Children's Hospital v. American Arbitration Ass'n , 231 Pa. Super. 230 ( 1974 )

Concurring Opinion by

Spaeti-i, J.:

I believe a caveat is in order about the application of the Act of April 25, 1927 (The Arbitration Act) to this case.

“The rule has been reiterated in many recent decisions that the provisions of the Act of 1927 are applicable only if the agreement specifically refers to the Act or there is other evidence justifying the conclusion that both parties agreed either expressly or impliedly that the provisions of the Act should apply. Keller v. Local 249, 423 Pa. 353, 223 A.2d 724 (1966); Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965); John A. Robbins Co., Inc. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1865); Freeman v. Ajax Foundry Products, Inc., 398 Pa. 457, 159 A.2d 708 (1960), aff’g 20 Pa. Dist. & Co. R.2d 128 (1959); A. J. Curtis & Co. v. D. W. Falls, Inc., 305 F.2d 811 (3 Cir. 1962).” La Vale Plaza, Inc. v. R. S. Noonan, Inc., 378 F.2d 569, 571-572 (3d Cir. 1967). In La Vale Plaza, the contract provided that the arbitration clause “shall be specifically enforceable under the prevailing arbitration law.” Citing Robbins Co., Inc. v. Airportels, Inc., supra, the court held that this language was not sufficiently specific to bring the arbitration within the Arbitration Act, and that it was therefore at common law.

In the contract in the present case the language is precisely the same as it was in the contract in La Vale Plaza. Accordingly, had the issue been raised, it would presumably have been held below that the Arbitration Act was not applicable. However, no party objected to the application of the Arbitration Act below, and all have argued it in their briefs on this appeal. Since this is not an uninsured motorist insurance case, jurisdictional defects may be waived.¹ Because of this waiver I agree with the result reached by Judge Van der Voort. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Whether the same result would be reached in a common law arbitration need not be decided.

1 Jurisdictional defects cannot be waived on appeals from common law arbitrations under uninsured motorist insurance coverage, even when they are waived explicitly. Allstate Ins. Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969) ; accord, United Services Automobile Association Appeal [Webb v. United Services Automobile Ass’n.], 227 Pa. Superior Ct. 508, 515 n.6, 323 A.2d 737, 740 n.6 (1974).