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March 3, 2026 Get Citation Alerts Download PDF Add Note

Duffy, D. v. Tatum, R.

Superior Court of Pennsylvania

• Citations: 2026 Pa. Super. 41
• Docket Number: 483 EDA 2025

• Judges: Panella

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.1K)

• PDF

Lead Opinion

                        by [Jack A. Panella](https://www.courtlistener.com/person/8243/jack-a-panella/)

J-A30025-25 2026 PA Super 41

DANIEL DUFFY AND LAVERNE DUFFY, : IN THE SUPERIOR COURT OF
H/W : PENNSYLVANIA
:
:
v. :
:
:
ROBERT TATUM, JASON REEVES, :
DOLLY, INC., UPDATER, INC., : No. 483 EDA 2025
JOHN/JAN DOES 1-9, ABC :
CORPORATIONS 1-9 :
:
:
APPEAL OF: DOLLY, INC. :

Appeal from the Order Entered February 3, 2025
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 240501856

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and SULLIVAN, J.

OPINION BY PANELLA, P.J.E.: FILED MARCH 3, 2026

Dolly, Inc (“Dolly”) appeals from the order overruling its preliminary

objections alleging the parties agreed to an alternative dispute resolution

disposition. Dolly argues the trial court erred in finding Dolly’s website did not

provide reasonably obvious notice of its terms of service to Daniel Duffy

(“Duffy”) prior to Duffy purchasing Dolly’s services and, as such, Duffy never

agreed to waive his constitutional right to a jury trial. After careful review, we

affirm.

The trial court set forth the relevant factual and procedural history:

On November 30, 2022, [Duffy] used a web browser on his iPad
or laptop to access Dolly’s website (www.Dolly.com). On Dolly’s
website, [Duffy] clicked “Book a Dolly,” selected, among other
things, the desired service, number of movers, item the movers
J-A30025-25

would move, vehicle the movers would use to move the item, and
the date, time, and location of the move.

Dolly’s website then required [Duffy] to provide, among other
things, his first and last name, a mobile phone number, and to
checkmark a box labeled “By checking this box I accept the Dolly
Terms of Service” before [Duffy] was permitted to register and
purchase services. The phrase “Dolly Terms of Service” was
underlined. The website provided [Duffy] with the ability to click
on the underlined phrase “Dolly Terms of Service” as it was a
hyperlink to Dolly’s full Terms of Service Agreement. If [Duffy]
clicked on the hyperlink, Dolly’s Terms of Service Agreement
would appear in a new web browser window. On Page 3, Dolly’s
Terms of Service Agreement contained the following provision:

Governing Law; Arbitration

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.

These Terms shall be governed and construed in
accordance with the laws of the State of Washington
and the United States of America, without resort to
any conflict of law provisions.

In the event of any controversy or claim arising out of
or relating in any way to these Terms or the Dolly
platform, you and Dolly agree to consult and negotiate
with each other and, recognizing our mutual interests,
try to reach a solution satisfactory to both parties. If
we do not reach settlement within a period of 60 days,
then either of us may, by notice to the other[,]
demand mediation under the mediation rules of the
American Arbitration Association in Seattle,
Washington. We both give up our right to litigate our
disputes and may not proceed to arbitration without
first trying mediation, but you and Dolly are NOT
required to arbitrate any dispute in which either party
seeks equitable and other relief from the alleged
unlawful use of copyrights, trademarks, trade names,
logos, trade secrets or patents. Whether the dispute

-2-
J-A30025-25

is heard in arbitration or in court, you and Dolly will
not commence against the other a class action, class
arbitration or other representative action or
proceeding.

If settlement is not reached within 60 days after
service of a written demand for mediation, any
unresolved controversy or claim will be resolved by
arbitration in accordance with the rules of the
American Arbitration Association before a single
arbitrator in Seattle, Washington. The language of all
proceedings and filings will be English. The arbitrator
will render a written opinion including findings of fact
and law and the award and/or determination of the
arbitrator will be binding on the parties, and their
respective administrators and assigns, and will not be
subject to appeal. Judgment may be entered upon the
award of the arbitrator in any court of competent
jurisdiction. The expenses of the arbitration will be
shared equally by the parties unless the arbitration
determines that the expenses will be otherwise
assessed and the prevailing party may be awarded its
attorneys’ fees and expenses by the arbitrator. It is
the intent of the parties that, barring extraordinary
circumstances, arbitration proceedings will be
concluded within 90 days from the date the arbitrator
is appointed. The arbitrator may extend this time limit
only if failure to do so would unduly prejudice the
rights of the parties. Failure to adhere to this time limit
will not constitute a basis for challenging the award.
Consistent with the expedited nature of arbitration,
pre-hearing information exchange will be limited to
the reasonable production of relevant, non-privileged
documents, carried out expeditiously.

For any disputes that are not handled by arbitration,
you agree that any action at law or in equity arising
out of or relating to these Terms shall be filed only in
the state and federal courts located in Seattle,
Washington and you hereby irrevocably and
unconditionally consent and submit to the exclusive
jurisdiction of such courts over any suit, action or
proceeding arising out of these Terms or the use of
the Dolly Platform.

-3-
J-A30025-25

If [Duffy] had looked at Dolly’s Terms of Service Agreement, there
would have been no statement on the first page of the Terms of
Service stating in bold capitalized letters that the user is waiving
the right to [a] jury trial. No other part of the website stated that
a user is waiving the right to [a] jury trial. If [Duffy] had not check
marked the box, the website would not have allowed [Duffy] to
proceed to registration and to purchase services but instead would
return him to a window in which the phrase “By checking this box
I accept the Dolly Terms of Service” would be in red font. There
was no other way to register and purchase services other than
check marking the box. If [Duffy] had check marked the box, the
website would permit [Duffy] to register and purchase services.
The website did not require [Duffy] to click the underlined “Dolly
Terms of Service” hyperlink in order to register and purchase
services. The website did not require [Duffy] to scroll to the
bottom of the Terms of Service Agreement in order to register and
purchase services.

On November 30, 2022, [Duffy] purchased from Dolly through its
website moving services which, during such moving services, an
accident occurred, and [Duffy] was injured.

On May 15, 2024, Plaintiffs filed a request for the issuance of a
Writ of Summons, which was issued on that same date, and, on
September 24, 2024, filed a Complaint against Defendants in the
Philadelphia County Court of Common Pleas for negligence and
loss of consortium. On October 11, 2024, Dolly filed Preliminary
Objections to Plaintiffs’ Complaint arguing that Plaintiffs had
entered into an agreement for alternative dispute resolution with
Dolly for such claims. On November 4, 2024, Plaintiffs filed a
response to Dolly’s Preliminary Objections arguing that there
exists no valid alternative dispute resolution agreement between
the parties. On November 25, 2024, the trial court issued a Rule
permitting each party to conduct discovery on the issue of the
agreement for alternative dispute resolution and then to submit
supplement[al] briefs. On January 31, 2025, the trial court
overruled Dolly’s Preliminary Objections. On February 19, 2025,
Dolly filed a timely appeal of the [] order.[1]

---

1 While the trial court dated the order January 31, 2025, the order was not

docketed until February 3, 2025.

-4-
J-A30025-25

Trial Court Opinion, 5/1/25, at 1-4 (record citations and footnote omitted).

The trial court ordered Dolly to file a Rule 1925(b) statement and they

complied. See Pa.R.A.P. 1925(b). The trial court authored its Rule 1925(a)

opinion on May 1, 2025. See Pa.R.A.P. 1925(a).

Dolly raises one question for our review:

Did the trial court err in denying Dolly, Inc.’s preliminary objection
in the nature of an application to compel alternative dispute
resolution because 42 [Pa.C.S.A.] § 7304 requires the [c]ourt to
order the parties to proceed with alternative dispute resolution
where, as here, (1) a valid agreement to engage in alternative
dispute resolution exists and was agreed to by the parties; and
(2) the dispute falls within the scope of the alternative dispute
resolution provision of the Agreement[?]

Appellant’s Brief, at 5.2

Before we address the merits of the case, we must first address the

issue of whether the trial court’s order is an appealable order. See McCrossin

v. Comcast Spectacor, Inc., 311 A.3d 1115, 1121 (Pa. Super. 2024).

Traditionally,

[a]n order overruling preliminary objections that seek to compel
arbitration is an interlocutory order appealable as of right under
42 Pa.C.S.[A.] § 7320(a)(1) and Pa.R.A.P. 311(a)(8).

---

2 The trial court relied upon Chilutti v. Uber Technologies, Inc., 300 A.3d

430 (Pa. Super. 2023) (en banc), which was recently reversed by the
Pennsylvania Supreme Court on jurisdictional grounds during the pendency of
this appeal. See Chilutti v. Uber Technologies, Inc., ---A.3d---, 58 EAP
2025 (Pa. filed Jan. 21, 2026). The Supreme Court did not address the merits
of the appeal in Chilutti. We borrow substantially from this Court’s well-
founded en banc decision in Chilutti and find our state constitution provides
greater protection of the right to a jury trial, consistent with our en banc
decision in Chilutti.

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J-A30025-25

[Conversely, a]lternative dispute resolution agreements that
merely include arbitration as only one of a number of possible
methods of resolving disputes are not arbitration agreements, and
denial of enforcement of such dispute resolution agreements is
not appealable as of right. Where the parties’ agreement requires
arbitration, however, the denial of enforcement is appealable as
of right even though the parties’ agreement includes some pre-
arbitration settlement procedures.

Id. (citations omitted).

Here, the agreement includes pre-arbitration settlement negotiations

and mediation before requiring arbitration if settlement does not occur. We

therefore find we have jurisdiction to address this matter under 42 Pa.C.S.A.

§ 7320(a)(1) and Pa.R.A.P. 311(a)(8).

Turning to the central issue, we note that this case involves 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. In evaluating this question, we stress our

Commonwealth’s guarantee that its citizens have a constitutional right to a

jury trial that remains inviolate. See Pa.Const. art 1, § 6 (“Trial by jury shall

be as heretofore, and the right thereof remain inviolate.”). “Inviolate” is

defined as “[f]ree from violation; not broken, infringed, or impaired.” Black’s

Law Dictionary, “INVIOLATE” (11th ed. 2019).

For over a hundred and fifty years, our Pennsylvania Supreme Court has

protected this constitutional right:

-6-
J-A30025-25

The bill of rights, which is forever excluded from legislative
invasion, declares that the trial by jury shall remain as heretofore,
and the right thereof be inviolate; that all courts shall be open,
and that every man shall have redress by the due course of law,
and that no man can be deprived of his right, except by the
judgment of his peers or the law of the land.

Brown v. Hummel, 6 Pa. 86, 90 (1847).

“Whether an agreement to arbitrate disputes exists is a question of law.”

Neuhard v. Travelers Ins. Co., 831 A.2d 602, 604 (Pa. Super. 2003)

(citation omitted). “When we review questions of law, our standard of review

is limited to determining whether the trial court committed an error of law.”

Id. (citation omitted). Pennsylvania provides a two-part test in determining

whether arbitration should be compelled: “The first determination is whether

a valid agreement to arbitrate exists. The second determination is whether

the dispute is within the scope of the agreement.” Smay v. E.R. Stuebner,

Inc., 864 A.2d 1266, 1270 (Pa. Super. 2004) (citations omitted).

We note the relationship between arbitration agreements and the

constitutional right to a jury trial:

Pennsylvania has a well-established public policy that favors
arbitration, and this policy aligns with the federal approach
expressed in the Federal Arbitration Act (“FAA”). The fundamental
purpose of the [FAA] is to relieve the parties from expensive
litigation and to help ease the current congestion of court
calendars. Its passage was a congressional declaration of a liberal
federal policy favoring arbitration agreements.

This policy, however, was not intended to render arbitration
agreements more enforceable than other contracts, and the FAA
had not been designed to preempt all state law related to
arbitration. Rather, when addressing the specific issue of whether
there is a valid agreement to arbitrate, courts generally should

-7-
J-A30025-25

apply ordinary state-law principles that govern the formation of
contracts, but in doing so, must give due regard to the federal
policy favoring arbitration.

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660-61 (Pa. Super. 2013)

(citations, brackets, footnotes, and quotation marks omitted).

Arbitration agreements have evolved over the years, and the effect of

this evolution has substantially reduced the constitutional right to jury trials

in the civil arena. As our Pennsylvania Supreme Court has observed:

One of the striking consequences of the shift away from the civil
justice system and toward private adjudication is that
corporations are routinely stripping individuals of their
constitutional right to a jury trial. See U.S. Const. amend. VII
(preserving the right to trial by jury); Pa. Const. art. 1, § 6
(same). While one’s right to a jury trial may be waived, it is not
at all apparent that signatories to arbitration agreements are
aware that they waive their right to a jury trial upon the execution
of an arbitration agreement.

Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490, 508 (Pa.

2016) (footnote omitted).

The law can be slow to keep up with the realities of everyday life. This

includes the profuse use of arbitration agreements in contracts on a near daily

basis and the consequences of these agreements on a person’s constitutional

right to a jury trial. 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.

-8-
J-A30025-25

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. See i.e.,

Pisano, 77 A.3d at 661-62 (“compelling arbitration upon individuals who did

not waive their right to a jury trial would infringe upon wrongful death

claimants’ constitutional rights”). In recognizing this step, we note 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 arbitration

agreements. This 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 the contract, as is the case here.

In a similar vein, we note that confessions of judgment are bound by

strict scrutiny. A confession of judgment is similar to an arbitration agreement

because it takes place in the commercial transaction setting and waives one’s

right to a jury trial.

The compliance requirements for a confession have been described as

follows:

Historically, Pennsylvania law has recognized and permitted entry
of confessed judgments pursuant to the authority of a warrant of
attorney contained in a written agreement. A warrant of attorney
is a contractual agreement between the parties and the parties
are free to determine the manner in which the warrant may be
exercised. Entry of a valid judgment by confession must be
made in rigid adherence to the provisions of the warrant of
attorney; otherwise, such judgment will be stricken. A
warrant to confess judgment must be explicit and will be
strictly construed, with any ambiguities resolved against the

-9-
J-A30025-25

party in whose favor the warrant is given. A warrant of attorney
to confess judgment must be self-sustaining and to be self-
sustaining the warrant must be in writing and signed by the
person to be bound by it. The requisite signature must bear
a direct relation to the warrant of attorney and may not be
implied.

Neducsin v. Caplan, 121 A.3d 498, 505 (Pa. Super. 2015) (citations,

brackets, and quotation marks omitted; emphases added).

Following this rationale, “[t]here should be no doubt that the borrower

signed the warrant and that he was conscious of the fact he was conferring a

warrant upon the lender or lessor to confess judgment in the event of a

breach.” Wilmington Savings Fund Society, FSB v. Patel, 336 A.3d 984,

2903 EDA 2023, *6 (Pa. Super. filed March 18, 2025) (citing Ferrick v.

Bianchini, 69 A.3d 642, 651 (Pa. Super. 2013)).3 As an example, this Court,

in Graystone Bank v Grove Estates, LP., 58 A.3d 1277 (Pa. Super. 2012),

found a warrant of attorney valid because it “appeared conspicuously in all

caps on the very bottom of the penultimate page of the agreement and

immediately preceded where the executor … signed at the top of the following,

final page.” Graystone Bank, 58 A.3d at 1283 (italics in original).

Consequently, our 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 they waived their constitutional right to a jury trial. We find

---

3 Pursuant to Pa.R.A.P. 126(b), we may rely on non-precedential decisions of

this Court filed after May 1, 2019 for their persuasive value.

• 10 - J-A30025-25

the same must be applied to arbitration provisions hidden in online purchase

agreements. These types of restrictive arbitration provisions should only be

enforced if it is clear that the parties agreeing to it were aware that they were

resultantly waiving their constitutional right to a jury trial. Where the provision

is buried within hyperlinks or in tiny print, there is a high probability the person

was not aware of the arbitration provision, and it is therefore unenforceable.

However, historically courts have reviewed arbitration agreements with

far less stringent standards. Frequently, arbitration agreements waiving a

person’s right to a jury trial in an online contract are inconspicuous and

contained in a hyperlink separate from the binding agreement action, for

example, by clicking an “I agree to the terms and conditions” or simply by

clicking “continue” to use the webpage. These contracts often do not require

a person’s signature, and even if they do, the signature is not in direct relation

to the waiver of the right to a jury trial. Furthermore, many times these

contracts do not even require acknowledgment that the person has reviewed

the agreement before making it a binding contract.

In fact, a much more rigorous process is observed when a criminal

defendant waives their right to a jury trial. That waiver must be “approv[ed]

by a judge of the court in which the case is pending[.]” Commonwealth v.

Smith, 181 A.3d 1168, 1175 (Pa. Super. 2018) (citation omitted). Notably,

Rule 620 provides that a waiver is valid only after “[t]he judge [] ascertain[s]

from the defendant whether this is a knowing and intelligent waiver, and such

• 11 - J-A30025-25

colloquy shall appear on the record. The waiver shall be in writing, made a

part of the record, and signed by the defendant, the attorney for the

Commonwealth, the judge, and the defendant’s attorney as a witness.”

Pa.R.Crim.P. 620.

We find that it is imperative that not only in criminal matters but also in

the civil arena that a person be fully informed of their constitutional right to a

jury trial and the effect of waiving that right. Certainly, an on-the-record

colloquy is not required in civil contract matters as in criminal, but it is

essential that the waiver be clearly described and evident that the person

waiving that right understand the right they are giving up by agreeing to the

contract.

Mindful of this, we stress that, in today’s day and age, online users are

pressured on a daily basis to form contracts with companies through their

computer or smart phone. These contracts cover a wide spectrum from long-

term binding contracts such as mortgage loans to consumer sales, to

registration for food delivery or ride share services. These “[d]ifferent Internet

products lead to different expectations and applications of legal doctrine.” Paul

J. Morrow, Esq., Cyberlaw: The Unconscionability/Unenforceability of

Contracts (Shrink-wrap, Clickwrap, and Browse-wrap) on the Internet: A

Multidistrict Analysis Showing the Need for Oversight, 11 U.P.H. J. Tech. L.

Pol’y 7 (Spring 2011). Certain corporations use these online contracts with

• 12 - J-A30025-25

veiled terms to bind unsophisticated, uninformed, and unsuspecting

customers to arbitration agreements from the convenience of their couch.

Basically, the elements of a valid contract in Pennsylvania are an “offer,

acceptance, consideration or mutual meeting of the minds.” Gasbarre

Products, Inc. v. Smith, 270 A.3d 1209, 1218 (Pa. Super. 2022) (citation

and internal quotation marks omitted). “[T]here must be a meeting of the

minds; the very essence of an agreement is that the parties mutually assent

to the same thing.” Accu-Weather, Inc. v. Thomas Broadcasting Co., 625

A.2d 75, 78 (Pa. Super. 1993) (internal quotation marks, ellipsis, and citation

omitted). “Whether particular conduct expresses an offer and acceptance

must be determined on the basis of what a reasonable person in the position

of the parties would be led to understand by such conduct under all of the

surrounding circumstances.” Temple University Hosp., Inc. v. Healthcare

Management Alternatives, Inc, 764 A.2d 587, 593 (Pa. Super. 2000)

(citation and internal quotation marks omitted).

The question presented here must therefore focus on whether Duffy

took any action that manifested his assent to be bound by the terms and

conditions on Dolly’s website. We will consider what a reasonable person in

his position would understand by using Dolly’s website.

Dolly relies upon federal case law, which we remind Dolly is not binding

upon this Court. We note that federal courts frequently rely upon whether an

online contract is a “clickwrap” or “browsewrap” agreement in determining if

• 13 - J-A30025-25

the online contract is binding upon a party. However, there are at least four

different types of online consumer contracts (browsewrap, clickwrap,

scrollwrap, and sign-in wrap) as outlined by the Supreme Court of Maine:

“Browsewrap” exists where the online host dictates that assent is
given merely by using the site. “Clickwrap” refers to the assent
process by which a user must click “I agree,” but not necessarily
view the contract to which [he or] she is assenting. “Scrollwrap”
requires users to physically scroll through an internet agreement
and click on a separate “I agree” button in order to assent to the
terms and conditions of the host website. “Sign-in wrap” couples
assent to the terms of a website with signing up for the use of the
site’s services.

Of these four online contract types, only a scrollwrap agreement
requires a user actually to view (albeit not necessarily read) the
terms of the online contract before manifesting assent. Courts
have consistently found scrollwrap agreements enforceable
because they present the consumer with a realistic opportunity to
review the terms of the contract and they require a physical
manifestation of assent.

Sarchi v. Uber Technologies, Inc., 268 A.3d 258, 266 (Me. 2022)

(formatting altered; brackets, quotation marks, ellipsis, and citations omitted;

emphasis in original).

The agreement here is a combination of sign-in wrap and clickwrap as

Dolly’s website did not require Duffy to scroll through the terms by clicking

agree. However, Duffy could not proceed with the sign-up process without

clicking a box that stated “By checking this box I accept the Dolly Terms of

Service” and thereby binding himself to the waiver of jury trial in the event of

a dispute. We must determine if this type of agreement passes constitutional

muster under the Pennsylvania Constitution.

• 14 - J-A30025-25

As we explained above, the Pennsylvania Constitution provides “Trial by

jury shall be as heretofore, and the right thereof remain inviolate.” Pa.Const.

art 1, § 6. Our Supreme Court has previously held “[t]he right to a jury trial

in a civil action is a fundamental aspect of our system of law.” Bruckshaw v.

Frankford Hosp. of City of Philadelphia, 58 A.3d 102, 109 (Pa. 2012)

(citation omitted). The Court has further stated “we have interpreted the

inviolability of the right to mean freedom from substantial impairment[.]”

Commonwealth v. Noel, 104 A.3d 1156, 1168 (Pa. 2014) (internal

quotation marks and citation omitted).

We continue to hold that the constitutional right to a jury trial should be

afforded the greatest protection under the courts of this Commonwealth. We

therefore find a strict burden of proof is necessary to demonstrate a person’s

unambiguous manifestation of assent to arbitration. This requires: (1)

explicitly stating 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.

It is important to note that the average internet user would find the

term arbitration ambiguous. Without a definition of its meaning, the average

• 15 - J-A30025-25

internet user could think that arbitration is simply another step in the litigation

process that does not require waiving their constitutional right to a jury trial.

“Both parties [to a contract] need correct information and willing

acquiescence.” Paul J. Morrow, Esq., Cyberlaw: The

Unconscionability/Unenforceability of Contracts (Shrink-wrap, Clickwrap, and

Browse-wrap) on the Internet: A Multidistrict Analysis Showing the Need for

Oversight, 11 U.P.H. J. Tech. L. Pol’y 7 (Spring 2011). This is the reason

arbitration must be defined within the arbitration agreement and why the

waiver of one’s right to a jury trial must be prominently displayed.

This standard has not been met here. Duffy never clicked on the

hyperlink providing the terms of service. Dolly’s website and application

screen does not explicitly state that the consumer is waiving their right to a

jury trial when they agree to the terms of service. Duffy was able to complete

his registration process without being fully informed of the waiver of his right

to a jury trial. The hyperlink that opens the terms of service hides the

arbitration agreement within the middle of the document and does not place

it in prominently in the document. Further, the arbitration provision never

defines arbitration and does not state explicitly that a user is waiving his right

to trial by jury. Therefore, it is clear Duffy was never informed in an explicit

and upfront manner that he was waiving his constitutional right to seek

damages through a jury trial.

• 16 - J-A30025-25

If this case involved a confession of judgment, this Court would find that

the circumstances here mandate an opening or striking of the judgment

because of the discreet use of the provision in question. We would hold a

criminal defendant did not knowingly and intelligently waive his right to a jury

trial on these facts as well. We cannot find any reason why a similar analysis

should not apply in a case such as this where the constitutional right to a jury

trial is simply clicked away without any protection that our law has so

frequently applied in other circumstances.

We therefore find the trial court did not err in overruling Dolly’s

preliminary objections. 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. As such, the order of the trial court is affirmed.

Order affirmed.

President Judge Lazarus joins the opinion.

Judge Sullivan concurs in the result.

Date: 3/3/2026

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