Client Advisory

Janelle N. Winters, Matt Choi

On March 3, 2026, the Superior Court of Pennsylvania pronounced a sweeping opinion articulating strict requirements for the enforceability of online arbitration agreements. The decision was rooted in the Court’s deference to consumers’ right to trial by jury, “inviolate” in Pennsylvania.

In Duffy v. Tatum, Plaintiff Duffy booked moving services on the website www.Dolly.com, using a web browser on his iPad to do so. To complete his registration, Duffy was required to checkmark a box labeled “By checking this box I accept the Dolly Terms of Service,” in which “Dolly Terms of Service” was an underlined hyperlink that, when clicked, would lead him to the full Dolly’s Terms of Service Agreement in a pop-up window. An Arbitration provision appeared on Page 3 of the agreement, beginning with the statement, “PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH DOLLY AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM DOLLY.” Duffy was not required to click the hyperlink to the agreement or scroll to the bottom of the agreement in order to complete his registration. Following his registration, Duffy was injured in an accident while using Dolly’s moving services. At trial court, defendant Dolly, Inc. raised preliminary objections based on the arbitration provision. Plaintiff opposed, arguing that the arbitration provision was invalid. The trial court overruled Dolly’s preliminary objections. Dolly appealed.

The Superior Court affirmed the trial court’s ruling, finding that Duffy never saw the terms of service and did not unambiguously assent to arbitration, Dolly’s website did not provide reasonably obvious notice of its terms of service, and, consequently, there was no meeting of the minds.

In articulating its reasoning, the Court commented on the prolific use of arbitration agreements on a nearly daily basis, particularly in internet contracts, and opined that, often, the consumers are unaware that they are waiving their right to a trial by jury. The Court noted Pennsylvania courts’ recent attempts to right the “wrongs” of arbitration agreements, noting that there is often no genuine effort to inform a purchaser of the terms of a contract before they click on a link or a box that purports to generate their agreement to the contract. The Court drew a comparison to confessions of judgment, legal in Pennsylvania, in which signatories may confess their liability in a contract and forfeit their right to litigate. Enforceability of a confession of judgment requires a clear manifestation of the signatory’s awareness of her waiver of right to a jury trial, and the Court found that the same rigid scrutiny should be applied with respect to arbitration contracts. The Court also noted that only a scrollwrap agreement, which require users to physically scroll through an internet agreement before being able to proceed, are enforceable, because they present the consumer with a realistic opportunity to review the terms of the contract and require a physical manifestation of assent. The Court noted that the agreement in this case was merely a clickwrap and sign-in wrap, which was insufficient to pass muster.

The Court gave deference to the inviolate constitutional right to a trial in Pennsylvania, and accordingly set forth that an arbitration agreement must (1) explicitly state on the registration website and application screens that a consumer is waiving their right to a jury trial when 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 not be hidden in the middle of the document but should appear prominently in bold, capitalized text.