1The parties have stipulated and I have ordered that defendant’s obligation to respond to

plaintiff’s motion for class certification is stayed pending my decision with respect to defendant’s

motion to compel arbitration.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ADAM SCHWARTZ : CIVIL ACTION

:

v. :

:

COMCAST CORP. : NO. 05-2340

O’NEILL, J. NOV. 8, 2006

 

MEMORANDUM

Plaintiff Adam Schwartz filed a class action complaint on April 18, 2005 in the Court of

Common Pleas for Philadelphia County alleging that defendant Comcast Corporation breached

its contract with plaintiff, was unjustly enriched, and violated Pennsylvania’s Consumer

Protection Law by failing to provide high speed internet service to various businesses and

residents in Pennsylvania in violation of its express and implied promises: (1) to provide “service

that was ‘always on’, 24 hours a day, 7 days per week, 365 days per year”; (2) not to charge for

services not rendered; and (3) in the event payment was received for services not rendered, to

issue refunds. Defendant filed a notice of removal under the Class Action Fairness Act, 28

U.S.C. § 1332(d). Having denied plaintiff’s motion to remand, I now turn to defendant’s motion

to compel arbitration,1 plaintiff’s response, defendant’s reply, plaintiff’s supplemental

memorandum, and defendant’s response thereto. 

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 1 of 9
2The subscriber agreement also is available to all of defendant’s subscribers via

defendant’s website, comcast.net, at http://www.comcast.net/terms/subscriber.jsp. 

3Section 9 of the subscriber agreement, entitled “Binding Arbitration,” discusses at length

the parties’ agreement with respect resolving disputes regarding service. Section 9(a) provides:

“If you have a Dispute . . . with Comcast that cannot be resolved through the informal dispute

resolution process described in your Welcome Kit from Comcast, you or Comcast may elect to

arbitrate that Dispute in accordance with the terms of this Section rather than litigate the Dispute

in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a

court by a judge or jury.”

Section 9(b) defines the term “Dispute” broadly to mean:

2

Plaintiff Adam Schwartz is or was a customer of defendant Comcast’s high speed internet

service. Plaintiff alleges in his complaint that defendant breached its contract with him and all

class members by providing only intermittent high speed internet services between and including

April 7, 2005 and April 17, 2005. During this eleven day period, plaintiff and all class members

could not access the internet, and/or their access was interrupted and/or broken. Specifically,

plaintiff and all class members could not enjoy internet service, upload or download information,

engage in internet commerce, or send or receive email. Plaintiff and all class members paid for

these services in advance. Plaintiff asserts that the value of the lost services is between $7.00

and $15.00 depending on each class member’s plan.

On September 20, 2003, a Comcast technician installed high speed cable internet at

plaintiff’s residence in Wayne, Pennsylvania. Defendant alleges that because it is standard

procedure for Comcast technicians to provide subscribers with a copy of the current version of

defendant’s high speed internet service subscriber agreement2 in connection with his service,

plaintiff was a party to defendant’s subscriber agreement and thus agreed to arbitrate all claims or

disputes arising out of defendant’s provision of internet services.3 

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 2 of 9
any dispute, claim or controversy between you and Comcast that has accrued as of

the Effective Date or any dispute, claim or controversy that accrues after the

Effective Date, whether based in contract, statute, regulation, ordinance, tort

(including, but not limited to, fraud, misrepresentation, fraudulent inducement,

negligence or any other intentional tort), or any other legal or equitable theory.

Additionally, Section 9(b) states:

“Dispute” means any dispute, claim or controversy concerning the validity,

enforceability and scope of this Section (with the exception of the limitations

and/or provisions provided in subparts 9(e)(2), (h) and (I) below), including any

claims that this Section is unenforceable because it violates public policy or the

doctrine of unconscionability. Moreover, "Dispute" is to be given the broadest

possible meaning that will be enforced.

Section 9(d) provides the procedures for arbitration and states, in relevant part: “Because

the service provided to you by Comcast concerns interstate commerce, the Federal Arbitration

Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. However,

applicable federal law or the law of the state where you receive the service from Comcast may

apply to and govern the substance of any Disputes.”

Section 9(e)(2) creates a one year limitations period and provides that all arbitrations

between defendant and its subscribers must be litigated on an individual basis:

ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY

NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY

CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS-ACTION OR

CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT

IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE

GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL),

OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED.

However, Section 9(I) permits certain claims to be heard in small claims court or a court

of general jurisdiction. Finally, Section 9(h) provides:

If any clause within this Section (other than the class action waiver clause

identified in Section 9(e)(2) above) is found to be illegal or unenforceable, that

clause will be severed from this Section, and the remainder of the Section will be

given full force and effect. If the class action waiver clause is found to be illegal

or unenforceable, then Section 9 will be unenforceable in its totality, and the

Dispute will be decided by a court. IN THE EVENT THAT THIS ENTIRE

SECTION IS DETERMINED TO BE ILLEGAL OR UNENFORCEABLE FOR

ANY REASON, OR IF A CLAIM IS BROUGHT IN A DISPUTE THAT IS

3

Plaintiff alleges that he never received a copy of the subscriber agreement, as it was never

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 3 of 9
FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THIS

SECTION, YOU AND COMCAST HAVE EACH AGREED TO WAIVE, TO

THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY.

4

attached to any work order or billing statement, nor was it mailed to him. In his complaint,

plaintiff references a subscription agreement, see Complaint at ¶ 7 (“Comcast’s promises were

set forth in its subscription agreements and in its communications with the class. They were also

implied.”), but he did not specify the document to which he was referring. Nor did plaintiff

attach that document to his complaint, as he claims not to have a copy. On September 11, 2004

plaintiff signed a Comcast work order with respect to the termination of his cable television

service with defendant which contained the language, “I agree to continue to be bound by the

current Comcast Subscriber Agreement which constitutes the agreement between Comcast and

me for the services. If other non-installation work was provided, I agree to continue to be bound

by the current Comcast Subscriber Agreement.” However, defendant has not presented evidence

that it provided notice to plaintiff of any subscriber agreement pertaining to high speed internet

service. Nor has defendant shown that plaintiff agreed to be bound by a subscriber agreement

pertaining to high speed internet service, as defendant has not produced evidence that plaintiff

signed a similar work order or any document pertaining to high speed internet service which

includes or references the subscriber agreement. Before compelling an unwilling party to

arbitrate, the court must “engage in a limited review to ensure that the dispute is arbitrable – i.e.,

that a valid agreement to arbitrate exists between the parties and that the specific dispute falls

within the substantive scope of that agreement.” PaineWebber, Inc., v. Hartmann, 921 F.2d 507,

511 (3d Cir. 1990), overruled by implication on other grounds by Howsam v. Dean Witter

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 4 of 9
5

Reynolds, Inc., 537 U.S. 79, 85 (2002). The party seeking arbitration bears the burden of

establishing a valid agreement to arbitrate. Goldstein v. Depository Trust Co., 717 A.2d 1063,

1067 (Pa. Super. Ct. 1998). If there is any doubt concerning the formation of the arbitration

agreement, “the matter, upon a proper and timely demand, should be submitted to a jury. Only

when there is no genuine issue of fact concerning the formation of the agreement should the court

decide as a matter of law that the parties did or did not enter into such an agreement.” Par-Knit

Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980). Further, courts must “give

to the opposing party the benefit of all reasonable doubts and inferences that may arise.” Id. In

other words, under Pennsylvania law the standard of review for determining whether the parties

entered into a valid agreement to arbitrate “is quickly recognized as the standard used by district

courts in resolving summary judgment motions pursuant to Fed. R. Civ. P. 56(c).” Id. at 54 n.9. 

Before directing the parties to proceed with arbitration, a court must first ascertain

whether the parties entered a valid agreement to arbitrate. Alexander v. Anthony Int’l, L.P., 341

F.3d 256, 264 (3d Cir. 2003). “[S]uch agreements are upheld only where it is clear that the

parties have agreed to arbitrate in clear and unmistakable manner.” Quiles v. Fin. Exch. Co., 879

A.2d 281, 287 (Pa. Super. Ct. 2005) citing Emmaus Mun. Auth. v. Eltz, 204 A.2d 926, 927 (Pa.

1964). That is, “[t]here must be evidence sufficient to establish the parties’ consent to

arbitration.” Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1512 (3d Cir. 1994). 

To determine whether the parties entered into a valid arbitration agreement, courts look to

the relevant state law of contracts. Alexander, 341 F.3d at 264. Under Pennsylvania law, it is

well-established that when contractual language is clear and unambiguous any rights and

obligations expressly set forth in the contract must be recognized and enforced. See Musselman

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 5 of 9
6

v. Sharswood Bldg. & Loan Ass’n, 187 A. 419, 521 (Pa. 1936) (“Where the language used is

plain and unambiguous, the rights of the parties must be determined by the provisions of the

instruments wherein they committed their agreement to writing.”); see also Hutchison v.

Sunbeam Coal Corp., 519 A.2d 385, 388 (Pa. 1986) (“The law will not imply a different contract

than that which the parties have expressly adopted.”). It is also well-established under

Pennsylvania law that “contracting parties are normally bound by their agreements, without

regard to whether the terms thereof were read and fully understood and irrespective or whether

the agreements embodied reasonable or good bargains.” Simeone v. Simeone, 581 A.2d 162,

165 (Pa. 1990). 

Plaintiff argues that I should not compel arbitration pursuant to the subscriber agreement

because: (1) there was no valid agreement or meeting of the minds to arbitrate such a dispute; (2)

the dispute falls outside the scope of the arbitration provisions; and (3) the subscriber agreement

is an unconscionable contract of adhesion. Because I find that defendant has not met its burden

of establishing a valid agreement to arbitrate, I will deny defendant’s motion to compel

arbitration without reaching the questions of scope and unconscionability. 

Plaintiff argues that there was no valid agreement or meeting of the minds to arbitrate this

dispute because he had no knowledge that the subscriber agreement existed. In support of this

argument, plaintiff alleges that he did not sign the subscriber agreement, he did not know that the

subscriber agreement was on the internet, and he did not receive a copy of the subscriber

agreement with his bills. In its attempt to establish that plaintiff indeed was aware of the

subscriber agreement and the arbitration provisions contained therein, defendant offers a

boilerplate subscriber agreement and evidence of a policy for all Comcast technicians to hand

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 6 of 9
7

this boilerplate agreement to all consumers prior to service installation. Defendant further offers

plaintiff’s signature under a reference to the subscriber agreement on a work order pertaining to

cable television service. 

Giving plaintiff the benefit of all reasonable doubts and inferences and considering the

evidence set forth by defendant, I conclude that there is insufficient evidence of a clear and

unmistakable agreement between these two parties to arbitrate claims and disputes arising out of

high speed internet service. Though the language in the boilerplate subscriber agreement

establishing an arbitration agreement between contracting parties is clear and unambiguous,

defendant has not established that plaintiff ever received notice of any subscriber agreement

pertaining to his high speed internet service. The existence of a policy to hand the subscriber

agreement to all consumers does not constitute proof of actual notice to this particular plaintiff. 

Also, that plaintiff signed a Comcast work order on September 11, 2004 under language

referencing a subscriber agreement is of no consequence here, as that work order pertained to the

uninstallation of plaintiff’s cable television service and made no reference to plaintiff’s high

speed internet service. 

Defendant also argues that plaintiff admitted in his complaint, his amended complaint,

and his motion for class certification that he was a party to the subscriber agreement. Though

plaintiff referred generally to a “subscription agreement” in those documents, plaintiff never

specified the document to which he was referring. Nor did plaintiff attach a copy of the

document to which he referring. Defendant has not produced evidence that in any way

contradicts plaintiff’s assertion that he had no knowledge of Comcast’s high speed internet

service subscriber agreement, e.g., plaintiff signed a work order or any document pertaining to

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 7 of 9
8

high speed internet service which includes or references that document. Giving plaintiff the

benefit of all reasonable doubts and inferences, I cannot conclude that plaintiff’s non-specific

references to a “subscription agreement” constitutes an admission that he was a party to

Comcast’s subscriber agreement and evinces plaintiff’s clear, express, and unequivocal intent to

arbitrate his claims. 

Because defendant has failed to meet its burden of establishing a valid agreement to

arbitrate, defendant’s motion will be denied. The parties should resume briefing on the motion

for class certification. 

An appropriate Order follows.

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 8 of 9
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ADAM SCHWARTZ : CIVIL ACTION

:

v. :

:

COMCAST CORP. : NO. 05-2340

ORDER

AND NOW, this 8th day of November 2006, upon consideration of defendant’s motion to

compel arbitration and plaintiff’s brief in opposition thereto, and for the reasons set forth in the

accompanying memorandum, it is ORDERED that defendant’s motion to compel arbitration is

DENIED. Defendant will respond to plaintiff’s motion for class certification within 30 days

from date.

s/Thomas N. O’Neill, Jr. 

THOMAS N. O’NEILL, JR., J.

Case 2:05-cv-02340-TON Document 43 Filed 11/08/06 Page 9 of 9