Allstate Ins. Co. v. Fioravanti
| Decision Date | 19 January 1973 |
| Citation | 299 A.2d 585,451 Pa. 108 |
| Parties | , 75 A.L.R.3d 125 ALLSTATE INSURANCE COMPANY, Appellant, v. Anthony FIORAVANTI, etc., Appellee. |
| Court | Pennsylvania Supreme Court |
Joseph G. Manta, James M. Marsh, LaBrum & Doak, Philadelphia, for appellant.
Stanton Dubin, Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
This appeal necessitates once again our consideration of the finality which is accorded awards made by an arbitration panel.
Appellant, Allstate Insurance Company, filed a petition in the Court of Common Pleas of Philadelphia to set aside an arbitration award made in favor of appellee, Anthony Fioravanti. Appellee filed preliminary objections in the nature of a demurrer and to strike Allstate's petition. The trial judge sustained these objections, dismissed the petition and entered judgment on the award of the arbitrators. The Superior Court affirmed in a per curiam opinion, 221 Pa.Super. 761, 291 A.2d 896, and allocatur was granted to this Court.
The roots of the dispute lie in the following facts. On September 11, 1970, a three-year old girl, daughter of Louis Fioravanti, was struck and injured by an uninsured motorist. A claim was submitted Under the uninsured motorists clause of a policy issued to Anthony Fioravanti, the grandfather of the child and the father of Louis, which Allstate refused to pay. The policy provision calling for arbitration of such claims under rules of the American Arbitration Association was then invoked by appellee. A three-lawyer panel was selected, facts were stipulated--the lack of insurance covering the tortfeasor, and the freedom from contributory negligence of the young girl--and, after a hearing, an award was announced in favor of the claimant for $3500. The sole question argued to and passed on by the arbitrators was a question of estoppel. 1
The gravamen of Allstate's complaint is that it was denied a full and fair hearing and thus, due process of law, when the arbitrators refused its counsel's request to submit a memorandum of law on the controlling legal issue of the case.
Since this appeal is from the sustaining of preliminary objections in the nature of a demurrer, the facts before us are confined to appellant's complaint since the demurrer admits for present purposes every well pleaded material fact set forth in the complaint as well as the inferences reasonably deducible therefrom. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964). In reviewing this complaint, we are mindful of the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968). By this we mean it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Any doubt should be resolved by a refusal to sustain the objections. Birl v. Philadelphia Electric Company, 402 Pa. 297, 167 A.2d 472 (1960).
Appellant earnestly contends that there is a clear parallel between the present case and Smaligo v. Fireman's Fund Insurance Company, 432 Pa. 133, 247 A.2d 577 (1968), wherein this Court found a denial of a full and fair hearing.
The Smaligos had instituted arbitration proceedings to recover for the death of their thirty-seven-year-old daughter who was killed by a hit-and-run driver. They were awarded $243. The parents then moved to vacate the award on the ground that the arbitrator denied their request for a recess to obtain the testimony of decedent's attending physician as to certain medical matters having a bearing on the daughter's future work capacity. The lower court vacated the award and remanded the case for a hearing de novo before another arbitrator, and we affirmed. Writing for the Court, Mr. Justice (now Chief Justice) Jones said at pp. 137--138, 247 A.2d at p. 579:
counsel did proffer medical testimony which was relevant and of great import in the determination of loss of future earnings of the decedent and that the arbitrator determined such testimony was not necessary. It may be true that Smaligos' counsel should have come prepared with the medical testimony at the time of the hearing and that perhaps the necessity of such testimony came to him as an 'afterthought' (as stated by the arbitrator), but such observations cannot militate from the all-important fact that counsel did at the time of the hearing make an offer to present the medical testimony and the arbitrator viewed such testimony as 'unnecessary'.
The analogy appellant advances is that in Smaligo plaintiff was denied the opportunity to present factual evidence on a crucial factual issue while here it was deprived of the opportunity to present a memorandum On the controlling legal issue.
We see more parabola than parallel in the two cases. The arbitrator's action in Smaligo let to the Complete omission of critical factual evidence. Instantly, there was no such omission and the attempted equation fails for that reason. As hereinbefore noted, estoppel was the only controverted element in the case and appellant's counsel addressed himself to the issue in his opening argument, illustrated his position by cross-examination of appellee's witnesses, 2 remet the issue and again explicated the company's position in the closing oral argument. At most, one Form of argument was closed off by the arbitrators, The argument itself was not.
It is thus our judgment that this hearing had the necessary essentials of due process, i.e., notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause. See Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958). It is a commonplace that adjudicatory action cannot validly be taken by any tribunal, whether judicial or administrative, except upon a hearing, wherein each party shall have the opportunity to know of the claims of his opponent, to hear the evidence introduced against him, to cross-examine witnesses, to introduce evidence in his own behalf and to make argument. Unquestionably these prerequisites were met by the instant proceeding and not in a perfunctory fashion. As we have stated, no evidence or argument was precluded at this hearing; what was precluded was a form or mode of argument, not its substance, which does not amount to a denial of an opportunity to defend. 3
Having found no denial of a full and fair hearing, we now must turn to the allegation that the arbitrators' award constituted a constructive fraud.
As a preface to this discussion, we note the consistent position of this Court that '(i)f the appeal is from a common law award, App...
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