The Chilutti Test Returns: The Pennsylvania Superior Court Again Adopts Heightened Scrutiny of Online Arbitration Agreements

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When the Pennsylvania Supreme Court vacated the Superior Court’s en banc decision in Chilutti v. Uber Technologies, Inc., businesses may have hoped that Pennsylvania’s unusually strict approach to online arbitration agreements had been put to rest—or at least put on a lengthy hold. It has not.

In Chilutti, the en banc Superior Court set unique, heightened requirements for enforcing online consumer arbitration agreements. The court required:

• The registration website or application screen must explicitly state that the consumer is waiving the right to a jury trial by agreeing to the terms, and the registration cannot be completed until the consumer is fully informed of that waiver.

• If the arbitration agreement is available through a hyperlink, the waiver cannot be buried in the hyperlinked terms; it must appear prominently in bold, capitalized text.

Although the Pennsylvania Supreme Court reversed the Chilutti Court, its decision was procedural, not substantive. 349 A.3d 826 (Pa. 2026). The Court held only that it lacked jurisdiction because an order compelling arbitration and staying court proceedings is not immediately appealable as a collateral order. It did not approve or reject the Superior Court’s heightened standard for online arbitration agreements.

The result was a legal fog: the Superior Court’s en banc opinion no longer had precedential force, but its reasoning remained the last meaningful Pennsylvania appellate discussion of how online consumer assent to arbitration should be evaluated.

That fog did not last long.

In March 2026, the Superior Court issued Duffy v. Tatum, a published decision that “borrow[ed] substantially” from Chilutti and revived its heightened framework under the Pennsylvania Constitution. Duffy, 354 A.3d 14, 19 n.2 (Pa. Super. Ct. 2026).

The facts gave the court a familiar online-contracting scenario: Duffy used Dolly’s website to book moving services. To complete the transaction, he had to check a box stating, “By checking this box I accept the Dolly Terms of Service.” The terms were hyperlinked, but Duffy did not have to open them or separately acknowledge the arbitration provision. The arbitration clause appeared on page three of the terms, and neither the registration website nor the first page of the terms expressly stated that the user was waiving the right to a jury trial.

The Superior Court held a reasonable person in Duffy’s position would not have understood that he was assenting to arbitration. Central to its conclusion was the court’s view that the average internet user may not understand “arbitration” to mean giving up the right to have claims decided by a jury, rather than simply adding another step to the litigation process. Emphasizing Pennsylvania’s constitutional guarantee that the right to a jury trial remain “inviolate,” the court therefore held that a strict burden of proof applies when a company seeks to show that an online consumer unambiguously assented to waive his or her right to a jury trial. Id. at 20, 24. Accordingly, the court adopted the Chilutti test.

Two months later, the Superior Court confirmed Duffy’s significance. In Pierce v. Empower Finance Inc., the court clarified that while Chilutti “by itself, [ ] has no precedential value,” Duffy’s adoption of the Chilutti test is “not just instructive, but also controlling.” — A.3d —-, 2026 WL 1192069, at *5-6 (Pa. Super. May 1, 2026).

Put differently, Chilutti may have been vacated, but its core holding is again the law in Pennsylvania.

Pierce then showed how exacting this standard can be in practice. Empower’s consumer-finance app advised users during registration that “You agree to our Privacy Policy, Terms, E-Sign, & Subscription Agreement,” with each item hyperlinked. The hyperlinked terms prominently notified users on the first page in bold text that an arbitration agreement was included. Although this arguably satisfied the second part of the Chilutti-Duffy framework, it did not establish assent. Users were not required to click the hyperlink or view the terms, and the registration screen did not tell Pierce that agreeing to Empower’s terms meant waiving her right to a jury trial. The Superior Court therefore refused to enforce the agreement.

The upshot is clear: Chilutti itself may be gone as precedent, but Duffy brought its holding (and the more-demanding-than-Ninth-Circuit test) back to life. Pierce confirms it’s binding. Pennsylvania therefore remains a uniquely demanding jurisdiction for enforcing online consumer arbitration agreements—particularly where assent is obtained through hyperlinked terms of service.

Until the Pennsylvania Supreme Court weighs in again, that is.

If you have questions about these recent Pennsylvania decisions or their implications for the enforceability of online consumer arbitration agreements, please contact Robert Day or Brenna Turner of Montgomery McCracken.