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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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 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 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.