Pennsylvania’s centuries-old jury right faces a modern test
The Pennsylvania Supreme Court announced that it will hear the case of Pacific Legal Foundation client Elliot Goldberg—a financial professional who is challenging the State’s authority to impose massive civil penalties without a jury trial.
At his core, Elliot Goldberg is a problem solver. His success as an entrepreneur can be attributed in large part to his keen ability to identify problems and create innovative solutions.
While he began his career working for other people in established companies, he soon discovered that corporate life moved too slowly for him. His brain moved quickly and he was constantly formulating new ideas he was eager to bring to life.
At the ripe age of 23, he quit his corporate job and struck out on his own.
Drawn to math and computer science, he first made a name for himself as an early computing entrepreneur, renting businesses access to computing power before personal computers were embedded in every facet of our lives. When PCs eventually made his business model obsolete, he moved on to software development, which included “Save Our Spreadsheets,” an early automatic-backup program available to users long before autosaving came into being. Later, he pivoted into direct-mail and data, an industry that was eventually undermined by technological changes and the aftermath of 9/11.
Every time the world caught up to one of Elliot’s ideas, he moved on and started a new business.
After his father’s death, his brother asked Elliot to help manage the family money—a favor that led him into professional investment management. Eventually, he moved into merchant cash advances, creating companies that would later be at the center of a legal battle.
A day in court that never came
In the 2010s, Elliot became interested in merchant cash advances, a form of alternative financing that gives small businesses quick access to capital. Imagine a small oil-delivery company whose $200,000 truck breaks down. The owner has $150,000 on hand but desperately needs another $50,000. A bank loan could take weeks—if he qualifies at all—and every day without the truck means lost business. A merchant cash advance can fill that gap, providing the $50,000 immediately in exchange for a larger amount repaid from the business’ future receipts.
Elliot saw an opportunity on the other side of these transactions. Rather than originating the advances himself, he provided capital to third-party funders by purchasing small stakes in many of their deals. If a funder provided the oil company’s $50,000, for example, Elliot might put up $5,000 and receive his proportional share of the returns.
By spreading his money across many funders and transactions, Elliot sought to reduce the risk inherent in any single advance.
Elliot initially tested the model using his own money. But as the business grew, he formed several LLCs and began raising outside capital. Investors lent money to the companies through promissory notes, and Elliot used that capital to participate in more merchant cash advances.
For several years, the model worked without incident. Then, in 2021, Pennsylvania’s Department of Banking and Securities came knocking.
Despite the lack of any consumer complaint or loss, the Department of Banking and Securities opened an enforcement action against Elliot in June 2021, alleging that he had violated the Pennsylvania Securities Act of 1972 in connection with the promissory notes his companies issued to investors. Elliot, who denies any wrongdoing and has evidence that contradicts the Department’s allegations, assumed he’d get the opportunity to plead his case in front of an independent court.
But his day in court never came.
Instead, he was brought before the Department of Banking and Securities’ in-house hearing officer for a brief two-day administrative trial in December 2022. Nearly a year later, in November 2023, the hearing officer unsurprisingly sided with the Department’s enforcement decision, recommending a fine of nearly $1 million.
Elliot was in shock. After reading the hearing officer’s report, he felt he had been denied a fair hearing in the absence of a neutral court and jury. The whole ordeal reminded him of Alice’s trial in Alice in Wonderland: “Sentence first. Verdict afterwards,” he says, quoting the Queen of Hearts.
Elliot could appeal the hearing officer’s recommendation—but only to the Department itself. While he knew it was unlikely that the Department would review its own actions and deem them unfair, he appealed anyway, specifically raising the jury trial issue.
In February 2024, the Department rejected Elliot’s challenges and finalized the $931,000 fine, without ever addressing his jury trial concerns.
The only silver lining in the Department finalizing its order against Elliot was that he was now free to seek judicial review in Pennsylvania’s Commonwealth Court. But his appeal was no substitute for the jury trial he believed he was owed.
During his appeal, Elliot challenged both the Department’s findings and the process that produced them, including the denial of a jury trial. In December 2025, the court sided with the Department and upheld the $931,000 fine.
The Commonwealth Court acknowledged that the right to a civil jury trial is a “fundamental aspect of our system of law.” But although fraud claims existed at common law and were tried by juries, the court concluded that Elliot was not entitled to one because the specific securities claims against him did not exist when Pennsylvania adopted its Constitution in 1790.
The Commonwealth Court’s conclusion becomes especially striking when you consider that Pennsylvania has an unusually explicit, unusually old, and unusually continuous relationship with the jury right. If there is anywhere in America where the historical importance of the jury should be unmistakable, it is Pennsylvania.
A right Pennsylvania held sacred
In 1670, decades before Pennsylvania’s founding, 25-year-old William Penn was arrested in London for delivering a Quaker sermon to a crowd on Gracechurch Street. Under the newly re-enacted Conventicle Act, religious assemblies outside of the established Church of England were banned.
Although he was given a jury trial as the English Constitution demanded, the royal judges made it quite clear that they expected the jury to deliver a conviction for Penn. The jurors refused to comply, turning the trial into a courtroom drama worthy of the big screen.
Instead of finding Penn guilty of unlawful assembly, the jury found him guilty only of speaking in Gracechurch Street. The judges were furious and refused to accept the verdict. They even went so far as to threaten to hold the jurors “without meat, drink, fire, and tobacco” until they reached a decision that pleased the court.
In a truly brazen act, Penn began cheering on the jury from his defendant’s box, begging them to stay true to the English Constitution and shouting, “You are Englishmen, mind your privilege, give not away your right!”
Penn’s encouragement did not fall on deaf ears. In a remarkable show of conviction, the jury returned a unanimous verdict of not guilty.
A decade later, Penn was granted an enormous tract of land in the American colonies. Faced with the rare opportunity to create a new government, he never forgot the important role juries played in keeping judicial power in check.
Before he departed England, Penn wrote Laws Agreed Upon in England, which set out substantive rules for governing the new colony and included the declaration that “all trials shall be by twelve men.”
A century later, Pennsylvania’s 1776 Declaration of Rights proclaimed that the right to a jury trial in civil suits “ought to be held sacred,” while the state constitution declared “Trials shall be by jury as heretofore.” That final word mattered: It preserved the jury right as it historically existed before the constitution was adopted.
By 1790, the language was changed to “Trial by jury shall be as heretofore, and the right thereof remain inviolate,” not just preserving the existing right, but explicitly protecting it from future government infringement. That language remains unchanged today.
Yet the very jury right Pennsylvania has spent centuries declaring sacred and inviolate is the one Elliot has been denied.
A modern test of an old right
For Elliot’s case, the relevant question isn’t whether the Pennsylvania Securities Act existed in 1790. Of course it didn’t. The question is whether the modern claims are analogous to types of claims that were historically tried before juries.
While Elliot was in the middle of his legal troubles, the U.S. Supreme Court confronted a remarkably similar question under the federal Constitution in the 2024 case, SEC v. Jarkesy.
In Jarkesy, the Supreme Court held that modern securities-fraud claims resemble common-law fraud claims historically decided by juries, and the Seventh Amendment requires a jury trial when the federal government seeks civil penalties for securities fraud, rather than letting an agency investigate, prosecute, and judge its own case.
But the Seventh Amendment’s civil-jury guarantee has never been incorporated against the states, meaning Jarkesy does not control Pennsylvania. That leaves a significant gap for people like Elliot who face similar enforcement actions at the state level.
After Jarkesy, Elliot connected with Pacific Legal Foundation, which has worked for years to secure Americans’ right to a fair trial before an independent court and jury. Together, Elliot and PLF asked the Pennsylvania Supreme Court to vindicate his right to a jury trial. In July, the court agreed to hear his case.
Even though Jarkesy isn’t binding on Pennsylvania, PLF argues that the historical analysis in the case is persuasive in interpreting Pennsylvania’s own historical jury guarantee.
Elliot’s case presents an important opportunity for the Pennsylvania Supreme Court to clarify the scope of the state constitution’s jury-trial guarantee and reaffirm the jury’s historic role as a safeguard against government abuse.
While he is happy to continue his fight, Elliot wasn’t particularly enthusiastic about becoming the person whose case might determine the scope of Pennsylvania’s jury-trial guarantee. “I really don’t want to be it,” he recalls thinking, “but by default, I am it.”
