Vacated But Not Forgotten: The Pennsylvania Supreme Court Leaves the Future of Online Arbitration Agreements in Pennsylvania Unresolved

Types : Alerts

For those waiting to see whether the Pennsylvania Supreme Court would clarify the law on consumer assent to online arbitration agreements in Chilutti v. Uber Technologies, Inc., its January 21 opinion was anticlimactic.  

The opportunity was there. The 2023 en banc Superior Court opinion on appeal grabbed headlines because it created uniquely heightened standards for securing assent. The opinion pulled no punches, warning that the “copious usage of arbitration agreements in present day contracts . . . especially in the context of Internet contracts” among parties with purportedly unequal bargaining power had “substantially weakened” Pennsylvania’s constitutional right to a civil jury trial. Chilutti v. Uber Techs., Inc., 300 A.3d 430, 441 (Pa. Super. 2023) (en banc). The court even analogized a consumer’s decision to sign an arbitration agreement to a criminal defendant’s decision to waive a jury trial. Id. at 442. 

The Superior Court held that browsewrap arbitration agreements are enforceable in Pennsylvania only if (1) the registration websites and application screens explicitly inform consumers that they are waiving the right to a jury trial, and (2) when the agreement is available via hyperlink, the waiver itself is at the top of the first page of the terms in bold, capitalized text. Id. at 450. As the Superior Court acknowledged, these were “stricter burdens” than even the Ninth Circuit has imposed. Id. at 449-50.

Pennsylvania courts have been applying Chilutti since. See, e.g., Miller v. Festival Fun Parks, LLC, 92 WDA 2025 (Pa. Com. Pl. Allegheny Cnty. Mar. 24, 2025) (invoking Chilutti to reject an agreement that lacked an express jury-trial waiver on the assent screen); Pierce v. FloatMe Corp., — A.3d —, 2025 WL 3076233, at *8 (Pa. Super. Nov. 4, 2025) (holding that notice which failed to explicitly state the consumer was waiving a jury-trial right did not “me[e]t the strict burden set forth by our en banc Court in Chilutti”).

But when the Supreme Court reviewed the issues, it took the procedural way out – vacating the lower en banc opinion on jurisdictional grounds. It held that an order compelling arbitration is not an immediately appealable collateral order, so neither it nor the Superior Court had jurisdiction to entertain the dispute. — A.3d —, 2026 WL 156181, at *6-7 (Pa. Jan. 21, 2026).

The Supreme Court did not even comment on the merits. That means the Superior Court’s reasoning, although no longer binding, stands as the last meaningful appellate assessment of browsewrap arbitration agreements in Pennsylvania. So the Supreme Court’s procedural decision may give companies only limited reprieve from Chilutti’s practical risks. Since the high court did not reject the Superior Court’s analysis, judges evaluating motions to compel arbitration may treat Chilutti as persuasive authority and apply the two-part enforceability test—at least until the Supreme Court agrees to take up the issue again (for real this time).

Montgomery McCracken will continue following Chilutti’s impact as it develops. If you have any questions regarding the evolving landscape of the enforceability of arbitration agreements in Pennsylvania, please contact Robert Day, Leah Tedford, or Brenna Turner of Montgomery McCracken’s Appellate Practice Group.