                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 18-2982
                                         ___________

                              MARIA JACQUELINE DICENT,
                                                  Appellant

                                               v.

                                 KAPLAN UNIVERSITY
                         ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 3-17-cv-01488)
                        District Judge: Honorable Robert D. Mariani
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     January 3, 2019
                Before: KRAUSE, SCIRICA and NYGAARD, Circuit Judges

                               (Opinion filed: January 10, 2019)
                                        ___________

                                          OPINION *
                                         ___________

PER CURIAM

         Maria Jacqueline Dicent appeals the District Court’s order granting Kaplan

University’s (Appellee) motion to dismiss and compel arbitration. For the following

reasons, we will affirm.


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Because the parties are familiar with the background of this case, and it is

thoroughly recited in the Magistrate Judge’s Report and Recommendation (R&R)

adopted by the District Court, we will revisit the facts only briefly. Dicent enrolled in

online courses offered by Appellee. As a part of the enrollment process, Dicent was

required to log in to an enrollment portal website, where she was asked to enter various

information necessary to become a student. After completing this process, the enrollment

portal generated an “Enrollment Packet” in a Portable Document Format (PDF), which

included all of the information Dicent had provided, and also included, among other

things, an Arbitration Agreement and Waiver of Jury Trial (Arbitration Agreement). The

Enrollment Packet PDF was electronically signed (e-signed) by Dicent.

       Dicent subsequently filed suit against Appellee for various causes of action.

Appellee moved to dismiss and compel arbitration, arguing Dicent’s claims fell within

the Arbitration Agreement Dicent had e-signed as part of her agreement to become a

student. Dicent argued that she did not e-sign the Arbitration Agreement; rather, she

maintained that Appellee never informed her of the Arbitration Agreement, and that

Appellee never had her permission to use her e-signature for the Arbitration Agreement.

       The issue was referred to a Magistrate Judge, who recommended granting the

motion to dismiss and compel arbitration based on his conclusion that Dicent had failed

to create a genuine issue of fact as to whether she assented to the Arbitration Agreement.

After considering Dicent’s objections, the District Court adopted the Magistrate Judge’s


constitute binding precedent.                2
R&R and entered an order to compel arbitration. The District Court held that Dicent’s

argument—which was offered without any supporting evidence—rested on the assertion

that her e-signature was used without her consent. Moreover, the District Court noted

that Dicent had acknowledged her participation in the enrollment process, in which an e-

signature was used in order for her to become a student. Thus, it concluded that Dicent’s

arguments were completely contrary to the undisputed facts that the Enrollment Packet

PDF contained the Arbitration Agreement, and that she e-signed the document.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. See Control Screening LLC v.

Tech. Application & Prod. Co. (Tecapro), HCMC-Vietnam, 687 F.3d 163, 166–67 (3d

Cir. 2012) (“Where, as here, the District Court has ordered the parties to proceed to

arbitration, and dismissed all the claims before it, that decision is final within the

meaning of [9 U.S.C.] § 16(a)(3)[.]” (internal quotations omitted)). “We exercise plenary

review over questions regarding the validity and enforceability of an agreement to

arbitrate.” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir.

2013) (quoting Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir. 2010)).

       When “assessing the motion to compel arbitration itself, we apply the standard for

summary judgment in Rule 56(a),” and thus we “view the facts and draw inferences in

the light most favorable to the nonmoving party.” Flintkote Co. v. Aviva PLC, 769 F.3d

215, 219 (3d Cir. 2014). “We apply this standard because [a] district court’s order

compelling arbitration is in effect a summary disposition of the issue of whether or not


                                               3
there had been a meeting of the minds on the agreement to arbitrate.” 1 Id. (quotation

marks and citations omitted). Indeed, arbitration is a matter of contract; thus, if a party

has not agreed to arbitrate, a court may not compel that party to arbitrate. Id. at 220.

Accordingly, we first consider “(1) whether there is a valid agreement to arbitrate

between the parties and, if so, (2) whether the merits-based dispute in question falls

within the scope of that valid agreement.” Id. (quotation marks and citation omitted).

         Here, the only issue presented to us on appeal is whether Dicent assented to the

Arbitration Agreement. 2 “To determine whether the parties agreed to arbitrate, we turn to

ordinary state-law principles that govern the formation of contracts.” Kirleis v. Dickie,

McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009) (internal quotation marks

omitted). In Pennsylvania, 3 “contract formation requires: (1) a mutual manifestation of

an intention to be bound, (2) terms sufficiently definite to be enforced, and (3)

consideration.” Id. Furthermore, the Pennsylvania Supreme Court has held that

arbitration agreements “should not be extended by implication” but rather parties should

agree to arbitration “in a clear and unmistakable manner.” See Emmaus Mun. Auth. v.


1
  As noted in margin of the District Court’s order, Dicent had notice that the summary
judgment standard would be used for assessing the motion to dismiss and compel
arbitration.
2
  The Magistrate Judge determined that the underlying claims in the complaint fall within
the scope of the Arbitration Agreement. Dicent did not object to this determination, nor
does she raise the issue on appeal.
3
    The parties agree that Pennsylvania state law governs here.

                                              4
Eltz, 204 A.2d 926, 927 (Pa. 1964). Pennsylvania, as most jurisdictions, recognizes the

e-signature as a valid means to register legal assent. See 73 Pa. Stat. Ann. §§ 2260.301–

.312. 4

          Dicent argues she “was tricked and not informed that she would be waiving jury

trial or was entering an arbitration agreement” when she was going through the

enrollment process. Appellant’s Br. 2. She maintains that she was not aware of the

Arbitration Agreement until Appellee submitted it in the District Court, and essentially

argues that Appellee, by including the Arbitration Agreement in the Enrollment Packet

PDF, was employing a deceptive practice. She argues that the “entire enrollment process

is deceitful and the Arbitration Agreement was just simply attached without her

knowledge and consent.” Appellant’s Br. 6. Thus, she contends that her e-signature is

not valid as it pertains to the Arbitration Agreement.

          We disagree. As the R&R thoroughly detailed, Appellee’s enrollment process

walks prospective students through a series of steps necessary to become a student, which

includes the production of an Enrollment Packet PDF that requires an e-signature to

finalize the prospective student’s relationship with Appellee. Included within this packet

is the clearly labeled Arbitration Agreement. In this case, Appellees presented evidence

of Dicent’s e-signature of the documents, and Dicent herself conceded that she e-signed

the Enrollment Packet PDF. Thus, we conclude that there is no genuine issue of material


4
 Thus, as the R&R notes, to the extent Dicent argues the Arbitration Agreement required
her physical pen and ink signature, she is mistaken.
                                             5
fact, as Dicent presented no evidence to contradict Appellee’s statements, other than to

generally argue that she was unaware of the Arbitration Agreement until Appellee

presented it to the District Court. 5 See Tinder v. Pinkerton Sec., 305 F.3d 728, 735–36

(7th Cir. 2002) (holding that the plaintiff’s averment in her affidavit—that she did not

recall seeing or reviewing the arbitration program brochure that was allegedly included

with her payroll check—did not raise a genuine issue of fact as to whether the brochure

was distributed to her, where the record also contained uncontroverted affidavits from the

defendant indicating that the brochure was definitely sent and presumably received with

her paycheck). The most reasonable inference we can draw from the evidence presented

is that Dicent simply did not read or review the Enrollment Packet PDF closely before

she e-signed it, which will not save her from her obligation to arbitrate. See Standard

Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983) (“[I]n the

absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense

and cannot justify an avoidance, modification or nullification of the contract or any

provision thereof.” (internal quotations and citation omitted) (brackets in original)).

       For the foregoing reasons, we will affirm the District Court’s judgment.



5
  Dicent maintains that she did produce evidence, arguing that her filing titled “Plaintiff’s
Answer to Defendant’s Motion to Dismiss and Compel Arbitration” was an affidavit
because she signed it. See Dkt. #15. Even if we did construe this filing as an affidavit, it
is not sufficient to create a genuine issue of material fact. See Kirleis, 560 F.3d at 161
(noting an “affiant must set forth specific facts that reveal a genuine issue of material
fact” and that “conclusory, self-serving affidavits are insufficient” for this purpose
(emphasis added) (internal quotations and citations omitted)).
                                               6
