Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, at No. 2905 November Term 1981.
Allen L. Feingold, Philadelphia, for appellant.
Michael W. McCarrin, Philadelphia, for appellee.
Cirillo, Montemuro and Popovich, JJ.
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This is an appeal from the order of the Court of Common Pleas of Philadelphia County, later reduced to judgment, denying a motion to vacate an arbitration award entered against the plaintiff, Robyn Littlejohn, and, in turn, confirming the award.*fn1 We affirm.
On the 20th of June, 1977, Ms. Littlejohn was awaiting the change of a red light at an intersection when the vehicle she occupied was struck by one driven by a Carl Stewart. It was Ms. Littlejohn's belief that a third vehicle hit the rear of the Stewart automobile and caused it to make contact with her vehicle. The identity of this alleged third party was never discovered, nor, in fact, was it ever proven that such a third vehicle ever existed.
In February of 1980, Ms. Littlejohn instituted a complaint in assumpsit and trespass against her carrier, Keystone Insurance Company, for failing to honor her claim for uninsured motorist benefits arising out of the actions of the purported third motorist who left the scene of the accident. Alternatively, in November of 1981, Ms. Littlejohn also filed a petition seeking the appointment of a neutral arbitrator to expedite the resolution of the matter, as provided for in the policy of insurance.
Keystone filed an answer and new matter, accompanied by a memorandum of law, arguing that the plaintiff's election to file suit in Common Pleas Court precluded her from seeking the identical relief through arbitration. If the court did not agree, then Keystone asked that all judicial proceedings be stayed pursuant to 42 Pa.C.S.A. § 7304(d).
All proceedings in Common Pleas Court were ordered stayed and the parties were directed to commence arbitration. In accordance therewith, a 3-member panel was selected and heard evidence in September of 1982, the consequence of which was the entry of an award, with one arbitrator dissenting, that read: "Find in favor of defendant
[ 353 Pa. Super. Page 66]
and against plaintiff." Exceptions and a motion to vacate the award were filed and denied by the court. This appeal followed.
Two of the four issues raised by the plaintiff were adequately addressed by the court below. The third question, labelled Roman numeral IV in the plaintiff's appellate brief, does not appear in the Exceptions and Motion to Vacate filed with the court below. Therefore, we hold this matter waived. Cf. Commercial Credit Corp. v. Cacciatiore, 343 Pa. Super. 430, 495 A.2d 540 (1985). Even if, for the sake of argument, we were to hold the issue preserved, our determination would not be altered since it is intertwined with the "settlement" disclosure issue, a subject which we have found to be meritless. See discussion infra. ...