Pennsylvania Court Follows Chilutti and Explains Reasons for Denying Motion to Compel Arbitration
Plaintiff Joshua Miller purchased a season’s pass to an amusement park online. He did so by clicking through a number of webpages. One page informed him that he was purchasing tickets and that “It is mandatory to accept these terms and conditions to complete the Purchase process.” What terms and conditions were referenced was a bit ambiguous, but there followed four boxes that Mr. Miller had to click in order to proceed. The boxes were labeled “Privacy Policy” “Operating Rules,” “Terms and Conditions,” and “ADA Accessibility.” He clicked all four boxes.
Five months after Mr. Miller bought his season’s passes, the defendant corporation, Festival Fun Parks, LLC (Festival Fun), which operates the Kennywood amusement park, announced that it was closing its Steel Curtain roller coaster. Mr. Miller sued on behalf of a purported class of similarly-situated fans of NFL-themed rollercoasters for unfair trade practices prohibited by statute. Festival Fun moved to compel arbitration, which was no doubt required under the company’s terms and conditions. The trial court denied that motion, and Festival Fun took an appeal. In Miller v. Festival Fun Parks, LLC, Judge Alan Hertzberg provided reasons for his ruling.
The opinion is brief. As we discussed previously here and here, in Chilutti v. Uber Technologies, Inc., the Superior Court noted that arbitration provisions such as Festival Fun’s deprive their counterparties of their right to a trial by jury, guaranteed under the Pennsylvania constitution. In order to establish waiver of that right, the party moving to compel arbitration must show: 1) explicit notice that agreement to terms and conditions entails a waiver of the right to a jury trial, and 2) a bold-faced, capitalize waiver provision at the top of the terms and conditions page for those who do click on the link.
Here, the webpage did not provide the notice required under the first part of the test. Festival Fun did not require their customers to click on the “terms and conditions” link, so it really doesn’t matter how prominently featured the waiver is on that page. The first prong of the Chilutti test is not met. As a result, Mr. Miller was not provided notice and therefore is not bound by Festival Fund’s terms and conditions and does not have to arbitrate.