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EMMANUEL JOHNSON v. TRAVELERS (12/13/85)

filed: December 13, 1985.

EMMANUEL JOHNSON, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, EMMA JOHNSON AND EMMA JOHNSON IN HER OWN RIGHT, APPELLANT
v.
THE TRAVELERS



Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil Division, No. 174 APR T, 1983

COUNSEL

Paul M. Perlstein, Philadelphia, for appellant.

George S. Donze, Philadelphia, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Cirillo, Olszewski, Beck and Tamilia, JJ.

Author: Tamilia

[ 348 Pa. Super. Page 279]

On June 26, 1981, appellant Emmanuel Johnson, a minor, was struck by an uninsured motor vehicle, sustaining injuries for which he and his mother, appellant Emma Johnson, sought compensation under the Pennsylvania Assigned Claims Plan, (PACP). Because no settlement could be reached with the designated obligor/appellee, Travelers Insurance Co., appellants sought binding arbitration. Their demand was never acknowledged by appellees, and a subsequent Petition to Compel Arbitration was denied by the lower court. This appeal followed, presenting us with the question of the procedure to be followed by a victim seeking to enforce his rights to uninsured motorist benefits.

Prior to reaching the procedural issue which is the crux of this appeal, however, we must address the threshold question presented by appellee's motion to dismiss for failure to file exceptions to the trial court's order refusing to appoint an arbitrator. Appellees argue that Distler v. Pa. Assigned Claims Plan, 318 Pa. Super. 487, 465 A.2d 658 (1983), and Jones v. State Automobile Ins. Assoc., 309 Pa. Super. 477, 455 A.2d 710 (1983) present the governing authority. The latter case held that an action for benefits under the No-Fault Insurance Act cannot be by petition and rule, but must be commenced by complaint in assumpsit, and therefore, necessarily involves adherence to Rule 1038,

[ 348 Pa. Super. Page 280]

    which requires the filing of exceptions in order to preserve issues for appellate review. Distler posits a corollary to this rule, which states that the erroneous filing of a no-fault benefits petition is a waivable defect.*fn1 In neither of these cases, however, was the issue, as here, one concerning the requisite procedural sequitur to a demand for arbitration. In Distler, the issue was the appointment of an insurance company to represent an uninsured motorist claim, and in Jones, it was the propriety of utilizing petition and rule to commence an action for first party no-fault benefits.

Appellee assumes, somewhat prematurely, that because arbitration is an inappropriate means of resolution in the circumstances of this case, that its impact as a factor in these proceedings is negligible in all respects.

This issue is directly addressed by 42 Pa.C.S.A § 7320(a)(1), which provides that:

§ 7320. Appeals from court orders

(a) General rule. -- An appeal may be ...


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