According to the Opinion, the Plaintiff had proceeded to the Defendant’s website to book services provided by the Defendant moving company.
On that website, the customer was required to check off a box accepting the Defendant’s terms of services. The customer had the ability to click on an underlined phrase that would take the customer to the Defendant’s Terms of Service by way of a hyperlink.
On that hyperlink, if the customer accessed it, one of the provisions that would be seen in the language on that page would be an ADR clause for the resolution of any disputes that arose between the parties by way of mediation followed by an arbitration, as opposed to by way of an opportunity for a jury trial in a court of law.
In this matter, the trial court found that the Defendant’s website did not provide a reasonably obvious notice of its Terms of Service to the Defendant’s customers prior to the customer’s purchasing the services offered by the company. As such, the trial court ruled that the customer had never agreed to waive his constitutional right to a jury trial. As noted, on appeal, the Pennsylvania Superior Court affirmed the trial court’s decision in this regard.
The Superior Court framed the central issue before it as involving “an overarching question of whether a person should be deprived of their constitutional right to a jury trial when they ostensibly enter into an arbitration agreement through hyperlinked Terms of Service on a website that the person never clicked on, viewed, or read.” See Op. at p. 6.
In so ruling, the Pennsylvania Superior Court referred to its prior decisions on this issue in which the court had held that the Pennsylvania State Constitution provides its citizens with the greater protections afforded by the right to a jury trial.
The Superior Court otherwise noted that the “copious use of contracts with restrictive arbitration agreements causes concern, particularly in the context of internet contracts like the one at issue here, where the parties are frequently of unequal bargaining power and one party may be unaware of the significant rights they are waiving simply by using a website to make a purchase or retain services.” See Op. at p. 8.
President Judge Emeritus Panella noted in his Opinion that, in recognition of this reality, Pennsylvania courts have taken a small step towards righting the wrongs of arbitration agreements with respect to wrongful death actions involving negligent nursing center facilities. The court otherwise noted that there is still a need for greater scrutiny regarding a person’s waiver of their constitutional right to a jury trial when it comes to these types of arbitration agreements in other scenarios as well.
In this matter, the trial court found that the Defendant’s website did not provide a reasonably obvious notice of its Terms of Service to the Defendant’s customers prior to the customer’s purchasing the services offered by the company. As such, the trial court ruled that the customer had never agreed to waive his constitutional right to a jury trial. As noted, on appeal, the Pennsylvania Superior Court affirmed the trial court’s decision in this regard.
The Superior Court framed the central issue before it as involving “an overarching question of whether a person should be deprived of their constitutional right to a jury trial when they ostensibly enter into an arbitration agreement through hyperlinked Terms of Service on a website that the person never clicked on, viewed, or read.” See Op. at p. 6.
In so ruling, the Pennsylvania Superior Court referred to its prior decisions on this issue in which the court had held that the Pennsylvania State Constitution provides its citizens with the greater protections afforded by the right to a jury trial.
The Superior Court otherwise noted that the “copious use of contracts with restrictive arbitration agreements causes concern, particularly in the context of internet contracts like the one at issue here, where the parties are frequently of unequal bargaining power and one party may be unaware of the significant rights they are waiving simply by using a website to make a purchase or retain services.” See Op. at p. 8.
President Judge Emeritus Panella noted in his Opinion that, in recognition of this reality, Pennsylvania courts have taken a small step towards righting the wrongs of arbitration agreements with respect to wrongful death actions involving negligent nursing center facilities. The court otherwise noted that there is still a need for greater scrutiny regarding a person’s waiver of their constitutional right to a jury trial when it comes to these types of arbitration agreements in other scenarios as well.
Judge Panella stated that “[t]his need is imperative when there is no genuine effort to inform a purchaser of the terms of the contract before they click on a link or box that purports to generate their agreement to a contract, as the case” was in this matter. See Op. at p. 9.
The court went on to note that it found that it is imperative that, in the context of civil litigation matters, that a person be fully informed of their constitutional right to a jury trial and of the effect of waiving that right. Accordingly, the court held that it is essential that any waiver of the right to a jury trial must be clearly described and evidenced such that the person waiving the right fully understands the right that they are giving up by agreeing to enter into the contract.
In light of its holding that the constitutional right to a jury trial in Pennsylvania should be afforded the greatest protection possibly by the courts of Pennsylvania, the court in this Duffy case enunciated a “strict burden of proof [that its] necessary to demonstrate a person’s unambiguous manifestation of assent to arbitration.” See Op. at p. 15.
More specifically, the court noted that this strict burden of proof necessary to demonstrate a person unambiguous assent to arbitration requires (1) an explicit statement on the registration website and application screens that a consumer is waiving their right to a jury trial when then the person agrees to the seller’s Terms of Service and the registration cannot be completed until the person is fully informed of that waiver, and (2) when the agreements are available for viewing after a user has clicked on a hyperlink, the waiver should be not hidden in the middle of the document, but rather, should appear prominently in bold, capitalized text. See Op. at p. 15.
The court additionally noted that the word “arbitration” must also be clearly defined within the arbitration agreement in addition to being prominently displayed in the language of the contract. See Op. at p. 16.
In the end, in this case, where the customer here never clicked on the Terms of Service and, therefore, never saw the Terms of Service, the court ruled the customer did not unambiguously assent or agree to give up his or her rights to a jury trial in favor of arbitration.
The court went on to note that it found that it is imperative that, in the context of civil litigation matters, that a person be fully informed of their constitutional right to a jury trial and of the effect of waiving that right. Accordingly, the court held that it is essential that any waiver of the right to a jury trial must be clearly described and evidenced such that the person waiving the right fully understands the right that they are giving up by agreeing to enter into the contract.
In light of its holding that the constitutional right to a jury trial in Pennsylvania should be afforded the greatest protection possibly by the courts of Pennsylvania, the court in this Duffy case enunciated a “strict burden of proof [that its] necessary to demonstrate a person’s unambiguous manifestation of assent to arbitration.” See Op. at p. 15.
More specifically, the court noted that this strict burden of proof necessary to demonstrate a person unambiguous assent to arbitration requires (1) an explicit statement on the registration website and application screens that a consumer is waiving their right to a jury trial when then the person agrees to the seller’s Terms of Service and the registration cannot be completed until the person is fully informed of that waiver, and (2) when the agreements are available for viewing after a user has clicked on a hyperlink, the waiver should be not hidden in the middle of the document, but rather, should appear prominently in bold, capitalized text. See Op. at p. 15.
The court additionally noted that the word “arbitration” must also be clearly defined within the arbitration agreement in addition to being prominently displayed in the language of the contract. See Op. at p. 16.
In the end, in this case, where the customer here never clicked on the Terms of Service and, therefore, never saw the Terms of Service, the court ruled the customer did not unambiguously assent or agree to give up his or her rights to a jury trial in favor of arbitration.
The Superior Court also ruled that, where the website did not provide a reasonably obvious notice of its Terms of Service, there was no meeting of the minds on a contractual basis relative to the issue of arbitration for the resolution of any disputes.
As such, the Pennsylvania Superior Court affirmed the lower court's decision and found that the trial court did not err in overruling the Defendant company’s Preliminary Objections on the issues presented.
Anyone wishing to review a copy of this decision may click this LINK.
Source: Article – “Pa. Superior Court Rules Company’s Terms Didn’t Waive Customer’s Right to Jury Trial” By Tristin Hoffman of The Legal Intelligencer (March 6, 2026).
I also send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton, Pennsylvania for making sure that I saw this decision as well.
Anyone wishing to review a copy of this decision may click this LINK.
Source: Article – “Pa. Superior Court Rules Company’s Terms Didn’t Waive Customer’s Right to Jury Trial” By Tristin Hoffman of The Legal Intelligencer (March 6, 2026).
I also send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton, Pennsylvania for making sure that I saw this decision as well.
Source of image: Photo by Vojtech Okenka on www.pexels.com.
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