J-E01003-23

2023 PA Super 126

SHANNON CHILUTTI AND KEITH 

CHILUTTI, H/W

IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellants

v.

UBER TECHNOLOGIES, INC., GEGEN, 

LLC, RAISER-PA, LLC, RAISER, LLC, 

SARAH’S CAR CARE, INC. AND 

MOHAMMED BASHIER

Appellees No. 1023 EDA 2021

Appeal from the Order Entered April 26, 2021

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 200900764

BEFORE: BENDER, P.J.E., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J.,

NICHOLS, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.

DISSENTING OPINION BY STABILE, J.: FILED JULY 19, 2023

While I do not discount the concerns expressed by the Majority 

regarding Internet contracts, I disagree with the Majority’s premise that 

Appellants’ right to a jury trial is “central” to our Court’s disposition of this 

case. Majority Opinion at 1. What is central to this case is whether we have 

jurisdiction over an appeal from the trial court’s collateral order staying the 

proceedings and compelling arbitration. Because Appellants have not satisfied 

the third prong of the collateral order doctrine, i.e., that their claim will be 

irreparably lost if review is postponed, I conclude that this Court lacks 

jurisdiction and the appeal should be quashed. Therefore, I respectfully 

dissent. 
J-E01003-23

- 2 -

As the Majority observed, the trial court granted Uber’s petition to 

compel arbitration and stayed the proceedings with respect to the coAppellees. In its Rule 1925(a) opinion, the trial court did not discuss the 

parties’ arguments regarding the agreement to arbitrate (or lack thereof) or 

explain its basis for granting the motion to compel arbitration. Rather, the 

court appropriately limited its discussion to the appealability of a motion to 

compel arbitration and concluded that its order is “not appealable at this time 

because the parties have not been forced ‘out of court.’” Trial Court Opinion, 

6/2/21, at 2 (citing Maleski v. Mut. Fire, Marine & Inland Ins. Co., 633 

A.2d 1143, 1145 (Pa. 1993)). 

Initially, I note that “[a]n order compelling arbitration and staying court 

action is not final; rather, it is interlocutory because the parties are not forced 

‘out of court.’” Maleski, 633 A.2d at 1145 (citation omitted). As our Supreme 

Court stated in Maleski, “[T]here is no express statutory authority providing 

for an appeal from an interlocutory order in a case where arbitration is 

compelled[.]” Id. at 1146 (footnote omitted). See also Schantz v. 

Dodgeland, 830 A.2d 1265, 1266 (Pa. Super. 2003) ("An order directing 

arbitration, whether statutory or common law, is an interlocutory order and is 

not immediately appealable. The parties have been forced into, not put out 

of court. Thus the order is interlocutory[.]”) (citations omitted). Appellants 

nevertheless contend that we have jurisdiction to entertain this appeal as a 

collateral order pursuant to Pa.R.A.P. 313(b). As this Court has recognized: 
J-E01003-23

- 3 -

Under Pa.R.A.P. 313(b), a collateral order is an order that 1) is 

separable from and collateral to the main cause of action; 2) 

involves a right too important to be denied review; and 3) 

presents a question that, if review is postponed until final 

judgment in the case, the claim will be irreparably lost.

In re Bridgeport Fire Litigation, 51 A.3d 224, 230 n.8 (Pa. Super. 2012) 

(citation omitted).1

In Shearer v. Hafer, 177 A.3d 850 (Pa. 2018), our Supreme Court 

reiterated:

[We] construe the collateral order doctrine narrowly, and insist 

that each one of its three prongs be “clearly present” before 

collateral appellate review is allowed. Melvin v. Doe, 575 Pa.

264, 836 A.2d 42, 47 (2003); Geniviva v. Frisk, 555 Pa. 589,

725 A.2d 1209, 1214 (1999). Indeed, “[w]e construe the 

collateral order doctrine narrowly so as to avoid ‘undue corrosion 

of the final order rule[’]”. K.C. v. L.A., 633 Pa. 722, 128 A.3d

774, 778 (2015) (quoting Pridgen v. Parker Hannifin Corp.,

588 Pa. 405, 905 A.2d 422, 427 (2006)). . . . Moreover, as 

parties may seek allowance of appeal from an interlocutory order 

by permission, we have concluded that that discretionary process 

would be undermined by an overly permissive interpretation 

of Rule 313. Geniviva, 725 A.2d at 1214 n.5.

[2]

. . . As noted 

above, the collateral order doctrine permits an appeal as of right 

from a non-final collateral order if the order satisfies the three 

requirements set forth in Rule 313(b)—separability, importance, 

and irreparability.

____________________________________________

1 “The appealability of an order under the Pa.R.A.P. 313 collateral order 

doctrine presents a question of law, over which our standard of review is de 

novo and our scope of review is plenary.” Brooks v. Ewing Cole, Inc., 259 

A.3d 359, 365 (Pa. 2021) (citations omitted). 

2

I note that Appellants did not seek an appeal by permission pursuant to 

Pa.R.A.P. 312. 
J-E01003-23

- 4 -

Id. at 858. All three prongs of the collateral order test must be satisfied for 

this Court to exercise jurisdiction over an otherwise non-final order. Spanier 

v. Freeh, 95 A.3d 342, 345 (Pa. Super. 2014).

Here, while the first two prongs of the collateral order doctrine are 

arguably satisfied, I conclude that the third prong is not. In the event 

Appellants might not be satisfied with the results of their arbitration, they 

could seek review of the arbitrator’s decision.

In this regard, I recognize that Uber’s Terms of Use call for arbitration 

pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C.A., § 1 et seq. 

Nevertheless, as the Court of Appeals for the Third Circuit acknowledged:

Arbitration is fundamentally a creature of contract. The Supreme 

Court has stated: “arbitrators derive their authority to resolve 

disputes only because the parties have agreed in advance to 

submit such grievances to arbitration.” AT & T Techs., Inc. v. 

Communications Workers, 475 U.S. 643, 648–49, 106 S.Ct.

1415, 1418, 89 L.Ed.2d 648 (1986) (citation omitted). The 

Federal Arbitration Act makes written agreements to arbitrate 

“valid, irrevocable, and enforceable” on the same terms as other 

contracts. 9 U.S.C.A. § 2 (West 1970). There must be evidence 

sufficient to establish the parties’ consent to arbitration. As a 

matter of contract, no party can be forced to arbitrate unless that 

party has entered into an agreement to do so. That agreement 

must be express and unequivocal.

Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1512 (3d Cir. 

1994), aff’d, 514 U.S. 938, 115 S.Ct., 1920, 131 L.Ed.2d (1995) (some 

citations omitted). “An arbitrator's decision to assert jurisdiction over 

objection is, however, subject to a much broader and more rigorous judicial 

review than an arbitral decision on the merits. Because it is a question for the 
J-E01003-23

- 5 -

court to decide, it is subject to de novo judicial review.” Id. (internal 

quotations omitted). 

In affirming the Third Circuit’s decision, the United States Supreme 

Court stated, “Courts should not assume that the parties agreed to arbitrate 

arbitrability unless there is ‘clear and unmistakable evidence’ that they did 

so.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 

S.Ct. 1920, 131 L.Ed.2d (1995) (alterations and citations omitted). 

While Uber’s Terms of Use call for arbitration pursuant to the FAA, this 

Court has determined that “the FAA standards of review do not apply to a 

state trial court’s review over an arbitration award created and enforced under 

the FAA.” Trombetta v. Raymond James Financial Services, Inc., 907 
J-E01003-23

- 6 -

A.2d 550, 569 (Pa. Super. 2006).3 Therefore, we look to Pennsylvania’s 

arbitration laws.4 

____________________________________________

3

In Trombetta, the Court explained that, “[t]he language of FAA §10 itself 

substantiates this conclusion. Section 10 explicitly states: ‘the United States

court in and for the district where in the award was made . . .’ may vacate an 

arbitration award when certain circumstances are present.” Id., 907 A.2d at 

568-69 (emphasis and ellipses in original). “We believe this phrase 

constitutes plain language stating that FAA § 10 only applies to proceedings 

in United States district courts.” Id. at 569 (emphasis added). Because a 

review of the Complaint filed in this action reveals that Appellants as well as 

some Appellees are residents of or entities incorporated in Pennsylvania, there 

is no diversity of citizenship (or federal question) upon which jurisdiction in 

the district court could be based. 

A recent United States Supreme Court decision confirms that review of an 

arbitral award in this case would be governed by state law. In Badgerow v. 

Walters, 142 S.Ct. 1310 (2022), the Court held that “Congress has not 

authorized a federal court to adjudicate a Section 9 or 10 application just 

because the contractual dispute it presents grew out of arbitrating different 

claims, turning on different law, that (save for the parties’ agreement) could 

have been brought in federal court.” Id. at 1318. Further, “[t]he statutory 

plan . . . makes Section 9 and 10 applications conform to the normal—and 

sensible—judicial division of labor: The applications go to state, rather than 

federal, courts when they raise claims between non-diverse parties involving 

state law. Id. at 1321.

4

I note that Uber’s arbitration provisions reference applicability of California 

law in the event the FAA rules are found not to apply. If Appellants should 

attempt to vacate an award of the arbitrator, and if it is determined that 

California law applies, the court could look to Cal. Code Civ. Proc. 

§ 1286.2(a)(4), which provides for vacating an award in the event “arbitrators 

exceeded their powers and the award cannot be corrected without affecting 

the merits of the decision upon the controversy submitted.” See Cable 

Connection, Inc. v. DIRECTV, Inc., 190 P.3d 586, 600 (Ca. 2008) (“The 

powers of an arbitrator derive from, and are limited by, the agreement to 

arbitrate. Awards in excess of those powers may, under section[] 1286.2 and 

1286.6 be corrected or vacated by the court”) (citations omitted). 
J-E01003-23

- 7 -

As this Court explained in Sage v. Greenspan, 765 A.2d 1139 (Pa. 

Super. 2000), appeal den’d, 784 A.2d 119 (Pa. 2001): 

Chapter 73 of the Pennsylvania Judicial Code governs statutory, 

common law and judicial arbitration. 42 Pa.C.S.A. §§ 7301–

7362. Sections 7301–7320 of Subchapter A apply to statutory 

arbitration proceedings and are known collectively as the 

Pennsylvania Uniform Arbitration Act (“UAA”). Sections

7341 and 7342 of Subchapter B apply to common law arbitration 

proceedings. 42 Pa.C.S.A. §§ 7341–7342[.] Whether an 

arbitration agreement is subject to the UAA (Sections 7301–

7320 of Subchapter A) or common law (Sections 7341–7342 of 

Subchapter B) arbitration principles depends on whether the 

agreement is in writing and expressly provides for arbitration 

under the UAA. 42 Pa.C.S.A. § 7302(a)[.] Absent an express 

statement in the arbitration agreement, or a subsequent 

agreement by the parties which calls for the application of the UAA 

statutory provisions in Subchapter A, an agreement to arbitrate is 

conclusively presumed to be at common law and subject to the 

provisions of Subchapter B.

Id. at 1141 (citations omitted).5 Because the arbitration provisions in Uber’s 

Terms of Use make no reference to the UAA, the standards of review for 

common law arbitration should apply in the event of a challenge to an award 

of the FAA arbitrator. 

In Sage, we recognized that “[t]he standard of review for a common 

law arbitration is very limited.” Id. at 1142. However, as this Court held in 

____________________________________________

5 Because Appellants’ Uber registrations and the accident giving rise to 

Appellants’ claim predated July 1, 2019, the effective date of the Revised 

Statutory Arbitration Act, 42 Pa.C.S.A. § 7321.1-31, the provisions of that Act 

are not implicated. 
J-E01003-23

- 8 -

Civan v. Windemere Farms, Inc., 180 A.3d 489 (Pa. Super. 2018), “the 

narrow standard of review derived from section 7341 is not applicable when 

reviewing a petition to vacate based upon a claim that the parties do not have 

a valid agreement to arbitrate.” Id. at 499. Further, as this Court recognized 

in Sage, the award of an arbitrator “is binding and may not be vacated or 

modified unless it is clearly shown that a party was denied a hearing or that 

fraud, misconduct, corruption or other irregularity caused the rendition of an 

unjust, inequitable or unconscionable award.” Id. (quoting Prudential Prop. 

& Cas. Ins. Co. v. Stein, 683 A.2d 683, 684 (Pa. Super. 1996)). Because a 

party cannot be forced to arbitrate absent an agreement to do so, see First 

Options, supra, if a court determines there was no agreement to arbitrate, 

and that Appellants submitted to arbitration only because they were compelled 

to do so, I believe the court could properly vacate an award based on either 

the lack of an agreement to arbitrate or a finding that the resulting award was 

“unjust, inequitable or unconscionable.” Therefore, postponing review until 

final judgment in this case will not result in irreparable loss of Appellants’ claim 

as it can be reviewed in accordance with the applicable Pennsylvania 

arbitration statutes. Appellants have failed to demonstrate that postponing 

review until final judgment in the case will result in irreparable loss of their 

claim. Therefore, they have not satisfied the third prong of the collateral order 

test. 
J-E01003-23

- 9 -

In its discussion of the collateral order doctrine, the Majority quotes our 

Supreme Court’s decision in Commonwealth v. Wells, 719 A.2d 729 (Pa. 

1998), in which the Court recognized that Rule 313 “sets forth a narrow 

exception to the general rule that only final orders are subject to appellate 

review.” Majority Opinion at 7 (quoting Wells, 719 A.2d at 730). After 

identifying the three prongs, including the third prong, i.e., that “the question 

presented is such that if review is postponed until final judgment in the case, 

the claimed right will be irreparably lost,” id. (emphasis added), the Court 

in Wells observed that “[t]his third prong requires that the matter must 

effectively be unreviewable on appeal from final judgment.” Id. Quoting 

Commonwealth v. Myers, 322 A.2d 131, 133 (Pa. 1974), the Court in Wells 

also noted that an “order is not immediately appealable if it cannot be said 

‘that denial of immediate review would render impossible any review 

whatsoever of [the] individual's claim.’” (quoting United States v. Ryan, 402 

U.S. 530, 533, 91 S.Ct. 1580, 1582 (1971)). 

To demonstrate the nature of irreparable loss that satisfies the third 

prong of the collateral order test, in Brooks, supra, our Supreme Court held 

that the third prong was satisfied because a defendant’s sovereign immunity 

defense would be irreparably lost. Id., 259 A.3d at 373, 375 (“a sovereign 

immunity defense is irreparably lost if appellate review of an adverse decision 

on sovereign immunity is postponed until after final judgment” because “the 

bell has been rung, and cannot be unrung by a later appeal.”) (citations 
J-E01003-23

- 10 -

omitted). The protection is from a lawsuit itself not simply a mere shield from 

judgment or liability, as Pennsylvania courts have recognized. Id. at 372

(citing cases). Because sovereign immunity protects government entities 

from a lawsuit itself, the Court concluded that a sovereign immunity defense 

is irreparably lost if appellate review of an adverse decision on sovereign 

immunity is postponed until after final judgment. Id. at 373. Subjecting a 

governmental entity, which claims it is immune, to the legal process

undermines the purposes of sovereign immunity. Id. 

Unlike Brooks, Appellants here cannot demonstrate the irreparable loss 

of any such right. Appellants’ claim essentially concerns the forum in which

they will litigate their claim, not the loss of a forum whereby they would be 

out of court. If they are not pleased with the results of an arbitration, they 

have avenues open to them, whether based on an assertion that they did not 

agree to arbitrate, or a contention that “fraud, misconduct, corruption or other 

irregularity caused the rendition of an unjust, inequitable or unconscionable 

award.” Sage, supra, 765 A.2d at 1142 (citation omitted). In other words, 

the bell can be “unrung.” Although the Majority speaks in terms of legal 

hurdles facing Appellants should they attempt to seek judicial review of an 

arbitration award, Majority Opinion at 13, the Majority nevertheless stops 

short of contending the matter would “effectively be unreviewable,” stating 

instead that the third prong of the test is satisfied “because postponing review 

until final judgment in this case may result in the irreparable loss of 
J-E01003-23

- 11 -

Appellant’s claims.” Id. (emphasis added). I submit that the mere possibility 

of losing a claim falls short of a claim being “irreparably lost,” in light of the 

Supreme Court’s stated insistence “that each one of its three prongs be ‘clearly 

present’ before collateral appellate review is allowed.” Shearer, 177 A.3d at 

858 (citation omitted).

Again, the issue before this Court is not whether Appellants are being 

deprived of a right to a jury trial. The issue is whether this Court has 

jurisdiction over this appeal from an interlocutory order compelling arbitration. 

“Because there is no express statutory authority providing for an appeal from 

an interlocutory order in a case where arbitration is compelled,” Maleski, 633 

A.2d at 1146, and because Appellants cannot satisfy the third prong of the 

collateral order test, I would quash the appeal. 

Judge Olson and Judge Sullivan join the Dissenting Opinion.