.

Kimberly A. Boyer-Cohen

Special Counsel

KABoyer-cohen@mdwcg.com

Portrait of Kimberly A. Boyer-Cohen

Kimberly's legal practice is devoted solely to post-trial and appellate advocacy, dealing with a wide variety of substantive matters including professional malpractice, civil rights litigation, products liability, employment law and premises liability. In her capacity as an appellate attorney, Kimberly has handled over 150 appeals, including oral arguments when necessary before the Pennsylvania Superior Court, Pennsylvania Commonwealth Court, Pennsylvania Supreme Court and the Third Circuit Court of Appeals.
 
In 1992, Kimberly graduated from Penn State University with a B.S. in Labor and Industrial Relations. After working for several years in the area of human resources, she attended Temple University School of Law where she received her juris doctor in 1999. While at Temple, Kimberly was involved in the Moot Court Honor Society and the Women's Law Caucus and served on the executive board of both organizations.
 
Kimberly is admitted to practice in Pennsylvania and before the Third Circuit Court of Appeals and the Sixth Circuit Court of Appeals. She is a member of the Philadelphia Bar Association, where she is active in the Women in the Profession Committee and the Appellate Courts Committee. Also at the Pennsylvania Bar Association, Kimberly is involved in the Commission on Women in the Profession and the Post-Trial and Appellate Practice Committee.
 
Prior to joining Marshall Dennehey in 2001, Kimberly worked for a Philadelphia law firm where her practice focused on construction litigation, labor and employment law and defense litigation. 

    • Temple University Beasley School of Law (J.D., 1999)
    • The Pennsylvania State University (B.S., 1992)
    • Pennsylvania, 1999
    • U.S. District Court Eastern District of Pennsylvania, 2000
    • U.S. Court of Appeals 3rd Circuit, 2002
    • U.S. Court of Appeals 6th Circuit, 2006
    • Supreme Court of the United States, 2008
    • AV® Preeminent™ by Martindale-Hubbell®
    • Litigation Counsel of America Fellows
    • Pennsylvania Super Lawyer (2013-2022)
    • Top Women in Law, The Legal Intelligencer (2016)
    • Pennsylvania Bar Association, Commission on Women in the Profession
    • Pennsylvania Bar Association, Post-Trial and Appellate Practice Committee.
    • Philadelphia Bar Association, Appellate Courts Committee, Co-Chair (2009 to present)
    • Philadelphia Bar Association, Women in the Profession Committee
    • Preserving Issues In The Trial Court, NACLE, April 1, 2014
    • Professionalism in the Law, Villanova Law School, September 2012
    • Creating a Win-Win Mentoring Program for Female Attorneys and the Firm, American Conference Institute's Premier Conference on Retaining and Promoting Female Attorneys, May 22, 2007
    • “Pennsylvania Supreme Court Refuses to Expand Lawyer Liability,” Defense Digest, January 2021, Vol. 27, No. 1
    • “Occupant In a Fleeing Vehicle Is Not an Innocent Bystander…Or Is He?,” Defense Digest, Vol. 20, No. 1, March 2014
    • "Navigating The 1925(b) Minefield Of Waiver - The Pennsylvania Supreme Court's Attempt To 'Clarify The Confusion And Quell The Consternation'," Defense Digest, June, Vol. 14 No. 2, 2008
    • "Stipulating to Cap on Compensatory Damages Limits Potential Delay Damages," Defense Digest, March, Vol. 12 No. 1, 2006
    • "The Trend In Construing the Ohio Employer Intentional Tort Exception -A Consistent, Workable Standard or Confusing, Expansive Quandary?," Defense Digest, December, Vol. 9 No. 4, 2003
    • "Failure to Anticipate Potential Mail Delays May Result in a Party's Loss of Rights," Defense Digest, March, Vol. 8 No. 1, 2002
    • "A Taint of Evidence Claim of Error - It 'Taint' So Effective in Civil Cases'," Defense Digest, December, Vol. 8 No. 4, 2002
    • By a vote of 7-0, the Pennsylvania Supreme Court reversed the Superior Court and the trial court and ruled that Kim’s client, a general contractor, was immune from suit under Pennsylvania’s statutory employer doctrine.  The ruling nullified a large verdict against the general contractor.  Twenty-one construction and insurance industry groups joined together as amici to support John’s appeal to the Supreme Court.  Patton v. Worthington Associates, 2014 Pa. LEXIS 788 (March 26, 2014)
    • The Pennsylvania Superior Court dismissed a highly-publicized death case filed against Kim's client in Pennsylvania based upon the doctrine of forum non conveniens under Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(e).  Jones v. Morey's Pier Inc., No. 2990 EDA 2012 (March 10, 2014)
    • The Superior Court vacated a large judgment against Kim's client and remanded for the entry of judgment notwithstanding the verdict, finding that the plaintiff had failed to establish the store had actual or constructive notice of the allegedly defective condition.  Davis v. Target Corporation, 2098 EDA 2011 (Pa. Super., March 27, 2013).
    • In a case of first impression, the Pennsylvania Supreme Court reversed the en banc Superior Court's finding that "a patient does have a cause of action against either a psychiatrist or a general practitioner rendering psychological care, when during the course of treatment the physician has a sexual relationship with the patient that causes the patient's emotional or psychological symptoms to worsen."  The Pennsylvania Supreme Court granted allocatur limited to deciding "Whether, for purposes of determining professional negligence, a general practitioner who provides mental health treatment to a patient is held to the same higher duty as a specialist in psychiatry or psychology?"  After engaging in a very exhaustive review and analysis of the law in Pennsylvania, as well as other jurisdictions, the Pennsylvania Supreme Court held that as a general practitioner, Kim's client was under no specific or "heightened" duty in tort to refrain from sexual relations with his patient under the circumstances where he provided "incidental mental health treatment."  In doing so, the Supreme Court rejected the Superior Court's decision which held the doctor to a novel duty and standard.  Thierfelder v. Wolfert, 52 A.3d 1251 (Pa. 2012).
    • The Pennsylvania Commonwealth Court vacated a large judgment against Kim's client, a township, and remanded for the entry of judgment notwithstanding the verdict, on the basis that the trial evidence failed to demonstrate that the township was responsible for the decedent's death.  Rahman v. Falls Township, 2012 Pa. Commw. Unpub. LEXIS 126 (Pa.Cmwlth., January 6, 2012).
    • The Pennsylvania Superior Court reversed the ruling of the trial court and awarded a judgment notwithstanding the verdict, vacating a large verdict against Kim's client, a mutual insurance company, on the basis that the insurer's conduct in handling a fire damage claim did not constitute bad faith as a matter of law.  Edkin v. Brethren Mutual Insurance Co., 1331 MDA 2009 (Pa. Super., February 4, 2011)
    • he Pennsylvania Superior Court vacated an adverse jury verdict and remanded for a new trial in favor of Kim's client, one of the world's leading construction firms, in its claim for contractual indemnity. Skanska USA Buildings, Inc. v. Gory Mechanical Contractors, 345 EDA 2010 (Pa. Super., January 19, 2011)
    •   The Pennsylvania Superior Court affirmed the judgment of the trial court and upheld the dismissal of all claims against Kim's client, an investigating company, on the basis that the plaintiff, who was seeking workers' compensation benefits from his employer, failed to show that he had an expectation of privacy while participating in a worship service in a sanctuary. Tagouma v. Investigative Consultant Servs., 4 A.3d 170 (Pa. Super. 2010).
    • The Pennsylvania Superior Court vacated an adverse jury verdict and remanded for the entry of judgment notwithstanding the verdict in favor of Kim's client on the basis that  the trial court failed to make the threshold determination of whether an absolute privilege applied to the hospital's use of the plaintiff's confidential personnel file at a labor relations hearing involving unionization of nurses.  Moreover, the Superior Court determined that the record showed no evidence of abuse of that privilege and made clear the purpose of the disclosure was genuine and related to the NLRB proceedings. Doe v. Wyo. Valley Health Care Sys., 987 A.2d 758 (Pa. Super. 2009).
    • Successfully argued in the Superior Court that a methadone clinic, which took steps to regulate the dissemination of methadone in accordance with federal guidelines, did not owe a duty of care to a third party who lethally overdosed after buying methadone that was stolen from a patient of the clinic." to say "The Superior Court affirmed the grant of judgment in favor of Kim's client on the basis that a methadone clinic, which took steps to regulate the dissemination of methadone in accordance with federal guidelines, did not owe a duty of care to a third party who lethally overdosed after buying methadone that was stolen from a patient of the clinic.  McCandless v. Edwards, 908 A.2d 900 (Pa. Super. 2006)
    • Successfully argued in the Superior Court that dismissal of a medical malpractice complaint was required when the cause of action arose outside of Pennsylvania, even if the trial court has jurisdiction" to say "In a case of first impression, Kim successfully arged in the Superior Court that dismissal of a medical malpractice complaint was required when the cause of action arose outside of Pennsylvania, even if the trial court has jurisdiction.  Searles v. Estrada, 856 A.2d 85 (Pa. Super. 2004)

Results

View all

Dismissal of Legal Malpractice Action per Lease Agreement Dispute

We obtained the dismissal of a legal malpractice action against our client arising from its representation of the plaintiff in a lease agreement dispute. After the deadlines passed for completion of discovery and production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report, but failed to act with due diligence and could not substantiate each element of its claim without an expert report. 

Dismissal of Legal Malpractice Action Obtained

The plaintiff brought a professional negligence claim against our client arising from the firm’s representation of the plaintiff in a lease agreement dispute. After the deadlines passed for the completion of discovery and the production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument, that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, _ A.3d _, 2022 PA Super 70 (April 19, 2022).

Thought Leadership

View all

Defense Digest

Pennsylvania Supreme Court Refuses to Expand Lawyer Liability

January 29, 2021

Key Points: Pennsylvania Supreme Court refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. By refusing to adopt a different rule for legal malpractice cases, this decision has strengthened the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Edwin Schwartz and Nicole Ehrhart, shareholders in our Professional Liability Department, litigated the case at the trial court level, and Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court. David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012. Mr. Clark did not commence his action against Mr. Stover and his law firm until October 1, 2015, at which time he alleged that Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuous representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005). The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuous representation rule was favored by a majority of other jurisdictions. In response, Mr. Stover argued that adoption of the continuous representation rule would adversely impact the purpose of the statute of limitations—"to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship. The Pennsylvania Supreme Court agreed with Mr. Stover’s position. The court reasoned that statutes of limitations are legislative in character and that consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims. By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals. *Ed is a shareholder in our Harrisburg, Pennsylvania office and can be reached at (717) 651-3700 or easchwartz@mdwcg.com. Kim is special counsel in our Philadelphia, Pennsylvania office. She can be reached at (215) 575-2707 or kaboyer-cohen@mdwcg.com. Nicole, a shareholder, works in our Harrisburg office and can be reached at (717) 651-3512 or nmehrhart@mdwcg.com. Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Legal Updates for Lawyers' Professional Liability

Pennsylvania Supreme Court Refuses to Expand Lawyer Liability

January 6, 2021

On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court. David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012. Mr. Clark did not commence his action against Mr. Stover and the law firm until October 1, 2015, at which time he alleged Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply. On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuing representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005). The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuing representation rule was favored by a majority of other jurisdictions. In response, Mr. Stover argued that adoption of the continuing representation rule would adversely impact the purpose of the statute of limitations "to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship. The Pennsylvania Supreme Court agreed with the position of Mr. Stover. The court reasoned that statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims. By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals.   The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

News

View all

Firm Highlights

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. 

News

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

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.

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.

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

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

Result

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

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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.

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.