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FORREST DORSEY v. NATIONWIDE INSURANCE COMPANY (08/09/85)

filed: August 9, 1985.

FORREST DORSEY, APPELLANT,
v.
NATIONWIDE INSURANCE COMPANY, APPELLEE



Appeal from Orders of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4626 September, 1983.

COUNSEL

James Womer, Philadelphia, for appellant.

Robert Keller, District Attorney, Philadelphia, for appellee.

Wieand, Watkins and Geisz,*fn* JJ.

Author: Wieand

[ 345 Pa. Super. Page 255]

This is an appeal from an order refusing to vacate an arbitration award which determined that the appellant, Forrest Dorsey, was not entitled to recover uninsured motorist benefits from his automobile insurance carrier. We affirm. However, a separate court order which imposed personal

[ 345 Pa. Super. Page 256]

    liability upon appellant's counsel for payment of the fee of the neutral arbitrator must be reversed.

Forrest Dorsey was injured on September 2, 1980 when the automobile which he was driving was hit in the rear by another motorist near the intersection of Second and Race Streets in Philadelphia. Dorsey alleged that he had been forced to stop suddenly because two cars preceding him had stopped unexpectedly. Appellant filed a claim with his automobile insurance carrier, Nationwide Insurance Company (appellee herein), for uninsured motorist benefits. He asserted that the accident had been caused by an unidentified driver who went through a red light at Race and Second Streets, forcing appellant and the two drivers in front of him to stop suddenly. When the insurer denied his claim, appellant petitioned the court to compel arbitration. The parties were unable to agree upon a third, neutral arbitrator, and the court appointed Joseph M. Smith, Esquire, a member of the bar who practiced in Montgomery County. Smith served as chairman of the panel. A hearing was held on February 16, 1984, and a majority of the panel found in favor of the insurer. Appellant filed exceptions to the arbitrators' decision and a motion to vacate the award. The exceptions were dismissed and the motion to vacate was denied on April 12, 1984. Appellant filed a petition for reconsideration, based on additional depositions, but the court continued to deny relief. Appellant then filed an appeal from the order denying his motion to vacate. (No. 1369 Philadelphia, 1984).

While that appeal was pending, it came to the court's attention that Smith had not been paid the part of his fee which, under the contract of insurance, appellant was obligated to pay. A hearing was held on June 20, 1984, after which the court found that appellant had no assets with which to pay Smith. The court also found that appellant had never been informed by his counsel, Allen Feingold, Esquire, that appellant would be obligated to pay one-half of the neutral arbitrator's fee. The Court ordered Feingold to pay the $190.00 owed by his client to Smith. A separate

[ 345 Pa. Super. Page 257]

    appeal has been taken by Feingold from that order. (No. 1865 Philadelphia, 1984).

The parties are agreed that the arbitration clause of the insurance contract between appellant and appellee provided for common law arbitration. The contract of insurance did not refer to statutory arbitration. Rather, the agreement provided for arbitration according to the rules of the American Arbitration Association. The agreement, therefore, directed common law arbitration. See: Gentile v. Weiss, 328 Pa. Super. 475, 477 A.2d 544 (1984). "The decision of the arbitrator in a common-law arbitration is binding and cannot be attacked unless it can be shown by clear, precise and indubitable evidence that a party was denied a hearing, or that there was fraud, misconduct, corruption or other irregularity which caused the rendition of an unjust, inequitable or ...


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