responded by filing preliminary objections, which were treated by the lower court as an answer to the Insurer's petition. After hearing oral argument, the Honorable Eugene Gelfand entered an order on January 14, 1982, denying the Insurer's petition to vacate or modify, and confirming the arbitrators' award.
The Insurer filed no exceptions to Judge Gelfand's final order and on February 8, 1982, judgment was entered upon the order and award. The Insurer filed a timely notice of appeal from the lower court's denial of its petition and from the entry of judgment on the arbitrators' award. The Estate filed a motion to dismiss the appeal, citing the Insurer's failure to file exceptions and preserve issues for appeal. On May 26, 1982, our court denied the motion to dismiss, but directed the parties to address this issue in their briefs.*fn4
Appellant Insurer raises the following questions:
I. Was the proceeding before Judge Gelfand a hearing on a petition and not a ...