Background
Joshua Miller filed a proposed class action against Festival Fun Parks, which operates Kennywood, under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law and for unjust enrichment. Miller alleged that the park knew its Steel Curtain roller coaster would be unavailable during the 2024 season but withheld that information to avoid losing season-pass sales. He bought a Gold Season Pass before learning the attraction would be closed.
Kennywood moved to compel arbitration based on online Terms of Use. During checkout, Miller twice had to select boxes containing purchase disclosures. Links beneath the boxes included “Terms&Conditions,” but the checkbox language did not say that selecting the box accepted those linked terms, required arbitration, or waived a jury trial. A customer could complete the purchase without opening the link. The linked document contained ten pages of small, single-spaced text; its arbitration and class-action-waiver section appeared on pages seven and eight.
The Allegheny County court denied arbitration under Pennsylvania decisions requiring clear notice when an online agreement waives the constitutional right to a jury trial. Kennywood appealed, arguing ordinary contract principles established assent and that the Federal Arbitration Act preempted any state rule imposing special burdens on arbitration.
The Court’s Holding
The Superior Court affirmed. Judge Stabile concluded that the checkout design did not provide the reasonably conspicuous notice and unambiguous manifestation of assent needed to form an arbitration agreement. Although the Terms of Use link was available, the mandatory checkbox spoke about ticket validity, identification, refunds, resale, attraction availability, and park policies. It did not tell purchasers that clicking accepted the separately linked Terms of Use, much less that those terms surrendered court and jury rights.
The panel applied the Pennsylvania Superior Court’s online-contract decisions, including Chilutti, Duffy, and Pierce. Those cases treat jury waiver as a serious contractual act and require the purchase or registration screen itself to communicate the legal consequence with adequate clarity. Merely placing an arbitration clause in a linked document that the consumer need not open did not establish informed assent.
The court also rejected Federal Arbitration Act preemption. In its view, Pennsylvania was not singling out arbitration for hostility. State law also subjects other contractual waivers of constitutional rights, including warrants to confess judgment, to demanding notice and conspicuousness requirements. The rule therefore placed online arbitration clauses on the same plane as comparable agreements rather than imposing an arbitration-only disability. A delegation-clause argument raised for the first time in a reply brief was waived.
Key Takeaways
- A terms-and-conditions hyperlink alone may not bind a Pennsylvania consumer to arbitration when the checkout box does not say that clicking accepts the linked terms.
- Online sellers should disclose arbitration and jury waiver clearly on the transaction screen, not only deep inside a separate document.
- Pennsylvania’s heightened notice approach survives a Federal Arbitration Act challenge when comparable constitutional-right waivers receive similar treatment.
- A party relying on a delegation clause must timely preserve the argument that an arbitrator should decide formation or enforceability.
Why It Matters
The nonprecedential opinion is nevertheless important for Pennsylvania consumer, class-action, and e-commerce litigation because it applies the Superior Court’s developing online-contract framework to a familiar checkout flow. Businesses using browsewrap or hybrid clickwrap should audit the words beside the required button or checkbox. The screen should state that the user agrees to linked terms and should conspicuously identify arbitration and jury waiver before payment can proceed.
For consumer counsel, Miller underscores that the existence of a hyperlink and a completed purchase do not end the formation inquiry. Screenshots, click paths, font treatment, link placement, mandatory fields, and the exact language presented at each step can determine whether a dispute stays in court. The ruling also shows that a preemption defense requires comparison with Pennsylvania’s treatment of analogous non-arbitration waivers, not simply invocation of the federal policy favoring arbitration.
Commercial litigators should preserve the formation, scope, delegation, and preemption issues separately. A broad delegation clause inside disputed terms does not necessarily prove the consumer agreed to delegate the gateway dispute, and an argument first introduced in a reply brief may never be reached. Transaction designers can reduce that litigation risk with a short, direct disclosure and an affirmative acceptance tied to the linked agreement.