The Subrogation Strategist

In Duffy v. Tatum, 2026 Pa. Super. LEXIS 112, 2026 PA Super 41, the Superior Court of Pennsylvania (Superior Court) considered whether an arbitration provision contained in the online Terms of Service on the defendant’s website were enforceable. The plaintiff, Daniel Duffy (Duffy), visited the website of defendant, Dolly, Inc. (Dolly), to purchase moving services. Duffy selected the number of movers, items to be moved and the type of vehicle needed. To complete the booking, the website required Duffy to checkmark a box labeled “By checking this box I accept the Dolly Terms of Service.” Duffy did not have to open the link or scroll to the bottom of the agreement before being able to click on the checkmark box. The Terms of Service included an arbitration provision requiring that any dispute related to the moving services to be resolved by arbitration in accordance with the American Arbitration Association. The Terms of Service did not include any statement that the user was waiving the right to a jury trial. The Superior Court found the internet Terms of Service unenforceable.           

During the moving process, an accident occurred and injured Duffy. In May 2024, Duffy and his wife sued Dolly and other related entities alleging negligence and loss of consortium. Dolly filed preliminary objections alleging that the parties agreed to alternative dispute resolution. The lower court overruled the preliminary objections, finding that Dolly’s website did not provide reasonably obvious notice of its Terms of Service to Duffy and, as such, Duffy never agreed to waive his constructional right to a jury trial. Dolly filed an appeal to the Superior Court.

The court began its analysis by explaining that an arbitration provision is in essence a waiver of one’s constitutional right to a jury trial. The court also noted the ever-increasing use of arbitration agreements in contracts and the consequences of these agreements on a person’s right to a jury trial. Pennsylvania has made headway in increasing its scrutiny of arbitration agreements where “there is no genuine effort to inform a purchaser of the terms of the contract before they click on a link or box…”  

The Superior Court compared arbitration agreements to confessions of judgment, which are subject to strict scrutiny. The precedent in Pennsylvania holds that courts will only uphold a confession of judgment when it is clear that the party that agreed to it was aware that it waived its right to a jury trial. Historically, however, Pennsylvania courts have not applied the same scrutiny to arbitration agreements.

The elements of a valid contract in Pennsylvania are an offer, acceptance, and consideration or mutual meetings of the minds. The Superior Court questioned whether certain online agreements could satisfy the elements of a valid contract. More specifically, the court questioned whether Duffy took any action that manifested his assent to be bound by the Terms of Service on Dolly’s website. 

There are at least four different types of online consumer contracts: browsewrap, clickwrap, scrollwrap, and sign-in wrap. Browsewrap is where a website dictates that assent is given merely by using the site. Clickwrap occurs when a user must click “I agree,” but is not required to review the terms. Scrollwrap requires a user to scroll and view the terms of the online agreement before assenting. Sign-in wrap couples assent with signing up to use a website.

The Superior Court found that the agreement here was a combination of sign-wrap and clickwrap, as Dolly did not require Duffy to scroll through the terms before being able to checkmark the box. Thus, Duffy could not complete the sign-up for services without clicking a box to accept the Terms of Service.

The court set forth a strict burden of proof standard to demonstrate a person’s unambiguous manifestation of assent to arbitration. This burden requires: 1) explicitly stating on the website and application screen that the consumer is waiving its right to a jury trial, and 2) that the waiver appear “prominently in bold, capitalized text,” not buried in the middle of the document. Based on this new standard for arbitration provisions, the Superior Court ruled that Dolly’s online agreement failed to meet these requirements and thus did not pass constitutional muster under the Pennsylvania Constitution.  

The Duffy case establishes new precedent for the enforceability of arbitration provisions in online agreements in Pennsylvania and provides more stringent protection for a consumer’s constitutional right to a jury trial. Subrogation professionals handling Pennsylvania matters should consider this case when evaluating whether an arbitration provision or a waiver of jury trial contained in an online agreement is enforceable.