¶ 1 Travelers Insurance Company (“Travelers”) appeals from the order entered on April 17, 2002, compelling arbitration of the claims of Appellee Ryan Neuhard (“Neuhard”) for underinsured motorist (“UIM”) benefits. We reverse and remand.
¶ 2 The faсts as gleaned from the record are as follows. On December 19, 1999, Neuhard was a passenger in an automobile owned and operated by Brandi' L. Tracy. Ms. Tracy’s vehicle was struck by a vehicle owned and operated by Randy Cholеwa. As a result of the collision, Neuhard suf
¶ 3 Neuhard filed a petition for a rule to show cause why his UIM claims should not proceed to arbitration. Travelers responded to the petition, arguing against compulsory arbitration. On February 14, 2002, the trial court granted Neuhard’s petition and ordered arbitration of Neu-hard’s claims. See, Trial Court Order, 2/14/03.
¶ 4 On April 17, 2002, pursuant to Travelers’ motion, the trial court amended the February 14th order to include the language required by 42 Pa.C.S.A. § 702(b), i.e., that the issues presented in the interlocutory order and the decision entered against Travelers involve a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of the matter. Thereafter, Travelers sought and obtained this Court’s permission to appeal the trial court’s interlocutory ordеr pursuant to 42 Pa.C.S.A. § 702(b) and Pa.R.A.P. 1311(a).
¶ 5 Travelers presents one issue for our review:
I. Whether the trial court erred when it ordered that Ryan Neuhard’s un-derinsured motorist claim be submitted to arbitration despite the absence of an agreement to arbitrate such claims under the applicable insurance policy?
Travelers’ Brief at 5.
¶ 6 Whether an agreement to arbitrate disputes exists is a question of law.
Emlenton Area Mun. Authority v. Miles,
¶ 7 Travelers first argues that thе trial court erred by compelling arbitration of Neuhard’s claim because there is no agreement to arbitrate the claim. Also, Travelers asserts that there is no statute or regulation requiring arbitration of Neuhard’s claim.
¶ 8 This Court has stated that:
When one рarty to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision.
Midomo Co., Inc. v. Presbyterian Housing Development Co.,
¶ 9 Well-settled principles of contract interpretation are employed to determine whether an agreement to arbitrate exists. Id. at 187.
The task of interpreting an insurance contract is gеnerally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to giveeffect to that language. Cоntractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This is not a question to be resolved in a vacuum. Rather, contractual terms are аmbiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. The polestar of our inquiry, therefore, is the language of the insurance policy.
Madison Construction Co. v. The Harleysville Mutual Insurance Co.,
¶ 10 The scope or the application of the arbitration clause itself may be an arbitrable issue, which the arbitrators are to decide.
Borgia v. Prudential Insurance Co.,
¶ 11 In the instant case, the trial court ordered the matter to proceed to arbitration. Trial Court Order, 2/14/02. The trial court relied upon the July 16, 2001 Declaratory Opinion and Order of the Insurance Commissionеr of the Commonwealth of Pennsylvania. See, In re: The Requirement of an Arbitration Provision in Private Passenger Uninsured and Un-derinsured Motorist Coverage, D09-07-001, Insurance Commissioner of the Commonwealth of Pennsylvania (Jul. 16, 2001) (“Declaratory Opinion and Order”). Thе Insurance Commissioner had issued a ruling that required binding arbitration provisions for both UM and UIM claims in all insurance policies. In its Declaratory Opinion and Order, the Insurance Commissioner had denied a petition of the Insurance Federation оf Pennsylvania, Inc., challenging the authority of the Pennsylvania Insurance Department to require binding arbitration provisions for UM and UIM claims. Id.
¶ 12 Our review of the record reflects the following. On December 19, 1999, Neuhard was injured while a passenger in Tracy’s vehicle, which had been struck by the Cholewa vehicle. After recovering pursuant to the policies of both drivers, Neuhard sought UIM claims under his parents’ policy, which provided coverage from January 20, 1999 to July 20, 1999. Neuhard also filed a pеtition to compel arbitration of his UIM claims.
¶ 13 The policy between Neuhard’s parents and Travelers contains, in pertinent part, the following provision:
Uninsured Motorists Arbitration
A. If we and an “insured” do not agree, either party may make a written demand for аrbitration. Issues or questions seeking to interpret language of this policy or to determine whether orhow coverage applies to an “insured” may not be arbitrated. Those issues and questions may not be part of any submission to the panel of arbitrators. This includes, but is not limited to, any issue or questions on:
8. the interpretation of defined terms, the insuring agreement, exclusions, the limits of liability, this arbitration clause, or any other of the policy’s terms and conditions.
Neuhard Insurance Policy, Uninsured/Un-derinsured Motorists Endorsement, at 6-7. The provision, however, did not mention arbitration for UIM claims.
¶ 14 The policy provision, therefore, demonstrates that an agreement exists that either party can make a written demand for arbitratiоn of uninsured motorist claims. The provision specifically encompasses uninsured motorist claims. However, contrary to Neuhard’s argument, the entire policy does not treat uninsured motorist benefits and UIM benefits indistinguishably, thereby creating an аmbiguity where one is mentioned and the other is not. Rather, the policy clearly titles each provision according to whether uninsured motorist benefits or UIM benefits are implicated. Since Travelers chose to omit UIM claims from the titlе of the arbitration provision, the arbitration provision does not apply to UIM claims. Therefore, UIM claims are outside the scope of the arbitration agreement, and the trial court erred by ordering arbitration.
¶ 15 Even if the omission of UIM claims from the title of the arbitration provision did create an ambiguity, such an ambiguity could not be resolved through arbitration. Paragraph A of the arbitration agreement states that “[I]ssues or questions seeking to interpret the languagе of this policy ... may not be arbitrated.” Paragraph “A” lists various issues that are not arbitrable. Paragraph “A.8” indicates that “the interpretation of ... this arbitration clause...” is not subject to arbitration. The clear language of this policy indiсates that the question of whether UIM claims are subject to the arbitration agreement is not within the scope of the arbitration agreement. Under Borgia, if the scope of the arbitration provision includes resolution of an issue, then the issue should proceed to arbitration. Here, the arbitration provision specifically excludes issues involving the interpretation of the arbitration provision. Accordingly, the issue is to be resolved through court proceedings.
¶ 16 The trial сourt relied upon the Pennsylvania Insurance Commissioner’s Declaratory Opinion and Order to determine that Neuhard’s UIM claims must be arbitrated. Travelers asserts that there is no regulation or statute dictating arbitration of UIM claims in the absenсe of an agreement between the parties. In the Declaratory Opinion and Order, the Insurance Commissioner ruled that the Pennsylvania Department of Insurance has the authority to disapprove any insurance policy that dоes not contain an arbitration provision for UM and UIM claims. Declaratory Opinion and Order, 7/16/01, at 9. This decision was upheld by our sister court in
Insurance Federation of Pennsylvania v. Koken,
¶ 17 We observe that the Declaratory Opinion and Order was issued subsequent to the issuance of the instant policy. “A regulation promulgated by an administrative agency shall not be construed to have a retroactive effect unless it was clearly and manifestly intended to be so applied.”
Hospital Ass’n of Pennsylvania, Inc. v. Foster,
¶ 18 Travelers also challenges the constitutionality of compelling arbitration in the absence of an agreement to arbitrate. Specifically, Travelers asserts that compelling arbitration where there is no agreement to arbitrate infringes on a party’s constitutional right to a jury trial.
¶ 19 This issue is waived. Pursuant to Pa.R.A.P. 302(a), issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a);
see also, Wagner v. Erie Ins. Co.,
¶ 20 We reverse and remаnd for further proceedings consistent with this Opinion.
¶ 21 Order reversed. Case remanded. Jurisdiction relinquished.
Notes
. Although Travelers’ constitutional issue is waived, we have already afforded Travelers relief. Therefore, it would be unnecessary to address the issue.