Pennsylvania Courts Raise the Bar for Clickwrap Arbitration Clauses

Pennsylvania's Heightened Standard for Clickwrap Arbitration Clauses

If you do business in Pennsylvania and use clickwrap, browsewrap, or sign-in-wrap agreements to channel consumer disputes into arbitration, Pennsylvania courts have a message: that's probably not going to work anymore—unless the checkout screen itself tells consumers they're waiving their right to a jury trial. A growing line of Pennsylvania court decisions have declined to enforce arbitration clauses that bury jury trial waivers in hyperlinked terms and conditions, and the standard is spreading. Our latest advisory breaks down what changed, what it means for your online contracting practices, and the concrete steps you can take now to reduce your arbitration program's risk. Read the full advisory below.

What Happened in Miller v. Festival Fun Parks

In Miller v. Festival Fun Parks, LLC, No. 92 WDA 2025 (Pa. Super. Ct. July 30, 2026), the Pennsylvania Superior Court affirmed an Allegheny Court of Common Pleas order refusing to enforce an online arbitration clause because the consumer-facing purchase flow did not clearly disclose that the purchaser was waiving the right to a jury trial. The plaintiff bought a season pass to the Kennywood amusement park online and checked a box acknowledging his consent to the park's terms and conditions. But the checkbox language did not mention arbitration, dispute resolution, or a jury trial waiver. The arbitration provision appeared only in a separate hyperlinked terms document—albeit immediately below the checkbox—"buried on" pages 7 and 8 of a 10-page, small-font agreement.

Although Miller is designated as a "non-precedential decision," the court applied the same framework announced in precedential Pennsylvania Superior Court decisions, including Duffy v. Tatum, 354 A.3d 14 (Pa. Super. 2026) and Pierce v. Empower Finance Inc., 2026 WL 1192069 (Pa. Super. 2026). Under that framework, businesses seeking to enforce online arbitration clauses should satisfy two requirements:

1. Clear on-screen disclosure. The purchase or registration screen should tell consumers that agreeing to the terms means waiving the right to a jury trial.

2. Prominent placement in the terms. The jury trial waiver should appear prominently in the terms, not in the middle or back pages of a lengthy document in small font.

The Kennywood agreement failed both prongs. Neither purchase confirmation box mentioned a jury trial waiver or arbitration. The arbitration clause was on pages 7-8 of 10 in small font, the term "waive" never appeared, and the closest language—"The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial"—was, in the court's view, "oblique and indirect." The court noted that "a waiver 'must be clearly described and understood to be giving up a constitutional right to a jury trial.'"

Why This Matters for Online Arbitration Agreements

• Pennsylvania courts are applying a coherent framework. Although Miller is non-precedential, it applies Duffy and Pierce, which are precedential Pennsylvania Superior Court decisions. Companies litigating in Pennsylvania should expect plaintiff's counsel to rely on these cases when contesting a motion to compel arbitration.
• The standard is more demanding than ordinary clickwrap notice. Traditional clickwrap cases focus on whether the user had reasonable notice of the terms and clearly manifested assent. Pennsylvania courts are adding a more demanding inquiry where arbitration involves waiver of the constitutional right to a jury trial.
• Plain-language explanations may matter. In Duffy, the court stated that arbitration must be defined within the arbitration agreement because the average internet user may not understand the term. That requirement goes further than the approach many federal courts[1] have taken under the "reasonably conspicuous notice" standard.

Drafting and Design Best Practices for Online Arbitration Agreements

To reduce enforceability risk under the Duffy/Pierce framework, businesses should consider the following updates to online arbitration provisions and acceptance flows:

• Review every consumer acceptance channel. Inventory all pathways through which consumers accept terms and conditions, including websites, mobile applications, customer-service interactions, in-store enrollments, and third-party sales channels. A compliant web flow may not cure deficiencies elsewhere.

• Evaluate and change, if necessary existing arbitration disclosures. Review purchase, registration, and sign-in flows to determine whether consumers receive clear notice that they are agreeing to binding arbitration and waiving their right to a jury trial. Particular attention should be paid to customer acquisition channels that may have evolved over time or operate through different user interfaces.
  • Make sure that you have defined arbitration in plain language and clearly explained that a neutral arbitrator, not a judge or jury, will decide covered disputes.
  • Make the waiver of jury trial conspicuous in the terms by placing the arbitration clause and jury trial waiver near the top of the terms in bold, prominent text. Using the word "waive" is important. In rejecting arbitration, the Miller court noted that the Kennywood clause did not use that term.
  • And make sure the express jury trial waiver language appears on the screen where the consumer is asked to consent to arbitration. The screen should clearly state that the consumer is agreeing to binding arbitration and waiving the right to a jury trial before the consumer clicks "I agree."
• Review legacy customer enrollments. Long-tenured customers may have accepted terms through older enrollment flows that would not satisfy the standards articulated in Duffy, Pierce, and Miller. Companies should consider whether account updates, service modifications, equipment upgrades, or periodic terms updates provide opportunities to present revised disclosures and obtain renewed assent.
• Assess class action exposure. For businesses that rely on arbitration programs to manage class litigation risk, an unenforceable arbitration provision may also jeopardize any associated class action waiver.
• Review governing-law, venue, and delegation provisions. Businesses that designate Pennsylvania law or Pennsylvania courts in their dispute-resolution provisions should evaluate how the restrictive Pennsylvania framework may affect enforceability. Companies should also consider whether delegation clauses embedded within arbitration agreements could face similar challenges.
• Consider scrollwrap for higher-risk flows. A design that requires users to review terms before accepting and continuing with the transaction may provide stronger evidence of assent.
• Preserve evidence of consumer assent. Maintain screenshots, user-flow documentation, historical versions of terms, and acceptance records that may be needed to support future motions to compel arbitration.
• Monitor appellate developments. Pennsylvania courts continue to refine this area of law, and future FAA preemption challenges may further shape the enforceability landscape.

Could the FAA Preempt Pennsylvania's Approach?

One unresolved issue is whether the Federal Arbitration Act (FAA) preempts Pennsylvania's heightened disclosure standard. Kennywood raised that argument, but the Superior Court rejected it, reasoning that Duffy places arbitration agreements on equal footing with other types of agreements involving waiver of constitutional rights.

That issue will continue to be litigated. The U.S. Supreme Court has held that states may not impose rules that apply only to arbitration or derive their meaning from the fact that arbitration is at issue. However, the U.S. District Court for the Eastern District of Pennsylvania recently acknowledged the persuasive value of Duffy and Pierce but declined to apply either because the underlying facts were not analogous. See McCormack v. Dentsply Sirona, Inc., 2026 WL 1830935, at *7 n.3 (E.D. Pa. June 24, 2026)

Until other appellate courts provide more guidance, FAA preemption may not save less conspicuous arbitration agreements. Pennsylvania businesses should consider reviewing online contracting flows now for implementing updates that comply with the more restrictive Duffy/Pierce/Miller framework.

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Soraya Mohamed is an associate and Pat Curran is counsel in DWT's Washington, D.C., office. To discuss how this ruling may impact your arbitration provisions or online contracting flows, please contact Soraya, Pat, or a member of DWT's communications, technology, or litigation teams. You can also sign up for our alerts to stay informed on developments in this area.