                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2007

Schwartz v. Comcast Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4855




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 06-4855
                                   ____________

                                ADAM SCHWARTZ

                                         v.

                           COMCAST CORPORATION,

                                         Appellant
                                   ____________

                  On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 05-cv-02340)
                  District Judge: Honorable Thomas N. O’Neill, Jr.
                                    ____________

                            Argued October 24, 2007
            Before: FISHER, STAPLETON and COWEN, Circuit Judges.

                              Filed: November 30, 2007

Michael W. McTigue, Jr. (Argued)
Drinker, Biddle & Reath
18th & Cherry Streets
One Logan Square
Philadelphia, PA 19103
      Attorney for Appellant

Ronald J. Smolow (Argued)
Smolow & Landis
204 Two Neshaminy Interplex
Trevose, PA 19053
      Attorney for Appellee
                                       ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Adam Schwartz sued the Comcast Corporation, alleging that Comcast breached its

contract with him by failing to provide high-speed internet services as promised.

Comcast filed a motion to compel arbitration. The District Court denied the motion,

concluding that Comcast had not established that there was a valid agreement to arbitrate.

Comcast now appeals. For the reasons set forth below, we will reverse and remand the

case to the District Court.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       In 2003, Schwartz became a customer of Comcast. At this time, Comcast had a

policy of providing a “welcome packet,” including a copy of its “Subscriber Agreement,”

to new customers of its internet services. Schwartz says he did not receive a copy of the

Subscriber Agreement when he began receiving service or at any other time.

       Comcast’s Subscriber Agreement contains an arbitration clause that specifies, “If

you and Comcast are unable to resolve informally any claim or dispute related to or

arising out of this Agreement or the services provided, you and Comcast agree to binding


                                              2
arbitration . . . .” The Agreement also states that “[a]ll parties to the arbitration must be

individually named. There shall be no right or authority for any claims to be arbitrated on

a class action or consolidated basis . . . .”

       In 2004, Schwartz decided to cancel his Comcast cable television service, but his

internet service remained unchanged. When a technician came to his home to disconnect

the cable service, Schwartz signed a Comcast Work Order that contained the following

language above the signature line: “If other non-installation work was provided, I agree

to continue to be bound by the current Comcast Subscriber Agreement.” Printed near the

center of the form was the notation “O/L PRO SERV,” which referred to Schwartz’s

“Online Pro” internet service.

       During a ten-day period in April 2005, Schwartz’s Comcast internet service was

interrupted and/or unavailable. The Comcast web site has contained or does contain

language indicating that its high-speed internet service is “always on.”

       Schwartz filed a state law class action against Comcast in the Court of Common

Pleas of Philadelphia County, Pennsylvania, in April 2005, alleging that Comcast

breached its contract and violated the Pennsylvania Consumer Protection Law. Comcast

removed the action to federal court under 28 U.S.C. § 1332(d) (the Class Action Fairness

Act). Schwartz moved to remand the case, arguing that the District Court lacked

jurisdiction under § 1332(d). The District Court denied Schwartz’s motion.1


       1
       We conclude that the District Court properly exercised jurisdiction. Section
1332(d) provides that a district court has original jurisdiction over class actions where

                                                3
       Comcast filed a motion to compel arbitration. In his response to the motion,

Schwartz argued that (1) there was no arbitration agreement, (2) the dispute falls outside

the scope of the arbitration provision, and (3) the Subscriber Agreement is an

unconscionable contract of adhesion. Without holding a hearing, the District Court

denied the motion, finding that Comcast had failed to establish a valid agreement to

arbitrate. The Court did not reach Schwartz’s other arguments. Comcast timely appealed

the decision.

                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and 9 U.S.C. § 16(a)(1)

(the Federal Arbitration Act, or FAA). “We exercise plenary review over questions

regarding the validity and enforceability of an agreement to arbitrate. However, to the

extent that the district court predicated its decision on findings of fact, our standard of

review is whether those findings were clearly erroneous.” Lloyd v. Hovensa, LLC, 369

F.3d 263, 273 (3d Cir. 2004).




there is minimal diversity between the parties, the amount in controversy exceeds
$5 million, and there are at least 100 class members. Both parties conceded that these
criteria were met. However, Schwartz claimed that the District Court was either required
or permitted to refrain from exercising jurisdiction under the “home state controversy,”
“local controversy,” or “interests of justice” exceptions. Each of these exceptions
requires that a certain proportion of the plaintiff class must be from the original filing
state. The District Court found that fewer than one third of the plaintiff class were
citizens of Pennsylvania; this proportion neither requires nor allows a district court to
decline to exercise jurisdiction. 28 U.S.C. § 1332(d)(3), (4).

                                               4
       The District Court correctly determined that the arbitration agreement at issue in

this case is governed by the FAA. The FAA provides that arbitration agreements “shall

be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity

for the revocation of any contract.” 9 U.S.C. § 2. The threshold question of the existence

of an arbitration agreement is decided by applying ordinary state law contract principles.

China Minmetals Materials Imp. and Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 290 (3d

Cir. 2003).

       When ruling on a motion to compel arbitration, the District Court uses a standard

analogous to the summary judgment standard. Par-Knit Mills, Inc. v. Stockbridge

Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980). “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.” Id. The party opposing

the motion receives “the benefit of all reasonable doubts and inferences that may arise.”

Id. If there is a genuine issue of fact, the FAA directs the District Court to hold a trial to

determine whether an arbitration agreement exists. 9 U.S.C. § 4.

                                              III.

       The existence of the arbitration agreement is determined under the law of

Pennsylvania, the state where the internet services were provided. Pennsylvania contract

law assigns to the party seeking arbitration “the burden of demonstrating that a valid

agreement to arbitrate exists between the parties.” Goldstein v. Depository Trust Co., 717

A.2d 1063, 1067 (Pa. Super. Ct. 1998). Pennsylvania law “favor[s] [the] enforceability of

                                               5
agreements to arbitrate . . . . However, such 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).

       Comcast’s evidence of its consistent practice regarding delivery of subscription

agreements and of the conduct of the parties in this case constitute prima facie evidence

that Schwartz was aware that the services he accepted were being offered pursuant to a

subscription agreement. In response, Schwartz has offered no evidence to the contrary.

Indeed, the allegations of his complaint acknowledge such awareness. Schwartz denies

only that he received a copy of his subscription agreement. This is not sufficient to create

a material dispute of fact. Whether or not Schwartz received a copy of the subscription

agreement, he could not accept services he knew were being tendered on the basis of a

subscription agreement without becoming bound by that agreement. RESTATEMENT

(SECOND) OF CONTRACTS § 23 (1981) (“[W]here an offer is contained in a writing [a

party] may, without reading the writing, manifest assent to it and bind himself without

knowing its terms . . . . [A]n offeror or offeree who should be aware of [the terms of a

writing] may be bound in accordance with them if he manifests assent.”).

       Comcast’s evidence of its policy to provide the Subscriber Agreement to new

customers was relevant to show that Schwartz did in fact receive a copy. Specifically,

Comcast provided a declaration and deposition testimony by Vice President Sharon




                                             6
Desmond describing the policy.2 The Pennsylvania and Federal Rules of Evidence both

state:

         Evidence of . . . the routine practice of an organization, whether
         corroborated or not and regardless of the presence of eyewitnesses, is
         relevant to prove that the conduct of the . . . organization on a particular
         occasion was in conformity with the . . . routine practice.

Fed. R. Evid. 406; Pa. R. Evid. 406. The District Court found that evidence of Comcast’s

policy “does not constitute proof of actual notice to this particular plaintiff.” This

conclusion was erroneous because under state and federal rules, evidence of the policy

does constitute proof of actual notice to Schwartz. It is clear that the evidence tends to

show delivery. Comcast presented evidence that it provided the Subscriber Agreement to

all new customers, including Schwartz.

         The District Court agreed with Schwartz that the phrase “O/L PRO SERV” did not

sufficiently notify Schwartz that the September 11, 2004 Work Order pertained to his

internet service as well as his cable television service. However, it was clear that

Schwartz’s Comcast internet service and Comcast cable television were provided by the

same company, or by subsidiaries of the same parent company. Therefore, the language

on the Work Order (“If other non-installation work was provided, I agree to continue to

be bound by the current Comcast Subscriber Agreement . . .”) could have referred only to



         2
        Schwartz argues that Desmond’s testimony was inadmissible because she did not
have personal knowledge of the practices she described. However, he did not make this
argument during the proceedings in the District Court, and thus it is waived. Gass v.
Virgin Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002).

                                                7
Schwartz’s remaining Comcast service, his internet service. The “O/L PRO SERV”

notation was an indication of this fact. Contrary to the District Court’s conclusion, the

Work Order put Schwartz on notice that he was bound by the Subscriber Agreement.

       The parties agree that their business relationship was governed by some form of

agreement. However, Comcast argues that the terms of the agreement were those of the

Subscriber Agreement, while Schwartz maintains that the only contractual term of which

he was aware was Comcast’s promise to provide internet service that was “always on.”3

Comcast, as the party seeking arbitration, bears the burden of showing a valid agreement

to arbitrate. Goldstein, 717 A.2d at 1067. Comcast argues that both parties performed

pursuant to the Subscriber Agreement, with Comcast providing the internet service and

Schwartz paying the monthly fee. We conclude that the conduct of the parties shows that

their relationship was governed by the Subscriber Agreement.

       The Subscriber Agreement is activated when internet service is installed, because

it states: “The term of this Agreement shall commence upon the installation of your

Service . . . .” Schwartz’s contention, that the only agreement he was aware of was the



       3
         Schwartz denies that he was a party to Comcast’s Subscriber Agreement.
However, in his pleadings, he states that he and other members of the alleged class of
plaintiffs are parties to a “subscription agreement” with Comcast, that the agreement’s
terms are unconscionable, and that Comcast breached the contract. His pleadings also
include statements that “Comcast’s promises were set forth in its subscription
agreements” and “Plaintiff does not have a copy of his subscription agreement and it is
therefore not attached.” Thus, Schwartz was aware of some form of contractual
agreement with Comcast that does not consist solely of a promise to provide internet
service that is “always on.”

                                             8
“always on” promise, is nonsensical. For example, this “agreement” contains no payment

terms, but Schwartz made regular monthly payments to Comcast. Even resolving all

doubts and inferences in Schwartz’s favor, it is impossible to infer that a reasonable adult

in Schwartz’s position would believe that his contract with Comcast consisted entirely of

a single promise that the service would be “always on.” Comcast offered internet service

under the terms of its Subscriber Agreement, and Schwartz accepted the service, so the

terms of the contract are provided by the Subscriber Agreement.

       The terms of the Subscriber Agreement were available to Schwartz at all times

because the Agreement was posted on Comcast’s web site. Schwartz argues that the

contract was too difficult to find, but the record demonstrates that the Agreement is

available to all of Comcast’s subscribers via its website. Under Pennsylvania law, failure

to read a contract does not excuse a party from being bound by its terms. Simeone v.

Simeone, 581 A.2d 162, 165 (Pa. 1990) (“Contracting parties are normally bound by their

agreements, without regard to whether the terms thereof were read and fully understood

and irrespective of whether the agreements embodied reasonable or good bargains.”).

       It is true that in some cases, a party is excused from the terms of a contract where

he never had access to the contract and thus could not make himself aware of its terms.

Quiles, 879 A.2d at 287. However, in this case, the terms of the contract were available

to Schwartz via the web site, and thus they are binding, despite the fact that he was

unaware of them.



                                             9
       Comcast has demonstrated that Schwartz was aware of a subscription agreement,

which included an arbitration clause. Schwartz has failed to rebut this evidence, and we

conclude that as a matter of law, there was a valid agreement to arbitrate. However, when

the District Court determined that there was no arbitration agreement, it did not reach the

questions of whether the dispute between Schwartz and Comcast falls outside the scope

of the arbitration provision and whether the Subscriber Agreement is an unconscionable

contract of adhesion. As a result, these questions must now be addressed.

                                            IV.

       For the reasons set forth above, we will reverse the District Court on the question

of the existence of the arbitration agreement and remand for consideration of the scope of

the arbitration agreement and whether the Subscriber Agreement was an unconscionable

contract of adhesion.




                                            10
