231 Pa. Super. 217 | Pa. Super. Ct. | 1974
Opinion by
Appellee was involved in an automobile accident while in the scope of his employment as an insurance agent. Since the operator of the other vehicle was uninsured, appellee sought to recover damages under the uninsured motorist provision of his automobile insurance policy, which was written by appellant.
The matter went to common law arbitration. In the meantime, appellee recovered $4,767.66 workmen’s compensation benefits. The reeord is not entirely clear but apparently at the arbitration hearing appellant argued that these benefits should be set off against the award, citing a provision in the policy to that effect. The arbitrators, however, made an award of $5,500, without any setoff. Upon being notified of the award, appellant tendered appellee in full satisfaction a check for $1,732.34 (the award less the workmen’s compensation benefits). Appellee refused to accept the check and filed an action in assumpsit against appellant to recover the entire award. In answering the complaint, appellant pleaded (as new matter) the setoff provision of the policy, alleging that therefore appellee was entitled to recover only the $1,732.34 tendered.
The law in this area may seem harsh, but it is clear. In the recent case of United Services Automobile Association Appeal, 227 Pa. Superior Ct. 508, 323 A. 2d 737 (1974), we collected and analyzed the cases dealing with review of common law arbitration of claims under a standard uninsured motorist clause and concluded that “the rule, to which all of the cases conform, is that where the application or construction of the uninsured motorist clause is at issue the dispute is within the exclusive jurisdiction of the arbitrators; the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy, or unconscionable. [Footnotes omitted.]” Id. at 516, 223 A. 2d at 741.
When an arbitrators’ award has been entered, the proper procedure to seek review is by petition to the court of common pleas to vacate the award. Here appellant did not file such a petition. Instead, when appellee attempted to collect the award by an action in assumpsit, appellant by pleading new matter attempted to use that action as a vehicle to relitigate the
Order affirmed in No. 119. Appeal dismissed in No. 155.
In fact there are two appeals, which have been consolidated. When the exceptions were dismissed, appellant appealed “on jurisdictional grounds,” citing the Act of March 5, 1925, P. L. 23, §1, 12 P.S. §672. When the judgment was entered, it filed a second appeal. We need not comment on this procedure.