Novakovsky v. Hartford Acc. & Indem. Co.

• Decision Date: 22 June 1971
• Citation: 219 Pa.Super. 5,280 A.2d 669
• Parties: Gabriel NOVAKOVSKY v. HARTFORD ACCIDENT & INDEMNITY CO., Appellant.
• Court: Pennsylvania Superior Court

Page 669

280 A.2d 669

219 Pa.Super. 5

Gabriel NOVAKOVSKY v. HARTFORD ACCIDENT & INDEMNITY CO., Appellant.

Superior Court of Pennsylvania.

June 22, 1971.

Application for Allocatur Denied Sept. 24, 1971.

Charles J. Duffy, Jr., Lancaster, Mentzner, Coyne & Duffy, Pittsburgh, for appellant.

Leonard E. Price, Pittsburgh, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

HOFFMAN, Judge.

This case involves an uninsured motorist claim which was submitted to common law arbitration in accordance with the provisions of appellee's automobile insurance policy. Early in January of 1970 a complete hearing was held before an arbitrator and briefs were submitted by both parties in support of their respective positions. On May 8, 1970, the arbitrator entered an award in favor of appellant-defendant thereby denying appellee-plaintiff's claim.

Appellee filed a petition to vacate the arbitration award in the Common Pleas Court of Allegheny County. After argument, the court vacated the award and remanded the case for a hearing before a new arbitrator. From this order, the instant appeal followed.

Appellee's contention, accepted by the trial judge, was that the arbitrator's determination constituted 'gross' or 'palpable' error and is therefore reviewable. As support for this position, appellee relies on the fact that prior to the arbitration award, on March 23, 1970, this Court handed down Bankers v. State Farm Mutual Automobile Insurance Co., 216 Pa.Super. 162, 264 A.2d 197 (1970) (Allocatur Denied), which declared invalid and unenforceable an uninsured motorist exclusionary clause identical to a relevant provision contained in the policy involved in the instant case. ¹ Appellee contends that Bankes is controlling and that the arbitrator, who had not seen Bankes prior to the entry of the award, ignored the applicable law in reaching his decision.

To hold that appellee is entitled to appeal the arbitrator's award would require us to reverse the position consistently taken by our appellate courts that, in common law arbitration, the arbitrator is the final judge of both the facts and the law and that his decision will not be reviewed or disturbed for mistake of either. '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 unconscionable award.' Smith v. Employers' Liability Assurance Corp., 217 Pa.Super. 31, 33--34, 268 A.2d 200, 201 (1970); e.g., Great American Insurance Co. v. American Arbitration Association, 436 Pa. 370, 260 A.2d 769 (1970); P. G. Metals Co. v. Hofkin, 420 Pa. 620, 218 A.2d 238 (1966); Harwitz v. Selas Corporation of America, 406 Pa. 539, 178 A.2d 617 (1962).

The reasoning behind this rule was clearly enunciated in Westinghouse Air Brake Co. Appeal, 166 Pa.Super. 91, 97, 70 A.2d 681, 684 (1950), where this Court noted that 'a...