Appeal from the Order of the Court of Common Pleas, Civil Division, of Berks County at No. 5237 Equity 1984.
Donald F. Smith, Jr., Reading, for appellant.
James M. Lillis, Reading, for appellee.
Wickersham, Johnson and Watkins, JJ.
[ 358 Pa. Super. Page 84]
In July of 1976 plaintiff-appellant Robert C. Nagle was injured in an accident when he was attempting to attach an automobile to a tow truck. The automobile was struck from behind by a vehicle operated by one Jeffrey T. Shealer, an employee of Tecnad Enterprises. The vehicle operated by Shealer was owned by Larry J. Weller, but was allegedly being operated without permission.
Appellant, who was at the time a member of his father's household (Charles F. Nagle) requested uninsured motorist benefits from appellee Allstate Insurance Company, which insured Charles's vehicles.*fn1 Allstate refused to submit to arbitration or to appoint an arbitrator, and denied any uninsured motorist benefits to appellant. The lower court, by the Honorable W. Richard Eshelman, denied a petition to compel Allstate to submit appellant's claim for uninsured motorist benefits to arbitration.*fn2 This appeal followed, and the issue is stated as:
III. Whether Robert C. Nagle is entitled to have his claim for uninsured motorist benefits arbitrated as
[ 358 Pa. Super. Page 86]
provided by the insurance contract despite his having entered into settlement without the consent of the uninsured motorist insurer?
Brief for Appellant at 3.
In his memorandum opinion dated March 12, 1986 Judge Eshelman gives us the further facts:
Plaintiff responded by commencing the within action in equity by writ of summons against defendant. Plaintiff then filed a petition to compel arbitration. Defendant alleged in its motion to dismiss plaintiff's petition, which accompanied defendant's answer to the petition, that settlements were entered into by plaintiff with Weller and Tecnad without defendant's consent thereby precluding uninsured motorist coverage under the Uninsured Motorist Act, 40 P.C.S.A. Sec. 2000(e)(2). In plaintiff's answer and new matter in response to defendant's motion to dismiss, plaintiff admitted that he entered into agreements of settlement for one thousand dollars each with Weller and Tecnad after naming them as co-defendants with Shealer in an action of trespass arising from this accident (i.e., No. 127 August 1978, Berks County), and that plaintiff had prosecuted the action in trespass to judgment against Shealer for two hundred thousand dollars. Defendant had neither consented to the action in trespass against Shealer, Weller and Tecnad nor to plaintiff's settlement of claims against Weller and Tecnad.
After argument and consideration of briefs filed, the court denied plaintiff's petition to compel arbitration and granted defendant's motion to dismiss plaintiff's petition. Upon praecipe by plaintiff, judgment was entered in the within action based on the final order entered January 2, 1986. Plaintiff argues that the court committed error by failing to compel arbitration because the insurance contract, which is the basis of this action for uninsured ...