Duffy, D. v. Tatum, R.

Summary

The Pennsylvania Superior Court affirmed an order overruling Dolly, Inc.'s preliminary objections seeking to compel arbitration in a negligence and loss-of-consortium action. The court held that the website's hyperlinked terms of service did not provide sufficiently explicit and prominent notice that agreeing to the terms waived the user's constitutional right to a jury trial. Because the plaintiff never viewed the terms and did not unambiguously assent to arbitration, the court found no enforceable arbitration agreement.

Holdings

1. The order was appealable as of right because the agreement ultimately required arbitration, even though it included pre-arbitration negotiation and mediation procedures.
2. No valid agreement to arbitrate was formed because Dolly's online contracting process did not provide reasonably obvious notice that acceptance of the terms waived the constitutional right to a jury trial, and Duffy did not unambiguously manifest assent to that waiver.
3. To enforce such an online arbitration provision, the proponent must prove an unambiguous manifestation of assent by showing that the registration screens explicitly state that accepting the terms waives the right to a jury trial and that, when the terms are accessed through a hyperlink, the waiver is prominently displayed in bold, capitalized text rather than hidden in the document.

Questions Presented

1. Whether the Superior Court had appellate jurisdiction over the order denying Dolly's preliminary objections when the agreement required negotiation and mediation before arbitration.
2. Whether the online terms of service created a valid agreement to arbitrate and waive the constitutional right to a jury trial when the user clicked an acceptance box but never clicked, viewed, or scrolled through the hyperlinked terms.
3. Whether the dispute fell within the scope of the purported alternative-dispute-resolution agreement.

Disposition

affirmed