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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.
3
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,
4
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
5
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)
6
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.
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
2024 S • e S
4% <
NO. 1352 NO. • a 1352 . -,ty 6
5'
Appellee, Appellee, •· '
,.
..." ·<
c
vs. -. ,''
' J' -.. LJ e y
DEVIN WILLIAMS-FOXWORTH, DEVIN etal., WILLIAMS-FOXWORTH, et al.,
o
cn .J
,�,'
SUPERIOR COURT SUPERIOR COURT � '
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
2
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)
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 twotwo -
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
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.
7
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
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.