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VINCENT CUNNINGHAM AND DEBORAH MARCUS v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY (03/08/85)

filed: March 8, 1985.

VINCENT CUNNINGHAM AND DEBORAH MARCUS, APPELLANTS,
v.
PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, A SUBSIDIARY OF PRUDENTIAL INSURANCE COMPANY OF AMERICA, APPELLEE



No. 506 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2127 December Term, 1981.

COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Charles W. Craven, Philadelphia, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Wieand, Cirillo, Del Sole, Montemuro, Johnson and Popovich, JJ.

Author: Wieand

[ 340 Pa. Super. Page 132]

Vincent Cunningham, the insured operator of a motor vehicle, and Deborah Marcus, a passenger, were injured in a one car accident. Alleging that they had been forced off the road by an unknown motorist who did not stop, Cunningham and Marcus submitted uninsured motorist claims to Cunningham's insurance carrier, Prudential Property and Casualty Insurance Company (Prudential). In a complaint filed in assumpsit, the claimants alleged that Prudential had breached the arbitration clause in its policy by failing, upon demand, to appoint an arbitrator. Because Prudential breached its agreement to arbitrate, claimants contended, the insurer became liable to them in damages. Those damages, they alleged, were the same as and were to be measured by the damages which might have been recovered against the alleged but unidentified third party tortfeasor. Their right to recover damages for their personal injuries, they contended, depended solely upon proof that Prudential had breached its contract by failing to make timely appointment of an arbitrator. Prudential filed preliminary objections which included a demurrer to the complaint. The trial court sustained the demurrer and dismissed the complaint without prejudice to claimants' right to commence an action to compel arbitration. Claimants appealed. We affirm.

Initially, it is necessary to address Prudential's motion to quash the appeal on grounds that the trial court's order is not final and, therefore, not appealable. Because appellants have not been precluded from pursuing their claim before arbitrators, it is argued, they have not been put out of court. Although the argument appears to have superficial appeal, closer examination reveals its lack of merit. Appellee's argument fails to recognize that the

[ 340 Pa. Super. Page 133]

    cause of action alleged by appellants, i.e., that they are entitled to be compensated for their personal injuries because Prudential failed to make a timely appointment of an arbitrator, has been decided finally. On the cause of action which appellants alleged in their complaint, they are out of court. It is true, of course, that they may have a separate cause of action to compel Prudential to arbitrate the merits of an asserted claim for uninsured motorist benefits under the policy of insurance. On their attempt to connect their personal injuries causally to Prudential's alleged refusal to arbitrate, however, they are out of court. The trial court has held that claimants' personal injuries are not related causally and damages therefor cannot be collected from Prudential merely because it refused to appoint an arbitrator to determine the validity of appellants' uninsured motorist claims. This is an order which is final and appealable. Cf. Board of Education v. Philadelphia Federation of Teachers, Local No. 3, 464 Pa. 92, 95-96 n. 2, 346 A.2d 35, 37 n. 2 (1975) (order final and appealable where it sustained demurrer to complaint in equity and directed case to arbitration).

Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom. Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983). Conclusions of law, however, are not admitted by a demurrer. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 379, 368 A.2d 675, 679 (1977). It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks. Rose v. Wissinger, 294 Pa. Super. 265, 270, 439 A.2d 1193, 1196 (1982), quoting Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979). If the plaintiff does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Id. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action. Id. See also: Rubin v. Hamot Medical Center, 329 Pa. Super. 439, 441,

[ 340 Pa. Super. Page 134478]

A.2d 869, 870 (1984); Greenspan v. United Services Automobile Association, 324 Pa. Super. 315, 318-321, ...


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