.

Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

RECOGNITION
Congratulations to Brigid Alford (Harrisburg, PA) on her selection to the Central Penn Business Journal’s 2023 Power List for Law! The honorees are some of the Central Pennsylvania region’s most significant, influential, and respected leaders in their fields, as chosen by the CPBJ’s editorial leadership team and readers. 

Mike Turner (Philadelphia, PA) was recently elected a Fellow of the International Academy of Trial Lawyers.

Clients Name Marshall Dennehey to the BTI Client Service 100
Marshall Dennehey has earned a coveted spot in the BTI Client Service 100 report, as recommended by corporate counsel. The report is based on research with more than 24,000 buyers of professional services, who rank firms according to performance of 17 activities that drive superior client relationships. Among the report’s findings, Marshall Dennehey was also one of only 50 law firms named to the BTI Midsize Client Service Masters list.

The survey is one of the leading measures of its kind. Rankings are purely research-driven and are not subject to law firm submissions, self-referrals, suggestions, or payments.

“At Marshall Dennehey, superior client service is our number one priority and it is gratifying that BTI’s data reflects that commitment,” said G. Mark Thompson, our firm’s president and CEO. “With every case and file that is entrusted to us, we seek to partner with our clients to understand their needs, effectively resolve their litigation, and exceed expectations. We are grateful to them for this recognition.” 

For more information about the report, please visit https://bticonsulting.com/bti-client-service-a-team. 

Marshall Dennehey Announces 2023 New Jersey Super Lawyers and Rising Stars
Eight attorneys from Marshall Dennehey’s Mount Laurel and Roseland, New Jersey offices have been selected to the 2023 edition of New Jersey Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Each year, no more than five percent of the lawyers in the state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. 

2023 New Jersey Super Lawyer
•    Robert T. Evers (Roseland, NJ): Personal Injury: Medical Malpractice Defense
2023 New Jersey Super Lawyer Rising Stars 
•    Ariel C. Brownstein (Mount Laurel, NJ): Insurance Coverage
•    Christopher J. DiCicco (Mount Laurel, NJ): Transportation/Maritime Litigation. 
•    Ryan Thomas Gannon (Roseland, NJ): Personal Injury, Medical Malpractice Defense. 
•    Heather M. LaBombardi (Roseland, NJ): Medical Malpractice Defense. 
•    Paul W. Lanza (Roseland, NJ): Personal Injury, General, Defense. 
•    Brian A. Rice (Mount Laurel, NJ): Personal Injury, Medical Malpractice Defense. 
•    Brielle K. Winkler (Mount Laurel, NJ): Insurance Coverage. 

 

OTHER NEWS
Jason Banonis (King of Prussia, PA), Pennsylvania Defense Institute’s past president, was recently appointed to Defense Research Institute’s State Legislation and Rules Task Force.

Stephanie Ransom, CLM, assistant office manager of our NYC and Roseland, NJ, offices, has been appointed Vice Chair of the Certification Committee at the Association of Legal Administrators (ALA). Stephanie was appointed to the committee last year and continues to rise in leadership in the national organization. 

Michael Salvati (Philadelphia, PA) has been selected to serve a five-year term on the Civil Jury Instructions Subcommittee of the Pennsylvania Supreme Court. The subcommittee is charged with maintaining, overseeing and updating the Commonwealth of Pennsylvania’s standard civil jury instructions as facilitated and published by the Pennsylvania Bar Institute. 

 

PUBLISHED ARTICLES
Oner Kiziltan (Fort Lauderdale, FL) authored the article, “Proving Insurance Fraud: Is Metadata the Missing Piece of the SIU Puzzle?” in the March 24, 2023, edition of Insurance Journal. You can read his article here.

Jennifer Meyers’ (Westchester, NJ) article “When Is It Too Late to Change Your Theory of the Case?” was published in the March 10, 2023, issue of The New York Law Journal. You can read her article here.

Michael Salvati (Philadelphia, PA) published the article “A Two-Pronged Test Becomes One - Why the Superior Court’s Venue Decision in Hangey Departs from Decades of Prior Precedent,” appearing in the January/February 2023 issue of The Pennsylvania Lawyer. The article attracted the attention of Law360, who republished it (with permission), under the title, “Pa. Supreme Court Must Defend Established Venue Standard.” You can read his article here.  

Ray Michaud’s (Mount Laure, NJ) article “Develop the Helpful Habits to Ward Off Litigation” was published in the Spring 2023 issue of Pennsylvania CPA Journal, the publication of the Pennsylvania Institute of Certified Public Accountants. You can read Ray’s article here.  

Lauren Purcell and Patrick Reilly (Pittsburgh, PA) teamed up to author “Protecting Your Bar from Claims in the Wake of ‘Mortimer’,” which was published on February 15, 2023, in The Legal Intelligencer. You can read their article here.  

Dana Gittleman’s (Philadelphia, PA) article “4 Terms to Avoid When Advertising Your Insurance Agency,” was published on IndependentAgent.com on February 9, 2023. Click here to read her article.  

Steven Christman’s and Fabrice Michel’s (New York, NY) article “Prejudgment Interest Accruing from Date of Accident: What Will This Mean for Resident, Courts?” was published in the April 13, 2023, issue of New York Law Journal. You can read their article here. 

Hunter McMullin’s (Philadelphia, PA) article “Potential Clarity on Pennsylvania’s Murky Products Liability Landscape,” was published in the April 6, 2023, edition of The Legal Intelligencer. You can read his article here.  

Michele Punturi’s (Philadelphia, PA) article “Why Contest Mental Health Claims in Workers’ Comp When You Can Prevent Them to Begin With?” was published in the March 28, 2023, issue of Risk & Insurance. You can read Michele’s article here.

Paul Laughlin (King of Prussia, PA) authored the article “Choosing a Mediator for Your Medical Malpractice Case: One Size Does Not Fit All,” appearing in The Legal Intelligencer’s Medical Malpractice Supplement, published on March 28, 2023. You can read the article here.  

William Murphy’s (Roseland, NJ) article “Under the Influence of the Intoxication Defense: Differing State Law Can Affect Workers’ Compensation Claims for Workplace Injuries” was published in the April 2023 edition of CLM Magazine. You can read his article here. 

Greg Graham and Carly Edman (Pittsburgh, PA) authored the article “Retooling the Client Engagement Letter to Minimize Liability Claim Exposure,” appearing in the March 23, 2023, edition of PLUS Blog, the blog of the Professional Liability Underwriting Society. You may read the article at this link.  

Josh Byrne and Alesia Sulock (Philadelphia, PA) authored the article, “When Disciplinary Counsel Knocks on Your Door, How Do You Respond?” in the March 20, 2023, issue of The Legal Intelligencer. Read the article here.  

“Top Ten Ways an Insurance Broker Can Avoid Liability,” by Estelle Kokales McGrath (Pittsburgh, PA) was published by the National Association of Professional Agents on March 1, 2023. You can read her article here.

 

SPEAKING ENGAGEMENTS
Matthew Keris (Scranton, PA) presented “Radonda Vaught Lessons: The Ethical Challenges of Managing Dual Legal Investigations” at the DRI Medical Liability and Health Care Law Seminar. Matthew also presented the American Legal Connections webinar “Best Practices for an Audit Trail Expert Deposition.”

Jeffrey Rapattoni (Mount Laurel, NJ) participated in two seminars at the annual Insurance Fraud Management Conference. Jeff moderated “Legal Update Panel” and participated in “Identification of SIU Suggested Best Practices.”

Raymond Michaud (Mount Laurel, NJ) spoke at the New Jersey Chapter of the American Water Works Association Annual Conference. His presentation, “Case Studies in Ethics for Engineers,” focused on the water crisis in Flint, Michigan and the ethical behaviors of engineers.

Jon Cross (Philadelphia, PA), Christopher DiCicco (Mount Laurel, NJ), Jay Hamad (New York, NY), A.C. Nash (Fort Lauderdale, FL), David Shannon (Philadelphia, PA), Robin Snyder (Philadelphia, PA), and Sunny Sparano (Roseland, NJ) recently participated in ILG 360° London Annual Conference 2023. Our attorneys presented practice area-specific webinars in areas such as concussion litigation, aviation, cyber risk and systemic threats, changes in the construction industry, marine cargo claims and claims inflation in property and casualty litigation. All of our presenters guided participants through case studies and interactive sessions, addressing key issues of importance to claims professionals and insurance industry personnel. For background, Marshall Dennehey is a founding member of Insurance Law Global (ILG), a multi-jurisdictional network of like-minded independent insurance defense law firms. The network is committed to helping clients respond to the challenges and opportunities presented by globalization and the increasingly diverse needs of the insurance industry. You can watch the conference in its entirety here: https://www.ourevent.tv/ilg23. 

John Hare (Philadelphia, PA) spoke at the Pennsylvania Bar Association’s annual Civil Litigation Update. John spoke on notable case law and procedural rule developments over the past year.

Brooks Foland (Harrisburg, PA) presented “The Mediator’s Role as Convener” at the Pennsylvania Council of Mediators 35th Annual Conference in Harrisburg.

Janice Merrill (Orlando, FL) presented at the Orlando Health Wound, Ostomy, and Continence Nurses Society meeting on the “Pitfalls of Pressure Injury Litigation.”

Mohamad Bakry (Philadelphia, PA) co-presented “Power Jackpots and Life Care Plans: What’s the Difference and What Can Be Done About It?” at the FDCC winter meeting. This panel discussed a survey of trends that defense counsel are seeing in life care plans, assessed techniques for challenging the underlying assumptions of those plans, and explained how to defend against these huge damages claims. 

Thomas Brown (Orlando, FL) discussed carshare and rideshare liability issues and best practices for defending against claims at the Florida Defense Lawyers Association’s webinar.

Jack Delany (Philadelphia, PA), an adjunct professor at Temple Law School’s Trial Advocacy Program LLM, presented “Nuts and Bolts Trial Strategy in a Post-COVID, Social Unrest, and Nuclear Verdict Time Period.”

Harold Moroknek (Westchester, NY) and Preston Holmes (Westchester, NJ) presented “What To Do When Stopped by Law Enforcement” at the American Bus Association, The Bus Industry Safety Council meeting.

A.C. Nash (Fort Lauderdale, FL) office joined a panel at the International Association of Professional Security Consultants (IAPSC) conference, where he discussed “Testimony from Intake to Trial.” The presentation took security experts through the stages of a new case, addressing intake, investigation, formulating opinions, and testifying at trial. 

Elizabeth Ferguson (Jacksonville, FL) presented “Can We Have It All?” at the Florida Bar Construction Law Institute’s Women in Construction Networking Breakfast.

John Hare (Philadelphia, PA) presented a seminar on civil litigation developments for the Pennsylvania Coalition for Civil Justice Reform. The seminar was held at the Pennsylvania Manufacturers Association facility in Harrisburg and was attended by representatives from more than forty insurance carriers and corporations.

James Cole (Philadelphia, PA) presented “Untying Tangled Titles – Recognizing How Property Title Issues Drive Fraud” at the 2023 Pennsylvania Insurance Fraud Conference.

James Cole (Philadelphia, PA), Jeffrey Rapattoni (Mount Laurel, NJ), and Christopher Woodward (Harrisburg, PA) were featured speakers at the 2023 Pennsylvania Insurance Fraud Conference. Presented by IASIU (Delaware Valley and Greater Pittsburgh Chapters) and the Pennsylvania Insurance Fraud Prevention Authority (IFPA), Jim and Chris presented “Untying Tangled Titles – How Property Insurance Drives Fraud,” and Jeff presented a “Legal Update.” 

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) presented at the Camden County Bar Association’s Civil Practice Update. Jack presented on various updates pertaining to Legal Malpractice Liability and Expert Strategy Parameters in light of the Supreme Court’s decision in Accutane. Jeremy presented on recent updates pertaining to the Affidavit of Merit Statute and case application and also moderated this panel discussion, which included various members of the bench and the bar in Camden County. The seminar was well attended and is considered a seminal event within the Camden County Bar Association. 

Josh J.T. Byrne (Philadelphia, PA) participated in the presentation “Ethics and Malpractice Avoidance” at the Pennsylvania Bar Association’s Mid-Year Meeting along with Justice Sallie Updyke Mundy and Michael Furlong of CNA. Josh also presented at the Philadelphia Bar Association’s Bench-Bar meeting on “Practicing with Integrity” with Chief Disciplinary Counsel Thomas Farrell, Judge Tiffany Palmer, and Judicial Candidate Kay Yu.

Shannon Fellin and Katherine Bavoso (Harrisburg, PA) were speakers at the Workers’ Compensation Bench and Bar Best Practices 2023 forum. They joined a panel of distinguished industry professionals to discuss “Ethics, Professionalism, Civility, & Culture.” 

Michele Punturi (Philadelphia, PA) participated in a panel discussion at the CLM Annual Conference. The panel focused on increasing diversity and sustaining organizational change in the claims industry. In “Building a Better Business, Achieving a More Diverse Future,” the panelists talked about how diversity, equity, and inclusion efforts have taken center stage in the workplace and identified emerging recruitment and retention strategies that employers can utilize to achieve a more diverse future. The session also included an analysis of effective ways to maintain diverse vendor teams while building stronger partnerships in claims handling in the legal industry. 

Frank Wickersham (King of Prussia, PA) presented at the 19th Annual Worker’s Compensation Insurance ExecuSummit. In his “State of the Union - Medical Marijuana,” Frank discussed the ongoing efforts around the nation, via lawsuits and legislation, to obtain clarity on medical marijuana coverage for injured workers. Frank also co-presented “One Less Zombie in the Workers’ Compensation Apocalypse” at the CLM 2023 Workers’ Compensation, Casualty & Risk Management Conference. This seminar addressed strategies for dealing with the relentless issue of opioids and the growing reliance on cannabis in workers’ compensation.

Heather Carbone (Jacksonville, FL) was the keynote speaker at the 2023 International Association of Rehabilitation Professionals (IARP) Annual Southeast Florida Workers’ Compensation Claims Conference. Heather’s topic was “Talking About Generations.”
 

 

Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

News

Veteran Trial Attorney Joseph M. Toddy Joins Marshall Dennehey’s Casualty Department in Philadelphia

Congratulations to our 2026 Florida Super Lawyers & Rising Stars: Elizabeth Ferguson, A.C. Nash, Taylor Naughton, Sophia Philor, Amara Rodriguez

News

Marshall Dennehey Announces 2026 Florida Super Lawyers & Florida Rising Stars

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

The Texas Parks & Wildlife Department (TPWD) announced earlier this month that one of its vendors which handles the sale of state hunting and fishing licenses was the victim of a cybersecurity attack. The threat actor appears to have exfiltrated personal driver’s license information, passport numbers, email addresses, phone numbers and addresses of over 3 million hunting and fishing license holders.  The State Parks Department advised that the attack did not compromise social security numbers, dates of birth or financial information. Texas Cyber Command, the state’s new cybersecurity authority formed to protect critical infrastructure and coordinate threat responses across state and local government, reportedly assisted in detecting and containing the attack. TPWD has already set up free credit monitoring for those impacted through Kroll.  According to press reports, no specific group has yet been identified as the perpetrator of the theft. TPWD also advised that business has not been interrupted and license sales were continuing. This incident once again demonstrates that cybersecurity is only as strong as the weakest link in the supply chain. Businesses must prioritize security across their own environments and those of their vendors and contractors as well.

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Thought Leadership

The Enforceability of Online Arbitration Agreements Remains Unresolved in Pennsylvania, But the Pennsylvania Superior Court has Provided Substantive Guidance on the Issue

Key Points: The Pennsylvania Supreme Court confirms that an order compelling arbitration is not immediately appealable as collateral orders. The outcome of Chilutti II has generally left the substantive enforceability issues with browsewrap agreements unresolved in Pennsylvania. Until this issue is resolved by the Pennsylvania courts, companies operating in the Commonwealth should strive to ensure that their registration websites and/or application screens conspicuously present arbitration agreements in manners which ensure their users and consumers assent to the terms of the agreements by following the standards set forth in Chilutti I. Browsewrap agreements have been defined as agreements “‘in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,’ and typically do not require an electronic signature.” See, Cobb v. Tesla, Inc., 2026 WL 458470, at *1 n. 2 (Pa. Super. Feb. 18, 2026) (citation omitted). They are largely regarded as the “if you keep using this, you agree to everything buried in this link” terms embedded into almost every online agreement consumers and users sign before proceeding with purchases of goods and/or services. While consumers are generally aware of them, many almost never click on the link, nor read them in their entirety. This leaves many consumers and users ignorant of the terms and impact of such agreements. However, one’s ignorance of the otherwise neatly-tucked-away terms rarely renders them unenforceable. The issue of the enforceability of browsewrap agreements has been up for debate for some time in many jurisdictions, including Pennsylvania. Indeed, Pennsylvania had a brief grip on this issue for a period in time. Specifically, in 2023, an en banc Superior Court set forth heightened standards for companies to meet in order to secure assent and enforce browsewrap arbitration agreements. See Chilutti v. Uber Techs., Inc., 300 A.3d 430 (Pa.Super. 2023) (en banc) (“Chilutti I”) Chilutti I involved a husband and wife who sued Uber and its subsidiaries after the wife, a wheelchair bound passenger using Uber’s rideshare service, fell, struck her head, and lost consciousness due to her uber driver failing to provide a seatbelt and making an aggressive turn during the trip. The Chilutti’s filed a negligence lawsuit against Uber and its subsidiaries. In response, the defendants moved to compel arbitration, arguing that “the couple’s conduct on the company’s website and application — when they registered for the ridesharing service — signified that they agreed to be bound by the mandatory arbitration provision found in the hyperlinked terms and conditions.” The trial court granted the defendants’ petition and stayed the proceedings pending the results of arbitration, and the Chilutti’s appealed. On appeal, the Superior Court addressed two issues. First, it addressed the issue of whether it had jurisdiction to hear the appeal. A divided Superior Court determined that it did, with its basis for the holding being that the order from which the Chilutti’s appealed was a collateral order. Next, the Superior Court set out to address the merits of the Chilutti’s substantive claim. The Superior Court concluded that the parties lacked a valid agreement to arbitrate. Its rationale was that Uber’s website and application did not provide reasonably conspicuous notice of the terms to the Chiluttis. In reaching this decision, the en banc Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if the registration website and application screens explicitly inform consumers that they are waiving the right to a jury trial, the registration process cannot be completed until the consumer is fully informed of this waiver, and, when the agreement is available via hyperlink, the waiver appears at the top of the first page of the terms in bold, capitalized text. Since the ruling, Pennsylvania courts have applied Chilutti I to determine if browsewrap agreements are enforceable.  For instance, the Allegheny County Court of Common Pleas invoked Chilutti I to reject an agreement that lacked an express jury-trial waiver on the assent screen.  See Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (C.P. Alleg. Cnty. Mar. 24, 2025). Similarly, the Superior Court has held that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti I.” Pierce v. FloatMe Corp., 348 A.3d 1077, 1088 (Pa. Super. 2025). While the issue of enforceability of browsewrap agreements appeared to have been resolved by Chilutti I, Pennsylvania courts’ grip on this issue has been slackened by the Pennsylvania Supreme Court’s January 21, 2026, opinion in Chilutti II. See Chilutti v. Uber Techs., Inc., 349 A.3d 826 (Pa. 2026) (“Chilutti II”). Therein, the Supreme Court did not address the merits of the Chiluttis’ substantive claim, but rather the issue of whether the Superior Court had appellate jurisdiction to immediately review the orders staying litigation pending arbitration. The Court ultimately vacated the en banc opinion on jurisdictional grounds, holding that the Superior Court did not have appellate jurisdiction because the trial court’s order from which the Chiluttis appealed did not qualify as a collateral order and, thus, the Superior Court erred in holding to the contrary and lacked jurisdiction to entertain the merits” of the Chiluttis’ substantive claim. As such, Chilutti II has rendered Chilutti I nonbinding, and the issue of enforceability of online arbitration agreements remains unresolved. However, in light of the fact the Supreme Court did not address or comment on the merits of the Chiluttis’ appeal, Chilutti I is still meaningful. Specifically, it provides guidance as to the standards a company should strive to meet to ensure they have obtained users’ assent so that they are able to enforce online arbitration agreements. Additionally, it may serve as persuasive authority in judges’ evaluations of petitions and/or motions to compel browsewrap arbitration agreements until this particular issue is properly put before our appellate courts. Keanna works in our Pittsburgh, PA office. She can be reached at (412) 803-1174 or KASeabrooks@MDWCG.com.