Pa. Super. (citing Temple 2001) (citing Temple -4- -4. University Hospital, University Hospital, Inc. Inc. v. v. Healthcare Healthcare Management Management Alternatives, Alternatives, Inc., Ie., 764 164 A.2d 587 (Pa. A.2d 587 (Pa. Super. Super. 2000)). 2000)
How later courts described this case
- Pa. Super. (citing Temple 2001) (citing Temple -4- -4. University Hospital, University Hospital, Inc. Inc. v. v. Healthcare Healthcare Management Management Alternatives, Alternatives, Inc., Ie., 764 164 A.2d 587 (Pa. A.2d 587 (Pa. Super. Super. 2000)). 2000)
Written by the judges who cited it.
The opinion
J-A30005-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JOOYEUN CHUNG : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVIN WILLIAMS-FOXWORTH, ZHI :
CHANG, EAN HOLDINGS, LLC, :
ENTERPRISE, TRAVELERS AND THE : No. 2849 EDA 2024
TRAVELERS HOME AND MARINE :
INSURANCE COMPANY :
:
:
APPEAL OF: TRAVELERS AND THE :
TRAVELERS HOME AND MARINE :
INSURANCE COMPANY :
Appeal from the Order Entered September 26, 2024
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 240601352
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, P.J.: FILED MARCH 12, 2026
Travelers and The Travelers Home and Marine Insurance Company
(collectively, “Travelers”) appeal from the order, entered in the Court of
Common Pleas of Philadelphia County, overruling their preliminary objection
in the form of a petition to compel arbitration 1 in a motor vehicle action
brought by Appellee, Jooyeun Chung. The trial court acknowledges that it
____________________________________________
1 This is an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(a)(8)
and 42 Pa.C.S.A. §§ 7320(a)(1) and 7342(a). See Goral v. Fox Ridge, Inc.,
683 A.2d 931, 933 n.1 (Pa. Super. 1996).
J-A30005-25
erred in overruling Travelers’ preliminary objection and we agree. We,
therefore, reverse on the basis of the opinion authored by the Honorable Sean
F. Kennedy and remand to the trial court for referral to arbitration.
The trial court set forth the relevant factual and procedural history of
this matter as follows:
On June 14, 2022, [Chung] was operating her 2016 BMW sedan
on the I-676 East off[-]ramp to I-95 in the City and County of
Philadelphia, Pennsylvania. At the same time, Defendant Zhi
Chang was operating a Toyota SUV—owned by Defendant EAN
Holdings, Inc.—directly behind [Chung’s] vehicle. At the same
time and place, Defendant [Devin] Williams-Foxworth was
operating his Dodge SUV directly behind Defendant Chang’s
vehicle. [] Williams-Foxworth allegedly operated his vehicle in a
negligent and careless manner, causing his Dodge SUV to crash
into the rear of [] Chang’s Toyota SUV, which then struck the rear
of [Chung’s] BMW sedan. After investigation, it was determined
that [] Williams-Foxworth was not insured at the time of the
collision. At the time of the collision, there was a policy of
automobile insurance [issued] to [Chung] held by [Travelers],
identified as Policy Number 991791829-101-1, which included
coverage for Uninsured Motorist [(“UM”)] and Underinsured
Motorist [(“UIM”)] benefits.
On June 12, 2024, [Chung] commenced the present action against
[] Williams-Foxworth, [] Chang, EAN Holdings, Inc., [and]
Travelers, [] asserting claims of negligence, vicarious liability,
breach of contract—[UM] benefits, and breach of contract—[UIM]
benefits. On July 22, 2024, [Travelers] filed preliminary
objections in the form of a petition to enforce an arbitration
agreement, or[,] alternatively[,] to strike Count V—Breach of
Contract—[UIM] from the complaint. [Travelers] averred a term
in the Travelers policy precluded [Chung] from litigating the
breach of contract claims before the trial court. On September
26, 2024, the [trial] court overruled the preliminary objections to
enforce the arbitration agreement and ordered [Travelers] to file
an answer to the complaint within twenty days. This timely appeal
followed.
-2-
J-A30005-25
Trial Court Opinion, 5/13/25, at 1-2 (citations to record and footnotes
omitted).
The trial court and Travelers have both complied with Pa.R.A.P. 1925.
Travelers raises the following claim for our review:
Whether, as its [o]pinion acknowledges, the trial court erred in
overruling Travelers’ preliminary objections in the form of a
petition to enforce a valid arbitration agreement because that
arbitration agreement specifically contemplated a dispute as to
the amount of damages arising from an accident with an
uninsured or underinsured motorist[.]
Brief of Appellant, at 4.
Our standard of review of a denial of a petition to compel arbitration is
limited to determining whether the trial court’s findings are supported by
substantial evidence and whether the trial court abused its discretion in
denying the petition. D & H Distrib. Co., Inc. v. Nat’l Union Fire Ins. Co.,
817 A.2d 1164, 1165-66 (Pa. Super. 2003).
Where a party to a civil action seeks to compel arbitration of that
action, a two-part test is employed to determine if arbitration is
required. First, the trial court must determine if a valid agreement
to arbitrate exists between the parties. [Midomo Co., Inc. v.
Presbyterian Hous. Dev. Co., 739 A.2d 180, 186 (Pa. Super.
1999).] Second, if the trial court determines that such an
agreement does exist, it must then determine if the dispute
involved is within the scope of the arbitration provision. Id. “The
scope of arbitration is determined by the intention of the parties
as ascertained in accordance with the rules governing contracts
generally.” Henning v. State Farm Mut. Automobile Ins. Co.,
795 A.2d 994, 996 (Pa. Super. 2002)[.]
Pittsburgh Logistics Sys., Inc. v. Professional Transp. & Logistics, Inc.,
803 A.2d 776, 779 (Pa. Super. 2002). Moreover,
-3-
J-A30005-25
[a]rbitration is a matter of contract and, as such, it is for the court
to determine whether an express agreement between the parties
to arbitrate exists. Because the construction and interpretation of
contracts is a question of law, the trial court’s conclusion as to
whether the parties have agreed to arbitrate is reviewable by this
Court.
Smith v. Cumberland Group, 687 A.2d 1167, 1171 (Pa. Super. 1997)
(citations omitted). The interpretation of a contract is a question of law and,
thus, our review is plenary. Riverview Carpet & Flooring, Inc. v.
Presbyterian SeniorCare, 299 A.3d 937, 983 (Pa. Super. 2023).
Here, the arbitration clause in question reads as follows:
ARBITRATION
A. If we and an ‘insured’ do not agree:
1. Whether the owner or operator of the ‘uninsured
motor vehicle’ or ‘underinsured motor vehicle’ is
legally liable to that ‘insured’ for ‘bodily injury’
sustained or caused by an accident; or
2. The amount of damages sustained by the ‘insured’;
either party may make a written demand for arbitration.
Travelers UM/UIM Motorists Endorsement—Pennsylvania, at 6 (bold in
original; italics/underline emphasis added).
Travelers argues, and the trial court agrees, that Chung’s policy
contained a valid agreement to arbitrate, asserting the agreement is “clear
and consistent with arbitration agreements that this Court and our Supreme
Court have found valid and enforceable.” Brief of Appellant, at 10; id. at 10-
12, discussing Brennan v. General Accident Fire & Life Assurance Corp.,
574 A.2d 580 (Pa. 1990); D & H Distributing Co., Inc. v. Nat’l Union Fire
-4-
J-A30005-25
Ins. Co., 817 A.2d 1164 (Pa. Super. 2003); and Cunningham v. Prudential
Property & Cas. Ins. Co., 489 A.2d 875 (Pa. Super. 1985). Moreover,
Travelers argues—and the trial court agrees—that the parties’ dispute falls
within the scope of the arbitration agreement, where the agreement provides
that either party may demand arbitration when Travelers and an insured “do
not agree” as to “[t]he amount of damages sustained by the ‘insured[,]’”
UM/UIM Motorists Endorsement—Pennsylvania, at 6 (Arbitration, A.2.)
(emphasis added), and Chung’s claims against Travelers “focus on the
amount allegedly owed for UM/UIM coverage[.]” Brief of Appellant, at 15
(emphasis added).
After our review of the certified record, the applicable law, and the briefs
of the parties, we conclude that the opinion authored by Judge Kennedy
correctly and thoroughly disposes of Travelers’ claim on appeal. See Trial
Court Opinion, 5/13/25, at 3-9. Specifically, we agree with Judge Kennedy
that: (1) the Travelers policy contained a valid arbitration agreement 2 where
____________________________________________
2 In her appellate brief, Chung relies almost exclusively on this Court’s en banc
decision in Chilutti v. Uber Technologies, Inc., 300 A.3d 430 (Pa. Super.
2023) (en banc), in which we addressed an Internet “browse-wrap” arbitration
agreement and concluded that it was invalid because the appellants took no
action “that unambiguously manifested their assent to be bound by the terms
and conditions” that included the agreement to arbitrate. Id. at 449. The
Pennsylvania Supreme Court granted allowance of appeal and, on January 21,
2026, issued an Opinion vacating our decision on the basis that we erred in
concluding that the order in question was appealable as a collateral order.
See id., --- A.3d ---, 2026 WL 156181 (Pa. 2026). Accordingly, the Supreme
Court remanded the case to this Court and directed us to quash the Chiluttis’
appeal. As such, the holding of Chilutti is no longer good law. In any event,
(Footnote Continued Next Page)
-5-
J-A30005-25
Chung availed herself of all other terms of the policy and her conduct
“expressed an acceptance based on what a reasonable person in the position
of the parties would be led to understand by such conduct under all of the
surrounding circumstances[,]” id. at 7-8; (2) the arbitration agreement was
not permissive and required Chung to submit to arbitration, id. at 8-9; and
(3) the terms of the arbitration agreement covered the parties’ dispute over
the amount of damages sustained by Chung. See id. at 9. Accordingly, we
reverse on the basis of Judge Kennedy’s opinion and direct the parties to
attach a copy of the opinion in the event of further proceedings.
Order reversed. Case remanded for referral to arbitration of Chung’s
breach of contract claims against Travelers. Jurisdiction relinquished.
Date: 3/12/2026
____________________________________________
Chung’s reliance on Chilutti was misplaced, where that case specifically
involved an Internet “browse-wrap” agreement and this matter involves a
written endorsement to an automobile insurance policy.
-6-
Circulated 02/13/2026
Circulated 02/13/2026 02:34 PM
02-34 PM
IN THE COURT
IN THE COURT OF
OF COMMON
COMMON PLEAS
PLEAS OF PHILADELPHIA COUNTY
OF PHILADELPHIA COUNTY
FIRST
FIRST JUDICIAL
JUDICIAL DISTRICT
DISTRICT OF
OF PENNSYLVANIA
PENNSYLVANIA
CIVIL TRIAL DIVISION
CIVIL TRIAL DIVISION
, ..
JOOYEUN CHUNG,
JOOYEUN CHUNG, JUNE TERM
JUNE TERM 2024
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SUPERIOR COURT
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Appellants.
Appellants. NO.
NO. 2849
2849 EDA
EDA 2024
2024
OPINION
OPINION
KENNEDY,
KENNEDY, J.
J May
May 13,
13, 2025
2025
Travelers, and
Travelers, and The
The Travelers
Travelers Home and Marine
Home and Marine Insurance
Insurance Company (hereinafter
Company (hereinafter
“Appellants”),
"Appellants"), appeal
appeal from
from the
the September
September 26,
26, 2024,
2024, order, entered in
order, entered in the
the Philadelphia
Philadelphia County
County
Court of
Court of Common
Common Pleas,
Pleas, overruling its preliminary
overruling its preliminary objection
objection to compel arbitration
to compel arbitration in
in defense of
defense of
the
the action
action brought against Appellants
brought against Appellants by
by Jooyeun
Jooyeun Chung (hereinafter “Appellee”).
Chung (hereinafter "Appellee"). The
The relevant
relevant
facts and procedural
facts and procedural history
history follow
follow below.
below.
FACTS
FACTS AND
AND PROCEDURAL
PROCEDURAL HISTORY
HISTORY
On June
On June 14,
14, 2022,
2022, Appellee
Appellee was
was operating
operating her 2016 BMW
her 2016 BMW sedan on the
sedan on the 1-676
1-676 East off¬
East of-
ramp
ramp to
to 1-95
1-95 in
in the City and
the City and County of Philadelphia,
County of Philadelphia, Pennsylvania.
Pennsylvania. See
See Appellee’s
Appellee's Complaint,
Complaint,
6/12/24,
6/12/24, at 3. At
at 3. At the
the same
same time,
time, Defendant
Defendant Zhi Chang was
Zhi Chang operating aa Toyota
was operating SUV -
Toyota SUV owned by
- owned by
Defendant EAN
Defendant EAN Holdings,
Holdings, Inc.
Inc. - directly behind
- directly behind Appellee’s vehicle. Id.
Appellee's vehicle. Id. at
at 4.
4. At
At the
the same
same time
time
and
and place,
place, Defendant
Defendant Williams-Foxworth
Williams-Foxworth was operating his
was operating his Dodge
Dodge SUV directly behind
SUV directly behind
Defendant
Defendant Chang’s
Chang's vehicle.
vehicle. Id.
Id. Defendant
Defendant Williams-Foxworth
Williams-Foxworth allegedly
allegedly operated
operated his
his vehicle
vehicle in
in aa
OPFLD-Chung Vs Williams-Foxworth Etal [SYC]
INTI.II 24060135200071
24060135200071
negligent
negligent and
and careless
careless manner,
manner, causing
causing his
his Dodge
Dodge SUV
SUV to crash into
to crash into the
the rear of Defendant
rear of Defendant
Chang’s Toyota
Chang's SUV, which
Toyota SUV, which then
then struck
struck the rear of
the rear of Appellee’s
Appellee's BMW sedan. Id.
BMW sedan. Id. After
After
investigation,
investigation, it
it was determined that
was determined that Defendant
Defendant Williams-Foxworth
Williams-Foxworth was
was not
not insured
insured at
at the
the time
time
of the collision.
of the collision. Id. At the
Id. At the time of the
time of the collision,
collision, there was aa policy
there was insurance to
automobile insurance
of automobile
policy of to
Appellee
Appellee held
held by
by Appellant The Travelers
Appellant The Travelers Home
Home and
and Marine
Marine Insurance,
Insurance, Co.,
Co., identified as Policy
identified as Policy
Number 991791829-101-1, which
Number 991791829-101-1, which included
included coverage for Uninsured
coverage for Uninsured Motorist
Motorist and
and Underinsured
Underinsured
Motorist
Motorist benefits.
benefits. See
See Appellant’s
Appellant's Preliminary Objections, 7/22/24,
Preliminary Objections, 7/22/24, at 2.
at 2.
On June
On June 12,
12, 2024, Appellee commenced
2024, Appellee commenced the present action
the present action against defendants Devin
against defendants Devin
Williams-Foxworth,
Wil iams-Foxworth, Zhi Chang, EAN
Zhi Chang, EAN Holdings,
Holdings, Inc.,
Ine., Travelers,
Travelers, and
and The Travelers Home
The Travelers Home and
and
Marine
Marine Insurance,
Insurance, Co., asserting claims
Co., asserting of negligence,
claims of negligence, vicarious
vicarious liability,
liability, breach
breach of
of contract
contract -
uninsured
uninsured motorist
motorist benefits, and breach
benefits, and of contract
breach of contract - underinsured motorist
- underinsured motorist benefits. On July
benefits. On July 22,
22,
2024, Appellants
2024, Appellants Travelers and The
Travelers and The Travelers
Travelers Home and Marine
Home and Marine Insurance, Co., filed
Insurance, Co., filed
preliminary objections in
preliminary objections in the
the form of aa petition
form of petition to enforce an
to enforce an arbitration
arbitration agreement, or
agreement, or
alternatively to
alternatively to strike
strike Count
Count V
V-- Breach
Breach of Contract —
of Contract - Underinsured
Underinsured Motorist
Motorist Benefits
Benefits from
from the
the
complaint. Appellants
complaint. averred aa term
Appellants averred in the
term in the Travelers
Travelers policy
policy precluded
precluded Appellee
Appellee from
from litigating
litigating
the breach
the breach of
of contract
contract claims
claims before
before the
the trial court. On
trial court. September 26,
On September 26, 2024,
2024, the lower court
the lower court
overruled the
overruled the preliminary
preliminary objections
objections to
to enforce
enforce the
the arbitration
arbitration agreement
agreement and
and ordered
ordered Appellants
Appellants
to
to file an answer
file an answer to
to the
the complaint
complaint within
within twenty
twenty days. This timely
days. This timely appeal
appeal followed.
followed.'1
MATTERS
MA TIERS COMPLAINED ON APPEAL
COMPLAINED ON APPEAL
1. The trial
1. The court erred
trial court erred in overruling Appellant’s
in overruling Appellant's preliminary
preliminary objections
objections in
in the
the form of aa
form of
petition
petition to
to enforce
enforce an
an arbitration
arbitration agreement.
agreement.2
The denial
*The of aa petition
denial of petition to
to compel
compel arbitration
arbitration is
is an
an interlocutory order appealable
interlocutory order appealable as of right
as of pursuant to
right pursuant to Pa.R.A.P.
Pa.R.A.P
31 1(a)(8) (appealable
311(a68) (appealable by statute) and
by statute) and 42 7320(a)(1) (providing
Pa.C.S. $§ 7320(a)I)
42 Pa.C.S. (providing that an appeal
that an appeal may
may be
be taken
taken from
from an
an
order denying
order denying aa motion
motion to compel arbitration).
to compel arbitration).
2The lower
The court did
lower court did not
not require
require Appellants
Appellants to
to file
file aa Concise
Concise Statement of Errors
Statement of Appeal pursuant
on Appeal
Complained on
Errors Complained pursuant to
to
Pa.R.A.P. 1925(b).
Pa.R.A.P 1925(b)
-2-
-2-
DISCUSSION
DISCUSSION
Travelers, and The
Travelers, and The Travelers
Travelers Home and Marine
Home and Marine Insurance Company (hereinafter
Insurance Company (hereinafter
“Appellants”), appeal
"Appellants"), appeal from
from the order overruling
the order overruling its
its preliminary objections to
preliminary objections compel arbitration
to compel arbitration
in defense of
in defense of the
the action
action brought against Appellants
brought against Appellants by Appellee. The
by Appellee. court agrees
lower court
The lower agrees that
that it
it
erred in
erred in overruling
overruling the
the preliminary objections to
preliminary objections to compel arbitration. Initially,
compel arbitration. Initially, it
it is
is axiomatic
axiomatic that:
that:
[The] standard
[The] standard ofof review
review of of aa claim
claim that
that the
the trial
trial court improperly overruled
court improperly overruled
preliminary
preliminary objections
objections in in the
the nature
nature ofof aa petition
petition to
to compel arbitration is
compel arbitration clear.
is clear.
[Appellate] review
[Appellate] review is limited to
is limited determining whether
to determining whether the
the trial
trial court’s
court's findings
findings areare
supported by
supported by substantial
substantial evidence
evidence andand whether
whether the the trial court abused
trial court abused its discretion
its discretion
in
in denying
denying the
the petition.
petition.
In
In doing so, [reviewing
doing so, [reviewing courts]
courts] employ
employ aa two-part
two-part test
test to determine whether
to determine whether the
the
trial
trial court
court should
should have compelled arbitration.
have compelled arbitration. First,
First, [the
[the appellate court]
appellate court]
examine[s]
examine[s] whether
whether aa valid
valid agreement
agreement to arbitrate exists.
to arbitrate exists. Second,
Second, [the
[the reviewing
reviewing
court]
court] must
must determine
determine whether
whether the dispute is
the dispute is within
within the
the scope
scope of
of the
the agreement.
agreement.
Whether
Whether aa claim
claim is
is within
within the
the scope
scope of
of an
an arbitration
arbitration provision
provision is
is aa matter
matter of
of
contract,
contract, and as with
and as with all
all questions
questions of
of law, our review
law, our review of
of the
the trial
trial court’s
court's
conclusion
conclusion is
is plenary.
plenary.
Further, [the reviewing
Further, [the reviewing courts]
courts] are
are guided
guided by
by the
the following principles:
following principles:
(1) arbitration agreements
(l) arbitration are to
agreements are to be
be strictly construed and
strictly construed and not
not extended
extended byby
implication; and (2)
implication; and (2) when
when parties
parties have
have agreed
agreed to
to arbitrate
arbitrate in
in aa clear
clear and
and
unmistakable
unmistakable manner,
manner, every
every reasonable
reasonable effort should be
effort should be made
made to to favor
favor the
the
agreement
agreement unless
unless it may be
it may said with
be said with positive assurance that
positive assurance that the
the arbitration clause
arbitration clause
involved
involved is
is not
not susceptible
susceptible to an interpretation
to an interpretation that covers the
that covers the asserted
asserted
dispute.
dispute.
Fineman, Krekstein
Fineman, Krekstein &
& Harris,
Harris, P.C., 278 A.3d
P.C., 278 A.3d 385, 389 (Pa.
385, 389 Super. 2022).
(Pa. Super. of this
light of
In light
2022). In this two-
two-
part inquiry,
part inquiry, the
the lower
lower court
court was
was first
first required
required to determine whether
to determine whether aa valid
valid arbitration
arbitration
agreement existed between
agreement existed between the
the parties,
parties, and
and then
then whether
whether it
it covered
covered the
the dispute.
dispute. Id. “Whether an
Id,Whether an
agreement
agreement to arbitrate disputes
to arbitrate disputes exists
exists is
is aa question
question of
of law.”
law." Neuhard
Newhard v.
• Travelers
Travelers Ins.,
Ins., Co., 831
Co., 831
-3-
- 3-
A.2d 602, 604
A.2d 602, 604 (Pa.
(Pa. Super.
Super. 2003).
2003). “When
"When we
we review
review questions of law,
questions of law, our standard of
our standard of review
review is
is
limited to
limited to determining
determining whether
whether the
the trial
trial court
court committed an error
committed an error of
of law.”
law." Id.
Id
To thoroughly
To thoroughly analyze
analyze this
this argument,
argument, the
the lower
lower court
court begins
begins with
with the
the interplay
interplay of
of
arbitration agreements
arbitration agreements and
and the
the constitutional
constitutional right
right to
to aa jury
jury trial
trial (a
(a right
right that
that has
has not
not been
been
amended or
amended or modified
modified for
for hundreds of years).
hundreds of years). The
The lower
lower court recognizes the
court recognizes the following:
following:
Pennsylvania
Pennsylvania has has aa well-established
well-established public
public policy
policy that
that favors
favors arbitration, and this
arbitration, and this
policy
policy aligns
aligns with
with the
the federal approach expressed
federal approach expressed inin the
the Federal
Federal Arbitration
Arbitration Act
Act
[("FAA")]. [T]he
[(“FAA”)]. [T]he fundamental
fundamental purpose of the
purpose of [FAA] is
the [FAA] is to relieve the
to relieve the parties
parties from
from
expensive litigation
expensive and to
litigation and help ease
to help ease the
the current congestion of
current congestion of court
court calendars.
calendars. Its
Its
passage
passage was
was a
a congressional
congressional declaration
declaration of
of a
a liberal
liberal federal
federal policy
policy favoring
favoring
arbitration agreements.
arbitration agreements.
This policy,
This policy, however,
however, was was not
not intended
intended toto render
render arbitration agreements more
arbitration agreements more
enforceable than
enforceable than other contracts, and
other contracts, and the
the FAA
FAA hadhad not
not been
been designed
designed to
to preempt
preempt
all state
all law related
state law related toto arbitration.
arbitration. Rather, when addressing
Rather, when addressing the
the specific issue of
specific issue of
whether there
whether there isis aa valid agreement to
valid agreement to arbitrate,
arbitrate, courts
courts generally
generally should
should apply
apply
ordinary state-law
ordinary state-law principles
principles that
that govern
govern the
the formation
formation of contracts, but
of contracts, but in
in doing
doing
so, must
so, must give
give due
due regard
regard to
to the
the federal
federal policy favoring arbitration.
policy favoring arbitration.
Chilutti
Chilutti v. Uber Technologies,
• Uber Technologies, Inc., 300 A.3d
Inc., 300 A.3d 430,
430, 441 (Pa. Super.
441 (Pa. Super. 2023)
2023) (en banc) (citing
(en bane) (citing
Pisano
Pisano v.
• Extendicare
Extendicare Homes,
Homes, Inc.,
Inc., 77
77 A.3d
A.3d 651, 660-661 (Pa.
651, 660-661 (Pa. Super.
Super. 2013)).
2013)).
Under
Under Pennsylvania
Pennsylvania law,
law, the
the elements
elements of
of an enforceable contract
an enforceable contract are
are an
an “offer,
"offer,
acceptance, consideration, or
acceptance, consideration, mutual meeting
or mutual of the
meeting of the minds.”
minds." Schreiber
Schreiber v. Olan Mills,
v. Olan Mills, 621
627 A.2d
A.2d
806,
806, 808
808 (1993)
(1993) (citation
(citation and quotation marks
and quotation omitted). "[There
marks omitted), “[T]here must
must be
be aa meeting
meeting of
of the
the
minds; the
minds; the very
very essence of an
essence of agreement is
an agreement is that
that the parties mutually
the parties assent to
mutually assent to the same thing.”
the same thing." Id.
Id
(some punctuation
(some punctuation omitted).
omitted). “Whether
"Whether particular
particular conduct expresses an
conduct expresses an offer
offer and acceptance must
and acceptance must
be determined on
be determined on the
the basis of what
basis of what aa reasonable
reasonable person
person in the position
in the the parties
of the
position of parties would
would be
be led
led
to
to understand
understand by such conduct
by such conduct under
under all of the
all of the surrounding circumstances.” Mountain
surrounding circumstances." Mountain
Properties, Inc.
Properties, Inc. v.
v. Tyler
Tyler Hill
Hill Realty Corp., 161
Realty Corp., A.2d 1096,
767 A.2d 1096, 1101
1101 (Pa. Super. 2001)
(Pa. Super. (citing Temple
2001) (citing Temple
-4-
-4.
University Hospital,
University Hospital, Inc.
Inc. v.
v. Healthcare
Healthcare Management
Management Alternatives,
Alternatives, Inc.,
Ie., 764
164 A.2d 587 (Pa.
A.2d 587 (Pa. Super.
Super.
2000)).
2000))
A.
A. The
The Travelers
Travelers Insurance
Insurance Policy Arbitration Agreement
Policy Arbitration Agreement
At
At the
the time of the
time of subject collision,
the subject collision, Appellee
Appellee held an automobile
held an automobile insurance
insurance policy
policy
through
through Appellant
Appellant The
The Travelers
Travelers Home
Home and
and Marine
Marine Insurance Co., identified
Insurance Co., identified as
as Policy
Policy Number
Number
991791829-101-1 (hereinafter
991791829-101-1 “Travelers Policy”)
(hereinafter "Travelers Policy"),, which
which included
included coverage
coverage for
for Uninsured
Uninsured
Motorist and
Motorist and Underinsured Motorist benefits.
Underinsured Motorist benefits. See
See Appellant’s
Appellant's Preliminary
Preliminary Objections, 7/22/24,
Objections, 7/22/24,
at Ex.
at Ex. A.
A. Appellants aver the
Appellants aver the lower
lower court
court erred when it
erred when overruled the
it overruled the preliminary
preliminary objections
objections to
to
compel
compel arbitration.
arbitration. The
The lower
lower court
court is
is now constrained to
now constrained to agree.
agree.
For its
For its part,
part, the
the valid
valid Travelers
Travelers Policy
Policy at-issue in the
at-issue in the present
present case
case was
was effective
effective at
at the
the
time of
time of the collision. The
the collision. The Travelers
Travelers Policy
Policy contained an 8-page
contained an 8-page “Uninsured/Underinsured
"Uninsured/Underinsured
Motorists
Motorists Endorsement - Pennsylvania.”
Endorsement -- Pennsylvania." Appellant’s Preliminary Objections,
Appellant's Preliminary Objections, 7/22/24,
7/22/24, at
at Ex.
Ex. A.
A.
The Travelers
The Travelers Policy contained the
Policy contained following language
the following language regarding arbitration:
regarding arbitration;
Arbitration
Arbitration
A.
A. If
If we
we and
and an "insured" do
an "insured" do not agree:
not agree:
1
I.. Whether
Whether the
the owner
owner or
or operator
operator of
of the "uninsured motor
the "uninsured motor vehicle"
vehicle" or
or
"underinsured motor
"underinsured motor vehicle"
vehicle" is
is legally
legally liable
liable to
to that
that "insured"
"insured" for
for "bodily
"bodily
injury" sustained and
injury" sustained and caused
caused by
by an
an accident, or
accident, or
2.
2. The amount of
The amount of the
the damages
damages sustained
sustained byby the "insured", either
the "insured", either party
party may
may
make
make aa written demand for
written demand arbitration.
for arbitration.
*
• *
• *
•
B.
B. In
In the event that
the event that aa valid
valid written
written demand
demand for arbitration is
for arbitration is made, each party
made, each will
party will
select an
select an arbitrator[.]
arbitrator[.J
See Appellants’
See Appellants' Preliminary
Preliminary Objections,
Objections, 7/22/24,
7/22/24, at
at Exhibit
Exhibit A.
A.
-5-
• •
In its
In its Answer
Answer to
to Appellants’
Appellants' preliminary objections to
preliminary objections to compel
compel arbitration,
arbitration, Appellee
Appellee
invited
invited the
the lower
lower court
court to adopt aa broad
to adopt broad reading of the
reading of Superior Court's
the Superior Court’s holding
holding in Chilutti v.v
in Chiluti
Uber Technologies,
Uber Technologies, Inc., 300 A.3d
Ince., 300 A.3d 430,
430, 441 (Pa. Super.
441 (Pa. Super. 2023) (en banc),
2023) (en banc), aa case
case that addressed
that addressed
the
the terms
terms and
and conditions of aa plaintiff's
conditions of plaintiffs assenting
assenting to
to arbitration
arbitration through
through “browse-wrap”
"browse-wrap"
agreements and the
agreements and the plaintiffs
plaintiffs remained unaware that
remained unaware contractual terms
that contractual terms were
were even
even offered,
offered, much
much
less that the
less that continued use
the continued use of
of the
the website would be
website would be found
found to constitute manifest
to constitute acceptance of
manifest acceptance of
those terms.
those terms. See
See Chilutti,
Chilutti, 300
300 A.3d
A.3d at
at 446-447. This is
446.447. This an invitation
is an invitation the
the lower court must
lower court must now
now
reject.
reject
The issues
The addressed by
issues addressed by the
the Chilutti
Chilunti Court
Court and
and the case sub
the case sub judice
judice are inherently distinct.
are inherently distinct.
Indeed, on August
Indeed, on August 27,
27, 2024,
2024, the Supreme Court
the Supreme Court of
of Pennsylvania
Pennsylvania granted
granted the
the Petition
Petition for
for
Allowance of Appeal
Allowance of Appeal in Chilutti, 325
in Chilutti, 325 A.3d
A.3d 446
446 (Pa. 2024), from
(Pa. 2024), from the
the decision of the
decision of Superior
the Superior
Court; one of
Court; one of the questions to
the questions to be addressed is
be addressed is whether as aa “matter
whether as of Pennsylvania
"matter of law, should
Pennsylvania law, should
online arbitration
online arbitration agreements
agreements be
be enforced
enforced under
under the same rules
the same rules applicable
applicable to
to contracts
contracts
differently." Id. The
differently.” Id. The lower
lower court is not
court is not required
required to address this
to address this question.
question. Instead,
Instead, it is tasked
it is tasked only
only
determining whether,
determining whether, under current Pennsylvania
under current Pennsylvania law,
law, aa valid
valid arbitration agreement existed
arbitration agreement existed
between the
between the parties, and then
parties, and then whether
whether it
it covered
covered the
the dispute.
dispute. See
See Fineman,
Fineman, Krekstein & Harris,
KKrekstein & Harris,
P.C., 278 A.3d
P.C,278 A.34 385, 389 (Pa.
385, 389 (Pa. Super. 2022).
Super. 2022).
B.
B. The Travelers
The Traveler Policy
Policy Contained a Valid
Valid Arbitration
Arbitration Agreement
Agreement
The lower
The lower court
court determined
determined that
that it
it erred
erred in overruling Appellants’
in overruling Appellants' preliminary
preliminary objections
objections
to
to compel
compel enforcement
enforcement of an arbitration
of an arbitration agreement.
agreement. Appellee
Appellee fruitlessly
fruitlessly expends
expends much
much energy
energy
analogizing the
analogizing the present
present case
case to
to the Superior Court's
the Superior Court’s decision
decision in Chilutti v.
in Chilutti Uber Technologies,
v. Uber Technologies,
Inc., 300
Inc., 300 A.3d
A.3d 430 (Pa. Super.
430 (Pa. Super. 2023)
2023) (en banc). They
(en bane). are inapposite.
They are inapposite. As
As Appellant
Appellant noted:
noted:
-6-
-6.
Tn Chilutti, plaintiffs
In Chiluti, plaintiffs purportedly
purportedly entered
entered into
into anan Arbitration
Arbitration Agreement
Agreement via via aa set
set
of hyperlinked
of “terms and
hyperlinked "terms and conditions”
conditions" onon aa website or smartphone
website or application on
smartphone application on
which
which they
they never clicked, viewed
never clicked, viewed or or read.
read. In Chilutti the
In Chilutti defendant, Uber,
the defendant, Uber, moved
moved
to compel Arbitration,
to compel Arbitration, asserting
asserting that the plaintiffs’
that the conduct on
plaintiffs' conduct on the
the company’s
company's
website and application—when
website and application-when they they registered
registered forfor the
the ride-share
ride-share service—
service--
signified
signified that they agreed
that they agreed toto be
be bound
bound by by the
the mandatory
mandatory arbitration
arbitration provisions
provisions
found
found inin the
the hyperlinked
hyperlinked terms and conditions.
terms and conditions. In In Chilutti,
Chilutti, the
the terms
terms and
and
conditions
conditions at at issue
issue could only be
could only be reached
reached viavia aa hyperlink,
hyperlink, which
which then
then would
would have
have
re-directed
re-directed the
the user
user to
to aa separate
separate website
website that
that would
would have displayed aa 12-page
have displayed L2-page
document. The
document. The Court
Court also
also noted
noted that
that the
the hyperlinks
hyperlinks were
were smaller
smaller than
than the
the other
other
wording
wording on on the
the webpage
webpage [to[to create
create the
the account
account forfor Uber]
Uber] and in aa blue-colored
and in blue-colored
font
font that
that was
was not underlined.
not underlined.
The Court
The Court in Chilutti found
in Chilutti found that,
that, based on the
based on the nature
nature ofof Uber’s
Uber's two
two interfaces,
interfaces, the
the
contracts qualify
contracts qualify asas "browse-wrap
“browse-wrap agreements”
agreements" because
because both
both appellants
appellants were
were ‘left
'left
unaware
unaware that contractual terms
that contractual terms were
were even
even offered,
offered, much
much less
less that continued use
that continued of
use of
the
the website
website [would]
[would] be deemed to
be deemed manifest acceptance
to manifest acceptance ofof those
those terms’.”
terms'." Chilutti
Chilutti
at 446-447
at 446-447 (citing
(citing Berman
Berman v. v. Freedom
Freedom Fin. Network,
Network, LLC.,
LLC., 3030 F.4th
F 4th 849849 ([]
([] 9th
9th
Cir. 2022)).
Cir. 2022)). In
In making
making itsits determination
determination thatthat there
there was
was aa lack
lack ofof aa valid agreement
valid agreement
to arbitrate
to arbitrate in Chilutti, the Court
in Chiluti, Court concluded
concluded that
that Uber’s
Uber's website
website and application
and application
did
did not
not provide
provide reasonably
reasonably conspicuous
conspicuous notice of the
notice of the terms
terms toto which
which the Chiluttis
the Chiluttis
were bound.
were The Court
bound. The Court also
also noted
noted that
that the
the Chiluttis did not
Chiluttis did click on
not click access the
or access
on or the
terms and conditions
terms and conditions [via
[via the
the hyperlinks]
hyperlinks] before
before their
their registration
registration process
process was
was
completed.
completed.
Appellants’
Appellants' Reply Brief Supporting
Reply Brief Supporting Preliminary Objections, 8/21/24,
Preliminary Objections, 8/21/24, at
at 3.
3. Here,
Here, there
there is
is no
no
compelling argument
compelling argument to conclude that
to conclude that the
the reasoning
reasoning advanced
advanced by
by Appellee
Appellee that
that the
the Chilutti
Chilutti
Court’s holding
Court's applies to
holding applies case at
the case
to the at bar.
bar. Given
Given none of the
none of the precepts
precepts Chilutti exist within
Chilutti exist the
within the
current case
current case (i.e.,
(i.e., aa written agreement versus
written agreement versus aa “browse-wrap” agreement), the
"browse-wrap"agreement), the lower
lower court
court is
is
forced
forced to
to conclude
conclude that
that aa valid
valid arbitration agreement existed
arbitration agreement existed between
between the
the parties.
parties. Appellee claims
Appellee claims
that
that the arbitration clause
the arbitration clause was
was something
something to
to which
which it
it never assented, thereby
never assented, extinguishing
thereby extinguishing
Appellants’
Appellants' claims.
claims. However,
However, the
the lower court must
lower court must observe
observe that
that Appellee
Appellee availed
availed themselves
themselves to
to
all other terms
all other terms under
under the
the Travelers
Travelers Policy.
Policy. There was, in
There was, in fact,
fact, aa meeting
meeting of
of the
the minds
minds and
and
Appellee’s conduct expressed
Appellee's conduct an acceptance
expressed an acceptance based
based on
on what
what aa reasonable
reasonable person
person in
in the position of
the position of
the parties would
the parties would be
be led
led to
to understand by such
understand by such conduct
conduct under all of
under all of the
the surrounding
surrounding
-7-
circumstances. See
circumstances. Schreiber •
See Schreiber v. Olan
Olan Mills, 627 A.2d
Mills, 627 A.2d 806,
806, 808
808 (1993).
(1993). That
That Appellee
Appellee now takes
now takes
umbrage with the
umbrage with the terms
terms of
of the
the arbitration agreement are
arbitration agreement are of
of no
no moment.
moment.
i.i. The Travelers Policy
The
Travelers Arbitration Agreement
Policy Arbitration Agreement was
was not Permissive
not Permissive
Appellants correctly emphasize
Appellants correctly emphasize the
the Superior Court’s holding
Superior Court's holding in
in D
D&&H
H Distributing Co.,
Distributing Co.,
Inc. v.
Inc. v. National Union Fire
National Union Insurance, Co.,
Fire Insurance, Co., 817
817 A.2d
A.2d 1164 (Pa, Super.
1164 (Pa, Super, 2003).
2003). In
In D&H, the
D&H, the
Superior Court
Superior Court considered
considered whether
whether an
an arbitration
arbitration clause
clause phrased
phrased as
as “Should
"Should any
any dispute
dispute arise
arise
between
between the
the Insured
Insured and
and the
the Company
Company under
under this
this policy,
policy, either
either may
may make
make written
written demand
demand upon
upon
the
the other
other to
to submit
submit the dispute for
the dispute arbitration,” qualified
for arbitration," as permissive.
qualified as permissive. D
D&& HDistributing
H Distributing Co.,
Co.,
Inc.
Ine. v.
• National
National Union
Union Fire
Fire Insurance, Co., 817
Insurance, Co., 817 A.2d
A.2d 1164,
1164, 1166 (Pa. Super.
1166 (Pa. Super. 2003) (emphasis
2003) (emphasis
added). The
added). The Superior
Superior Court
Court held
held that it was
that it was not
not permissive and any
permissive and any alternative “"would render
alternative ""would render
the arbitration provision
the arbitration provision meaningless
meaningless for all practical
for all practical purposes,
purposes, since
since the
the parties
parties could always
could always
voluntarily
voluntarily submit
submit to
to arbitration."
arbitration." Id.
Id. at
at 1167. The
1167. The D&H Court further
D&H Court further concluded:
concluded:
[W]e generally recognize
[WJegenerally recognize that
that the
the language
language permitting
permitting either
either party
party to to demand
demand
arbitration operates to
arbitration operates to require
require the
the parties
parties toto submit
submit toto arbitration, as it
arbitration, as it clearly
clearly
demonstrates that
demonstrates that the
the parties
parties contemplated
contemplated the the use of arbitration
use of arbitration proceedings
proceedings as as
the
the forum
forum forfor resolution
resolution of of disputes.
disputes. TheThe provision
provision here here atat issue
issue clearly
clearly
evidences
evidences that that thethe parties
parties entered
entered into
into anan agreement
agreement to to arbitrate disputes at
arbitrate disputes at
either
either partv’s choosing. There
partv's choosing. There is is no
no good
good reason
reason forfor including
including an an arbitration
arbitration
provision
provision if if it can be
it can be defeated
defeated by by aa unilateral
unilateral refusal
refusal to to arbitrate.
arbitrate. ... ... We
We do
do
not read the language
not read the language used as requiring
used as requiring a race to the courthouse to preclude
a race to the courthouse to preclude notice
notice
of
of aa demand
demand to to arbitrate.
arbitrate. Rather,
Rather, wewe agree
agree with
with the
the federal court's interpretation
federal court's interpretation
that
that the
the use
use ofof the
the word "may" merely
word "may" merely reflects
reflects aa party's
party's ability
ability to
to forego
forego or or
abandon their
abandon claim. In
their claim. In the
the absence
absence of of abandonment
abandonment or or settlement,
settlement, aa claim claim
that
that falls
falls within
within the the scope
scope of of the contract must
the contract must be be arbitrated
arbitrated upon demand.
upon demand.
Id.
Id. at
at 1169-70.
1169-70.
Here,
Here, Appellee entered into
Appellee entered into aa contract
contract -
- the Travelers Policy
the Travelers - that
Policy - that had
had substantial
substantial
similarities to
similarities to the
the arbitration
arbitration clause
clause at
at issue in D
issue in D&& HDistributing Co., Inc.
H Distributing Co., Inc. v. National Union
v. National Union
Fire Insurance,
Insurance, Co., 817 A.2d
Co., 817 A.2d 1164 (Pa. Super,
1164 (Pa. Super. 20003).
20003). The
The Travelers
Travelers Policy
Policy contained
contained the
the
language
language “either
"either party
party may
may make
make aa written
written demand
demand for
for arbitration”
arbitration" if
if there
there is
is aa "dispute
“dispute
-8-
-8.
regarding
regarding the amount of
the amount of the damages sustained
the damages sustained by
by the
the ‘insured.’”
'insured."" See
See Appellants’
Appellants' Preliminary
Preliminary
Objections, 7/22/24,
Objections, 7/22/24, at
at Exhibit
Exhibit A
A (emphasis
(emphasis added).
added). There
There is
is no evidence of
no evidence abandonment by
of abandonment by
Appellee, nor
Appellee, nor has
has there
there been
been aa settlement. Therefore, the
settlement. Therefore, Travelers Policy
the Travelers was not
Policy was not permissive
permissive
and required
and Appellee to
required Appellee submit to
to submit arbitration.
to arbitration.
C.
C The Travelers Policy
The Travelers Covered the
Policy Covered the Dispute
Dispute
Finally,
Finally, the
the lower court concluded
lower court concluded that
that the
the arbitration
arbitration agreement
agreement contained
contained in
in the
the
Travelers Policy was
Travelers Policy was covered
covered by
by the dispute. The
the dispute. The language of the
language of agreement is
the agreement is clear:
clear; when
when there
there
is aa dispute
is dispute concerning
concerning “the
"the amount
amount of
of the damages sustained
the damages sustained by
by the "insured", either
the "insured", either party
party may
may
make
make aa written
written demand for arbitration."
demand for arbitration.” See
See Appellants’
Appellants' Preliminary
Preliminary Objections, 7/22/24, at
Objections, 7/22/24, at
Exhibit A
Exhibit A (emphasis
(emphasis added).
added). Appellee
Appellee brought claims against
brought claims against Appellants
Appellants in
in the
the nature of breach
nature of breach
of contract
of contract for both underinsured
for both underinsured and
and uninsured
uninsured motorist
motorist benefits.
benefits. Given
Given the
the clear
clear language
language of
of
the Travelers
the Travelers Policy
Policy and
and Appellee’s
Appellee's intent
intent to
to recover
recover based
based upon
upon aa dispute
dispute in
in the
the amount
amount of
of
damages, the
damages, Travelers Policy
the Travelers covered the
Policy covered the dispute.
dispute.
CONCLUSION
CONCLUSION
Travelers, and
Travelers, The Travelers
and The Travelers Home and Marine
Home and Marine Insurance Company (hereinafter
Insurance Company (hereinafter
“Appellants”),
"Appellants"), appeal
appeal from
from the
the September
September 26,
26, 2024,
2024, order, entered in
order, entered in the
the Philadelphia
Philadelphia County
County
Court of
Court of Common
Common Pleas, overruling its
Pleas, overruling its preliminary objection to
preliminary objection to compel arbitration in
compel arbitration in defense of
defense of
the
the action
action brought against Appellants.
brought against Appellants. The
The lower
lower court erred when
court erred when it overruled the
it overruled the preliminary
preliminary
objections. For the reasons outlined above, the lower court respectfully requests the Superior
Court reverse the order below
BY THE COURT:
SEAN F. KENNEDY,
.9.