CONCURRING Opinion by
Spaeth, J.:I join in Judge Cercone’s opinion and only wish to add a comment regarding practice.
This suit is based upon a written contract of insurance, yet no copy of the policy is included in the complaint (or anywhere else in the record), nor is its absence explained. This is a violation of Pa. R. C. P. No. 1019 (h), and although presumably any objection is long since waived, it is no aid to this court to omit the document that is central to the controversy.
If the policy did contain a standard uninsured motorist clause (including a common law arbitration provision), and then the insured signed an agreement waiving that clause’s protection, it would follow that the lower court had no jurisdiction over the dispute. This would be so because the arbitration provision in the uninsured motorist clause would vest jurisdiction in the *83arbitrators to decide the validity of the agreement of waiver. Put differently, the agreement of waiver would be treated the same as would be any other claim by the company that the clause did not apply, and our Supreme Court has consistently held that even defenses going directly to the applicability of the common law arbitration clause (when the clause is present) are to be decided by the arbitrators, not the courts. Hartford Ins. Group v. Kassler, 227 Pa. Superior Ct. 47, 324 A.2d 521 (1974) (company alleged that the automobile in question was not “uninsured” as defined in the policy). See also Allstate Ins. Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972) (company claimed policy had expired six days prior to accident); Preferred Risk Mut. Ins. Co. v. Martin, 436 Pa. 374, 260 A.2d 804 (1970) (company claimed that foster child was not covered by policy) ; Allstate Ins. Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969) (claimant alleged not to be member of policyholder’s household); National Grange Mut. Ins. Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968) (company alleged that third party was not an “uninsured motorist” under the terms of the policy).
Here, however, both parties have argued on the basis that there was no uninsured motorist clause in the policy. It can therefore be presumed that there was none.1 This case is thus similar on its facts to Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 300 A.2d 61 (1973), although the procedure employed was different. Tn Johnson, the issue was also the validity of a waiver of uninsured motorist coverage. The claimant brought *84an action in equity to reform the policy (an indication that the policy did not contain an uninsured motorist clause); he won helow and the decree was affirmed on appeal, judgment being entered in favor of the claimant. Arbitrability is not mentioned in the opinion. The action in equity to reform the contract seems to be better procedure than a suit in assumpsit when the inclusion or exclusion of an uninsured motorist clause is in dispute.2 This technical point of pleading, however, is no reason to discard the just result reached by Judge Cercone, especially where appellant has not claimed that appellee has chosen the wrong form of action (even though its brief cites and discusses Johnson) and would be estopped to now. The defense of failure to state a claim upon which relief can be granted is waived if not raised sometime before the verdict. Dilliplmne v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) ; Pa. R C. P. No. 1032 (1).
It should be noted that if there were an arbitration clause in the policy, not even an explicit stipulation by both parties that they did not wish to submit the dispute to arbitration would properly take the dispute out of arbitration and into the courts. Allstate Ins. Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969) ; accord, United Services Auto. Ass’n Appeal [Webb v. United Services Automobile Ass’n], 227 Pa. Superior Ct. 508, 515 n.6, 323 A.2d 737, 740 n.6 (1974).
Johnson is distinguishable irom cases such as B. Axe Ent. v. N. E. Fire Ins. Co., 446 Pa. 119, 285 A.2d 462 (1971), and cases cited therein, which stand for the proposition that reformation can be and should be secured in an action at law where it is sought as an immediate prerequisite to obtaining a legal remedy. This rule is designed to prevent spurious equity jurisdiction, wherein a party sues for reformation and a decree that he is entitled to damages. Johnson tacitly recognizes that once it is decided whether the uninsured motorist coverage was waived there will probably be no need for a separate suit in assumpsit, which is the situation in the present case.