Pennsylvania Online Arbitration Agreements: State and Federal Courts Split Over Click-Through Jury Waivers

Pennsylvania online arbitration agreements are, as of November 2026, largely unenforceable in the state's own courts unless the sign-up screen itself tells the user, explicitly and up front, that agreeing means giving up a jury trial, a rule the Superior Court of Pennsylvania has now applied in at least four 2026 decisions. Federal courts sitting in Pennsylvania have generally gone the other way and enforced the same click-through terms under the Federal Arbitration Act (FAA), and with the Pennsylvania Supreme Court having declined to reach the merits in January, the split now decides where consumer, rideshare and fintech cases are litigated.

The Legal Intelligencer put the divide on the front page on Nov. 3, 2026, framing it as a contest between contractual assent and the state and federal constitutional right to a jury trial. Four days later, a Duane Morris analysis of Thompson v. C.&J. Clark America, a wiretap decision filed Oct. 23, highlighted the other side of the line: the Superior Court refused to carry the heightened standard over to privacy consent. Read together, the decisions give companies, plaintiffs' firms and mass-arbitration counsel the clearest map yet of what Pennsylvania requires and where the rule stops.

Are online arbitration agreements enforceable in Pennsylvania?

In Pennsylvania state court, an online arbitration agreement is enforceable only if the business proves, under a strict burden, that the user unambiguously agreed to waive the jury right, which in practice means the registration or checkout screen must state the jury-trial waiver explicitly. A hyperlink labeled "Terms," a checkbox, or a bold jury-waiver paragraph buried inside the linked terms has not been enough in any precedential 2026 Superior Court decision on a consumer clickwrap or browsewrap.

That answer comes with three qualifications. First, the rule is the Superior Court's; the Pennsylvania Supreme Court has not endorsed or rejected it. Second, it is a state-court rule, and federal judges applying Pennsylvania contract law have treated the underlying test as inconsistent with the FAA. Third, it has been applied to consumer-facing online flows. Employment agreements signed through an HR system and privacy-consent questions have been treated differently, as discussed below.

What is the Chilutti test for online arbitration agreements?

The Chilutti test requires that (1) the registration website or app screen explicitly tell the consumer that they are waiving the right to a jury trial, (2) the consumer cannot complete registration without being informed of that waiver, and (3) the waiver appear at the top of the first page of any hyperlinked terms in bold, capitalized text. It comes from the Superior Court's en banc decision in Chilutti v. Uber Technologies, Inc., 300 A.3d 430 (Pa. Super. 2023), decided July 19, 2023, in an opinion by Judge McCaffery with Judge Stabile dissenting.

The facts were sympathetic. Shannon Chilutti, who uses a wheelchair, booked an Uber wheelchair-accessible ride and was injured when the vehicle made a sharp turn. Uber petitioned to compel arbitration based on terms she had accepted when she enrolled. The en banc court refused and set out requirements that commentators at the time noted were stricter than even the Ninth Circuit's "reasonably conspicuous notice" standard for a Motion to Compel Arbitration built on a hyperlink.

The doctrinal anchor matters. The court did not frame the test as a special rule against arbitration. It framed it as the general rule for waiving a constitutional right: Article I, Section 6 of the Pennsylvania Constitution provides that "Trial by jury shall be as heretofore, and the right thereof remain inviolate," and Pennsylvania law has long demanded a clear, knowing waiver before that right is surrendered. That framing is the battleground in the preemption fight.

Did the Pennsylvania Supreme Court overturn Chilutti v. Uber?

The Pennsylvania Supreme Court vacated the en banc Chilutti decision on Jan. 21, 2026, but only on jurisdictional grounds: it held that a trial-court order compelling arbitration and staying litigation is not an immediately appealable collateral order, so the Superior Court should never have heard the appeal. The court remanded with instructions to quash and expressly did not decide whether Uber's arbitration agreement was valid.

The Supreme Court had granted Uber's petition for allowance of appeal on Aug. 27, 2024, and defense groups including the U.S. Chamber of Commerce had urged it to reject the test on the merits. Instead, Chilutti II (No. 58 EAP 2024) left the substantive question open and stripped the 2023 opinion of precedential force.

The procedural holding has a lasting consequence that is easy to miss. Because an order granting arbitration cannot be appealed immediately, while an order denying a petition to compel is appealable as of right under Pennsylvania law, the Superior Court now sees the assent question almost entirely through appeals by companies that lost. That asymmetry is one reason the 2026 case law points in one direction, and it means the Supreme Court is most likely to see the merits on a company's petition for allowance of appeal from a denial.

What did the Superior Court decide in Duffy v. Tatum?

In Duffy v. Tatum, 2026 PA Super 41 (No. 483 EDA 2025, decided Mar. 3, 2026), the Superior Court held that a moving-services customer was not bound by the arbitration clause in Dolly's online terms because he was never told "in an explicit and upfront manner" that he was waiving his right to a jury trial. The panel affirmed the trial court's order overruling Dolly's preliminary objections, so the Duffys' suit stays in court.

The booking flow was a hybrid that the court described as a combination of sign-wrap and clickwrap. To finish booking, Daniel Duffy had to tick a box labeled "By checking this box I accept the Dolly Terms of Service." He did not have to open the linked terms or scroll to the bottom before checking it. The first page of the terms did contain a bold, capitalized statement that the user waives a jury trial, but nothing else on the website said so.

The court announced that "a strict burden of proof is necessary to demonstrate a person's unambiguous manifestation of assent to arbitration," and grounded that burden in Article I, Section 6 and in the Pennsylvania wrongful-death line of cases, including Pisano, which held that compelling arbitration against people who never waived their jury right would infringe their constitutional rights. Commentators read Duffy as reviving the substance of the Chilutti test on independent state-constitutional grounds, roughly six weeks after the Supreme Court vacated the original.

How Pennsylvania online arbitration agreements fared in 2026: the case table

The table below collects the appellate decisions that define the current landscape, in date order, with precedential status and outcome.

Date	Case	Court / docket	Status	Context	Result for the party seeking arbitration
July 19, 2023	Chilutti v. Uber (Chilutti I)	Pa. Super. (en banc), 300 A.3d 430	Vacated Jan. 2026	Rideshare app, consumer	Lost: three-part waiver test announced
Jan. 21, 2026	Chilutti v. Uber (Chilutti II)	Pa. Supreme Court, No. 58 EAP 2024	Precedential	Appellate jurisdiction	Won on procedure; merits not reached
Feb. 18, 2026	Cobb v. Tesla	Pa. Super., No. 2879 EDA 2024	Non-precedential	Employment agreement	Won: denial of petition to compel reversed
Mar. 3, 2026	Duffy v. Tatum	Pa. Super., 2026 PA Super 41	Precedential	Moving-services booking site	Lost: strict burden, no explicit waiver
May 1, 2026	Pierce v. Empower Finance	Pa. Super., 2026 PA Super 91	Precedential	Fintech app registration, putative class	Lost: hyperlinked terms, no waiver on screen
June 9, 2026	Levin v. Prime Communications	Pa. Super., No. 874 EDA 2025	Precedential	Employee HRIS acknowledgment	Partial win: formation evidence admissible; remanded
July 30, 2026	Miller v. Festival Fun Parks (Kennywood)	Pa. Super., No. 92 WDA 2025	Non-precedential	Amusement-park season pass, class action	Lost: waivers only in hyperlinked documents
Oct. 1, 2026	Oakley v. FloatMe Corp.	Pa. Super., 2026 PA Super 221	Precedential	Cash-advance app, putative class	Lost: rule held consistent with the FAA
Oct. 23, 2026	Thompson v. C.&J. Clark America	Pa. Super., 2026 PA Super 236	Precedential	Website wiretap consent (WESCA)	Not arbitration: Duffy standard not imported

Two patterns stand out. Every consumer-facing online flow lost. The two wins for businesses involved employment relationships, where the agreement was not a browsewrap or consumer clickwrap and the dispute was about proof of signature rather than the conspicuousness of the waiver.

Pierce v. Empower Finance: "not just instructive, but also controlling"

Pierce removed any doubt that Duffy binds Superior Court panels. Empower's cash-advance app told users during registration, "You agree to our Privacy Policy, Terms, E-Sign, & Subscription Agreement," with each item hyperlinked. The registration screen said nothing about waiving a jury trial. Although the original Chilutti opinion "by itself" has no precedential value, the panel said Duffy's adoption of the Chilutti test is "not just instructive, but also controlling," and it affirmed the denial of Empower's petition in a case brought by Natalie Pierce individually and for a putative class.

Miller v. Festival Fun Parks: the equal-footing answer

In the Kennywood season-pass case, the company argued that Duffy should not reach arbitration agreements at all because the FAA forbids rules that disfavor arbitration. The panel rejected that argument, reasoning that Duffy places arbitration agreements on equal footing with every other agreement that waives a constitutional right. Because the critical waivers appeared only in the hyperlinked documents and were not brought to the customer's attention clearly and conspicuously, no valid agreement had been formed. The decision is non-precedential but tracks the precedential framework closely.

Oakley v. FloatMe: the FAA holding

Oakley, decided Oct. 1 in an opinion by Judge King, is the newest precedential consumer ruling and the most important for the preemption debate. The panel held that the arbitration provision in FloatMe's app terms was inconspicuous and unenforceable, and it squarely stated that the rule announced in Duffy and Pierce does not violate the FAA, citing the U.S. Supreme Court's decision in Kindred Nursing Centers, L.P. v. Clark alongside Duffy. That holding converts what had been an argued tension into an express conflict with the reasoning of federal judges in the state.

Why are Pennsylvania state and federal courts divided on clickwrap arbitration?

The courts are divided because the Superior Court treats an online arbitration clause as a waiver of the state constitutional jury right that demands explicit, up-front disclosure, while federal judges in Pennsylvania apply ordinary notice-and-assent contract principles and view a rule that hinges on an express jury-waiver as singling out arbitration in violation of the FAA. Federal courts are not bound by a Superior Court decision when predicting how the Pennsylvania Supreme Court would rule, and the Supreme Court has not spoken on the merits.

Coverage dating back to 2024 and 2025 documented the federal side. The Legal Intelligencer reported in August 2024 that a federal judge in a repossession dispute rejected application of the Chilutti standard, and in June 2025 that the ruling had sown a divide between Pennsylvania's state and federal courts. Commentary has identified at least three Pennsylvania federal judges who rejected Chilutti-based challenges, including in Dieffenbach v. Upgrade, Inc. (M.D. Pa., No. 4:23-cv-1427, Judge Munley), a usury and "rent-a-bank" class action in which the court was described as finding that Chilutti treats arbitration contracts differently from other contracts. The Nov. 3 Legal Intelligencer piece reports that the divergence persists, with federal courts finding app agreements valid under the FAA.

Does the Federal Arbitration Act preempt Pennsylvania's jury-waiver rule?

No court with final authority has decided the question; the Superior Court held in Oakley that the Duffy rule is consistent with the FAA, while federal judges in Pennsylvania have treated the Chilutti approach as preempted. The answer turns on how Kindred Nursing applies. In that 2017 decision, the U.S. Supreme Court held that the FAA preempted a Kentucky rule requiring a power of attorney to expressly authorize waiver of the right to a jury trial before an agent could sign an arbitration agreement, because the rule targeted the defining feature of arbitration. Under the FAA's equal-footing principle, a state may apply generally applicable contract defenses, but it may not adopt rules that hinge on the primary characteristic of an arbitration agreement, namely the absence of a jury.

Pennsylvania's courts answer that their rule applies to every contractual waiver of the Article I, Section 6 right, not only arbitration, so it is a generally applicable defense. Defense counsel answer that, in the online setting, the only contracts that waive a jury trial are arbitration agreements and stand-alone jury waivers, so a rule requiring an explicit jury-waiver disclosure operates almost exclusively against arbitration. One academic critic has also flagged Duffy's insistence that arbitration be defined within the agreement as a departure from prevailing federal and sister-state authority. Until the Pennsylvania Supreme Court or the U.S. Supreme Court resolves the question, the forum in which the Arbitration Agreement is tested often decides the outcome.

Where the heightened rule stops: employment, e-signatures and wiretap consent

The Duffy standard has been applied to consumer website and app flows; it has not been extended to employment agreements signed through HR systems, and in October the Superior Court declined to apply it to consent under the state wiretap statute. Three decisions mark the boundary.

Cobb v. Tesla. In a non-precedential Feb. 18, 2026 decision, the Superior Court held that the Philadelphia Court of Common Pleas erred in refusing to compel arbitration of an employee's claims. The trial court had relied on Chilutti; the panel, as summarized in the Chamber's case tracker, rejected a heightened consent requirement outside the specific context of browsewrap consumer contracts.

Levin v. Prime Communications. In a precedential June 9, 2026 opinion by Judge McLaughlin, the court vacated a Philadelphia order that had refused to send former employee David Levin's claims against Prime Communications, an AT&T retailer, to arbitration. Levin said he never signed an arbitration agreement; the companies pointed to a 2019 agreement issued after Prime acquired his prior employer and a 2022 acknowledgment in the company's HR information system. The panel held that timestamped HRIS records and HR declarations are admissible evidence of electronic-signature formation under Pennsylvania's Uniform Electronic Transactions Act. It did not compel arbitration outright; attribution of the signature remains a fact question for remand.

Thompson v. C.&J. Clark America. In an Oct. 23 opinion by Judge Murray, the court vacated summary judgment for the Clarks footwear company in a session-replay suit under the Wiretapping and Electronic Surveillance Control Act (WESCA). It applied an objective consent test under 18 Pa.C.S. § 5704(4), asking whether a reasonable internet user knew or should have known that a third party would acquire her communications, and found a genuine fact issue about whether Content Square tracked the plaintiff. The panel said Duffy's utility in that context is limited and declined to import the "unambiguous manifestation of assent" standard. As the Nov. 7 Duane Morris analysis notes, the result was still a loss for the defendant on the record presented, but the framework it adopted is the more forgiving one.

The practical lesson from Thompson is that the Superior Court sees the Duffy standard as a jury-right doctrine, not a general theory of online assent. That supports Pennsylvania's argument that the rule is principled, and it undercuts any claim that every online term is now unenforceable in the state.

What must a website or app show to enforce arbitration in Pennsylvania?

To survive in a Pennsylvania state court, a consumer-facing flow must at minimum display an explicit statement on the screen where the user accepts the terms that agreeing means waiving the right to a jury trial, must make that disclosure unavoidable before registration or purchase is complete, and should repeat the waiver in bold, capitalized text at the top of the first page of the hyperlinked terms. Nothing in the 2026 decisions suggests a bare "I agree to the Terms" checkbox will suffice, however prominent the link.

The decisions identify the specific failures to avoid:

• Checkbox without disclosure. Duffy's checkbox named the Terms of Service but not the jury waiver; the bold waiver inside the terms did not cure the gap.
• A row of hyperlinks. Pierce's "Privacy Policy, Terms, E-Sign, & Subscription Agreement" line gave notice that documents existed, not that rights were being surrendered.
• Waivers only in linked documents. Miller turned on waivers that never appeared in the purchase flow itself.
• Inconspicuous app placement. Oakley rejected terms that a user could pass without meaningful notice in the app.
• Weak formation proof in employment. Levin shows that for HR systems, the fight is about evidence: audit trails, timestamps and custodial declarations.

Drafters should also note the definitional point flagged in commentary on Duffy: describing what arbitration is, in plain language, near the waiver reduces the risk that a court finds the user could not understand what was being given up. None of these steps guarantees enforcement in federal court, where the standard is more forgiving, but they are the only route the Superior Court has signaled it will accept.

What it means for drafters, defendants and claimants' counsel

For drafters and in-house teams. Pennsylvania is now among the most demanding state forums in the country for consumer online assent. A national flow can be built to satisfy it with an on-screen, plain-language jury-waiver sentence next to the acceptance control, an explicit statement that the user is agreeing to arbitration and giving up a jury trial and class participation, and a bold, capitalized waiver at the top of the terms. Companies that already use a Class Action Waiver and an Opt-Out Clause should check that those features are also disclosed on the acceptance screen rather than only inside the document.

For defendants in pending cases. Forum is the first decision. Where the Class Action Fairness Act or diversity jurisdiction permits removal, a federal court in Pennsylvania is far more likely to enforce the clause. Where a case is stuck in state court, Chilutti II means that a company that loses a petition to compel can appeal immediately, while the plaintiff who loses cannot, so the appellate record will keep accumulating denials and the company controls whether a test case reaches the Supreme Court. Preserving an express FAA Preemption argument, now that Oakley has rejected it in a precedential opinion, is a prerequisite to any U.S. Supreme Court petition.

For claimants' counsel and the mass-arbitration bar. A Pennsylvania state-court ruling that no agreement was formed is a complete exit from Mass Arbitration and a path back to a Class Action. For firms that file thousands of individual demands with the American Arbitration Association (AAA) or JAMS, the Pennsylvania line cuts both ways: it supports keeping Pennsylvania residents' claims in court, but a company facing a mass filing may argue that claimants who invoke the arbitration clause cannot simultaneously deny it was formed. Plaintiff-side counsel in privacy cases should note that Thompson gives them no Duffy-style advantage on WESCA consent.

For PI firms. Chilutti began as a rideshare injury case, and personal injury plaintiffs remain the most sympathetic test cases. Rideshare and delivery-app injury claims filed in Philadelphia and Allegheny County courts are where the next appellate decision on a consumer app is most likely to arise.

What to watch

Three developments would change the map. First, any petition for allowance of appeal from Pierce or Oakley, the two precedential consumer losses, would give the Pennsylvania Supreme Court the merits question it sidestepped in January; no grant had been reported as of Nov. 8, 2026. Second, a Third Circuit precedential opinion predicting how the Pennsylvania Supreme Court would rule would harden the federal side of the split. Third, a petition to the U.S. Supreme Court raising Kindred Nursing would test whether a state constitutional jury-waiver rule can survive the FAA's equal-footing principle. The comparison with other states is instructive: the Ninth Circuit's notice-and-assent cases, applied in decisions such as the recent Rugs.com ruling, deny enforcement when a click is not clearly tied to agreement, but none require an on-screen jury-waiver sentence.

FAQ

Is a clickwrap arbitration agreement enforceable in Pennsylvania?

In Pennsylvania state courts, a clickwrap arbitration agreement is generally enforceable only if the acceptance screen explicitly discloses the jury-trial waiver; the Superior Court refused enforcement in Duffy, Pierce, Miller and Oakley. Federal courts in the state have been more willing to enforce such agreements under the FAA.

Is Chilutti v. Uber still good law?

The 2023 en banc Chilutti opinion was vacated by the Pennsylvania Supreme Court on Jan. 21, 2026 on jurisdictional grounds and has no precedential force on its own. Its test survives because Duffy v. Tatum readopted it in March 2026, and Pierce held that adoption controlling.

Does the Duffy rule apply to employment arbitration agreements?

The Superior Court has not applied the Duffy rule to employment agreements; in Cobb v. Tesla it compelled arbitration of an employee's claims, and in Levin v. Prime Communications it treated an HR-system acknowledgment as a question of electronic-signature proof under the Uniform Electronic Transactions Act.

Can a company appeal an order compelling arbitration in Pennsylvania?

No, not immediately. Under Chilutti II, an order compelling arbitration and staying litigation is not an appealable collateral order, while an order denying a petition to compel arbitration is appealable as of right.

Does the Duffy standard apply to website privacy consent?

No. In Thompson v. C.&J. Clark America, decided Oct. 23, 2026, the Superior Court applied an objective reasonable-user test to consent under the state wiretap statute and declined to import Duffy's heightened assent standard.

Will the Pennsylvania Supreme Court decide whether online arbitration clauses are enforceable?

The court has not yet agreed to decide the merits. The most likely vehicle is a company's petition for allowance of appeal from a precedential Superior Court denial such as Pierce or Oakley, because denials, unlike orders compelling arbitration, can be appealed immediately.