J-A18022-26 2026 PA Super 221
MONICA OAKLEY, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF ON BEHALF OF ALL OTHERS : PENNSYLVANIA SIMILARLY SITUATED :
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v. :
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FLOATME CORP., : No. 1318 WDA 2025
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Appellant :
Appeal from the Order Entered September 16, 2025
In the Court of Common Pleas of Washington County Civil Division at
No(s): CV-24-01405
BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.
OPINION BY KING, J.: FILED: OCTOBER 1, 2026
Appellant, FloatMe Corp. (“FloatMe”), appeals from the order entered in
the Washington County Court of Common Pleas, which overruled its
preliminary objections seeking to compel arbitration with Appellee, Monica
Oakley, individually and on behalf of others similarly situated. We affirm.
The relevant facts and procedural history are as follows. FloatMe is a
Texas-based technology company that makes loans or cash advances to
Pennsylvania consumers over the internet. On March 6, 2024, Appellee filed
a class action complaint against FloatMe. Appellee alleged that “FloatMe
advertises its cash advance product as [a] no interest and free credit product.”
(Complaint, filed 3/6/24, at ¶36). Appellee insisted, however, that “FloatMe’s
cash advances have significant costs,” and the “APRs associated [with] these
cash advances are similar to the APRs associated with payday loans.” (Id. at J-A18022-26
¶37, ¶42).
On June 5, 2024, FloatMe filed preliminary objections in the nature of a
motion to compel arbitration. FloatMe explained that Appellee “was required
to sign up via FloatMe’s mobile application (“App”)” before she could obtain a
cash advance. (Preliminary Objections, filed 6/5/24, at ¶7). FloatMe asserted
that the “App prompts the user to answer several questions and requests
certain information.” (Id. at ¶8). One of the prompts on the App provides:
“By continuing, you agree to FloatMe’s Terms of Service and Privacy Policy.”
(Id. at ¶12). FloatMe maintained that the “‘Terms of Service’ button is
clickable and directs the user to an online format of the Terms and Conditions.”
(Id. at ¶16). “If a user clicks on the phrase Terms and Conditions (“T&Cs”),
… [t]he T&Cs clearly indicate that the Agreement contains an arbitration
provision and class action waiver.” (Id. at ¶20, ¶21).
Appellee filed her first amended class action complaint on July 19, 2024.
Regarding arbitration, Appellee claimed that the App’s “lengthy sign-up
process” included “at least sixteen screens” for a consumer to navigate before
they may obtain a cash advance. (First Amended Complaint, filed 7/19/24,
at ¶50, ¶51). “At no point in this process does FloatMe mention arbitration,
or the waiver of any constitutional rights.” (Id. at ¶72). Appellee also
complained that “the only hyperlinked terms that are associated with cash
advances are the ‘payment authorization’ terms, which do not include an
arbitration clause.” (Id. at ¶73). Appellee concluded that this type of sign-2-J-A18022-26
up process “is not sufficient to bind users to arbitration or waive any other
constitutional right under Pennsylvania law or any generally applicable
contract principles.” (Id. at ¶75).
FloatMe filed preliminary objections to the first amended complaint on
August 7, 2024. Again, FloatMe argued that the parties had executed a valid,
enforceable agreement mandating that Appellee submit her claims to
arbitration. On August 30, 2024, Appellee filed a response, as well as a
memorandum of law in opposition to FloatMe’s preliminary objections.
Appellee continued to argue that “[t]he only agreement that is spatially and
temporally coupled with using FloatMe’s app, and obtaining a cash advance,
is a ‘payment authorization’ contract, which does not include an arbitration
clause.” (Memorandum of Law, filed 8/30/24, at 2). Moreover, Appellee
posited that “FloatMe’s evidence in support of its preliminary objections is
deficient because there is no evidence to prove FloatMe ever gave [Appellee]
notice that she was agreeing to an arbitration contract….” (Id. at 5).
Following argument on the preliminary objections, the court entered an order
providing the parties with ninety (90) days to conduct depositions and
supplement the record. The parties subsequently agreed to extend the
deadline to January 31, 2025.
In light of the evidence obtained through depositions, FloatMe filed
amended preliminary objections on April 4, 2025. The amended preliminary
objections cited the deposition and affidavit of Joshua Sanchez, FloatMe’s
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Chief Executive Officer (“CEO”). FloatMe relied upon Mr. Sanchez’s deposition
and affidavit to reiterate that Appellee agreed to an arbitration clause through
the sign-up process for the App:
At the bottom of the screen requesting [Appellee’s] name,
email, and password, right above the button to continue, it
provided as follows: “By tapping Continue, I agree to
FloatMe’s Privacy Policy and Terms and Conditions.” …
The words “Terms and Conditions” … and “Privacy Policy”
are bolded and appear in a distinctive hot pink color.
* * *
The bolded phrase “Terms and Conditions” is a hyperlink,
and if a user clicks that phrase, they will be directed to a
webpage displaying FloatMe’s T&Cs.
(Amended Preliminary Objections, filed 4/4/25, at ¶¶11-12, ¶18) (emphasis
in original) (record citations omitted). FloatMe added that the T&Cs “are
explicit about the parties’ agreement to arbitrate.” (Id. at ¶24).
Appellee filed a response to the amended preliminary objections on April
24, 2025. Appellee did “not remember seeing a notice concerning the ‘Terms
and Conditions,’ or seeing that phrase displayed in pink font.” (Response,
filed 4/24/25, at ¶18). Appellee also complained that the T&Cs were “not
‘explicit’ about any alleged agreement to arbitrate,” and “she was not aware
of an arbitration provision.” (Id. at ¶24, ¶34).
Following oral argument, the court overruled FloatMe’s preliminary
objections by opinion and order filed on September 16, 2025. FloatMe timely
filed a notice of appeal on October 14, 2025. The court did not order FloatMe
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to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, and none was filed. On October 15, 2025, FloatMe filed a motion for
stay pending appeal, which the court granted.1
FloatMe raises one issue on appeal:
Did the trial court err in overruling the preliminary
objections to compel arbitration where [Appellee] entered
into an enforceable agreement to arbitrate contained in
FloatMe’s [T&Cs], and [Appellee’s] claims fall within the
scope of the arbitration provision?
(FloatMe’s Brief at 6).
Preliminarily, we address the issue of whether the trial court’s order is
immediately appealable.
An order overruling preliminary objections that seek to
compel arbitration is an interlocutory order appealable as of
right under 42 Pa.C.S. § 7320(a)(1) and Pa.R.A.P.
311(a)(8). Alternative dispute resolution agreements that
merely include arbitration as only one of a number of
possible methods of resolving disputes are not arbitration
agreements, and denial of enforcement of such dispute
resolution agreements is not appealable as of right. Where
the parties’ agreement requires arbitration, however, the
denial of enforcement is appealable as of right even though
the parties’ agreement includes some pre-arbitration
settlement procedures.
McCrossin v. Comcast Spectacor, LLC, 311 A.3d 1115, 1121 (Pa.Super.
1 On August 4, 2026, Appellee filed an application asking this Court to accept
supplemental authority. Specifically, Appellee attached this Court’s recent decision in Miller v. Festival Fun Parks, LLC, 2026 WL 2199005 (Pa.Super. July 30, 2026) (unpublished memorandum), claiming it “is directly relevant to the arguments raised in this appeal, including the applicable standard for compelling arbitration.” (Application, filed 8/4/26, at 1). By order filed August 5, 2026, we granted Appellee’s application. We discuss Miller infra.
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2024), appeal denied, ___ Pa. ___, 329 A.3d 582 (2024).
Instantly, the dispute resolution provision at issue is plainly an
arbitration agreement. (See Amended Affidavit of Mr. Sanchez in Support of
Preliminary Objections, filed 2/6/25, at Exhibit 2, ¶¶26-26.11). Thus, the
court’s order overruling FloatMe’s preliminary objections is appealable as of
right, and the appeal is properly before this Court. See McCrossin, supra.
See also Pa.R.A.P. 311(a)(8); 42 Pa.C.S.A. § 7320(a)(1).
On appeal, FloatMe contends that it presented sufficient, unrefuted
evidence of an arbitration agreement. FloatMe asserts that Appellee
“voluntarily signed up for FloatMe’s app, agreed to its T&C[s], and, though
she had an opportunity to opt out of the agreement to arbitrate, she chose
not to do so.” (FloatMe’s Brief at 27). FloatMe relies on the deposition and
affidavit from its CEO, Mr. Sanchez, to establish that Appellee agreed to
FloatMe’s T&Cs and arbitration agreement during the onboarding process for
the App:
Early on in the process, one such screen would advise the
customer that if they continued, which they would
accomplish by pressing the button “Continue,” they would
be agreeing to FloatMe’s T&C[s]. On this same screen, a
user could click the phrase “Terms and Conditions,” and
FloatMe’s operative T&C[s] would be displayed. Those
terms contained the arbitration provision and the class
action waiver.
(Id. at 28) (record citations omitted).
Citing state contract law, FloatMe avers that “an agreement to arbitrate
exists where notice of the arbitration provision was reasonably conspicuous
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and manifestation of assent is unambiguous as a matter of law.” (Id. at 45).
FloatMe claims that it provided reasonably conspicuous notice of the
arbitration provision where “multiple visual elements” of the App “draw
attention to and highlight a conspicuously displayed hyperlink that provides
users with its T&C[s].” (Id. at 51). FloatMe emphasizes that the hyperlink to
the T&Cs was “bolded, in a distinct pink font, and set against a dark
background, drawing attention to it.” (Id. at 52). Further, the App advised
“that by ‘tapping Continue’ [Appellee] would be agreeing to the T&C[s].” (Id.)
FloatMe maintains that Appellee completed this sign-up process, thereby
assenting to the arbitration provision.
FloatMe also suggests that the trial court did not apply ordinary contract
principles in denying its motion to compel arbitration. As such, FloatMe argues
that the trial court violated the Federal Arbitration Act (“FAA”)2 by imposing
“a special, stricter rule for arbitration provisions, which makes enforcement of
them (but no other contractual provision) considerably more difficult.” (Id.
at 54). Among other cases, FloatMe cites Kindred Nursing Centers Ltd.
Partnership v. Clark, 581 U.S. 246, 137 S.Ct. 1421, 197 L.Ed.2d 806
(2017), for the proposition that “freely bargained-for arbitration and class
action waiver provisions cannot be selected for worse treatment based on a
uniquely rigorous burden of proof that does not apply to other contractual
2 9 U.S.C.A. § 1 et seq.
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provisions.” (Id. at 58).
In sum, FloatMe maintains that the allegations in Appellee’s complaint
fall within the scope of the arbitration provision, and FloatMe presented
unrefuted evidence of the binding nature of the arbitration provision. FloatMe
concludes that this Court must “reverse the trial court’s denial of FloatMe’s
preliminary objections seeking to compel arbitration and direct the trial court
to enter an order compelling individual arbitration of [Appellee’s] claims.”
(Id.at 64). We disagree.
“[O]ur review of a claim that the trial court improperly denied
preliminary objections in the nature of a petition to compel arbitration is
limited to determining whether the trial court’s findings are supported by
substantial evidence and whether the trial court abused its discretion in
denying the petition.” Cook v. Philadelphia Federal Credit Union, 353
A.3d 803, 809 (Pa.Super. 2026). “Whether an agreement to arbitrate
disputes exists is a question of law.” Neuhard v. Travelers Ins. Co., 831
A.2d 602, 604 (Pa.Super. 2003) (citation omitted).
Section 2 of the FAA provides that a “written provision in … a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction … shall be
valid, irrevocable, and enforceable, save upon such grounds as exist at law or
in equity for the revocation of any contract….” 9 U.S.C.A. § 2. Nevertheless,
this Court has previously addressed the relationship between the FAA and
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Pennsylvania law as follows:
Pennsylvania has a well-established public policy that favors
arbitration, and this policy aligns with the federal approach
expressed in the [FAA]. The fundamental purpose of the
FAA is to relieve the parties from expensive litigation and to
help ease the current congestion of court calendars. Its
passage was a congressional declaration of a liberal federal
policy favoring arbitration agreements.
This policy, however, was not intended to render arbitration
agreements more enforceable than other contracts, and the
FAA had not been designed to preempt all state law related
to arbitration. Rather, when addressing the specific issue of
whether there is a valid agreement to arbitrate, courts
generally should apply ordinary state-law principles that
govern the formation of contracts, but in doing so, must give
due regard to the federal policy favoring arbitration.
Duffy v. Tatum, 354 A.3d 14, 20-21 (Pa.Super. 2026) (quoting Pisano v.
Extendicare Homes, Inc., 77 A.3d 651, 660-61 (Pa.Super. 2013)).
This Court has established a two-step test to determine whether
arbitration should be compelled: “The first determination is whether a valid
agreement to arbitrate exists. The second determination is whether the
dispute is within the scope of the agreement.” Id. at 20 (quoting Smay v.
E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa.Super. 2004)). In discussing
the elements of a valid agreement, this Court has stated:
We find that it is imperative that … a person be fully
informed of their constitutional right to a jury trial and the
effect of waiving that right. Certainly, … it is essential that
the waiver be clearly described and evident that the person
waiving that right understand the right they are giving up
by agreeing to the contract.
Mindful of this, we stress that, in today’s day and age, online
users are pressured on a daily basis to form contracts with
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companies through their computer or smart phone. These
contracts cover a wide spectrum from long-term binding
contracts such as mortgage loans to consumer sales, to
registration for food delivery or ride share services. These
different Internet products lead to different expectations
and applications of legal doctrine. Certain corporations use
these online contracts with veiled terms to bind
unsophisticated, uninformed, and unsuspecting customers
to arbitration agreements from the convenience of their
couch.
Basically, the elements of a valid contract in Pennsylvania
are an offer, acceptance, consideration or mutual meeting
of the minds. There must be a meeting of the minds;
the very essence of an agreement is that the parties
mutually assent to the same thing. Whether particular
conduct expresses an offer and acceptance must be
determined on the basis of what a reasonable person in the
position of the parties would be led to understand by such
conduct under all of the surrounding circumstances.
Id. at 23 (internal citations and quotation remarks omitted) (emphasis
added).
In Duffy, the plaintiff used a web browser on his computer to access
the defendant corporation’s website. On the website, plaintiff clicked “Book a
Dolly” and selected various moving services. The website then required the
plaintiff to check a box labeled: “By checking this box I accept the Dolly Terms
of Service” before the plaintiff could register and complete his purchase. The
phrase “Dolly Terms of Service” was an underlined hyperlink to the
defendant’s full T&Cs. If the plaintiff clicked on the hyperlink, the defendant’s
T&Cs would appear in a new web browser window. The defendant’s T&Cs
included an arbitration provision. Nevertheless, the defendant’s website did
not require the plaintiff to click the underlined hyperlink to register and make
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purchases. The defendant’s website also did not require the plaintiff to scroll
to the bottom of the T&Cs to register and purchase services. Importantly, the
defendant’s website and application screen did not explicitly state that the
consumer was waiving his right to a jury trial when he agreed to the terms of
service.
The plaintiff later filed a civil action against the defendant corporation
alleging that he suffered injuries during the performance of the moving
services. The defendant filed preliminary objections to the complaint claiming
that the parties had agreed to mediation and arbitration. The trial court
overruled the preliminary objections.
On appeal, this Court observed that the case involved “an overarching
question of whether a person should be deprived of their constitutional right
to a jury trial when they ostensibly enter into an arbitration agreement
through hyperlinked terms of service on a website that the person never
clicked on, viewed, or read.” Id. at 20. This Court then identified four types
of “online consumer contracts,” which may bind a party:
“Browsewrap” exists where the online host dictates that
assent is given merely by using the site. “Clickwrap” refers
to the assent process by which a user must click “I agree,”
but not necessarily view the contract to which [he or] she is
assenting. “Scrollwrap” requires users to physically scroll
through an internet agreement and click on a separate “I
agree” button in order to assent to the terms and conditions
of the host website. “Sign-in wrap” couples assent to the
terms of a website with signing up for the use of the site’s
services.
Of these four online contract types, only a scrollwrap
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agreement requires a user actually to view (albeit not
necessarily read) the terms of the online contract before
manifesting assent. Courts have consistently found
scrollwrap agreements enforceable because they present
the consumer with a realistic opportunity to review the
terms of the contract and they require a physical
manifestation of assent.
Id. at 23-24. The Court noted that the agreement at issue was
a combination of sign-in wrap and clickwrap as [the
defendant’s] website did not require [the plaintiff] to scroll
through the terms by clicking agree. However, [the
plaintiff] could not proceed with the sign-up process without
clicking a box that stated “By checking this box I accept the
Dolly Terms of Service” and thereby binding himself to the
waiver of jury trial in the event of a dispute.
Id. at 24.
Ultimately, this Court emphasized the need to protect the individual’s
right to a jury trial:
We therefore find a strict burden of proof is necessary to
demonstrate a person’s unambiguous manifestation of
assent to arbitration. This requires: (1) explicitly stating on
the registration website and application screens that a
consumer is waiving their right to a jury trial when the
person agrees to the seller’s terms of service and the
registration cannot be completed until the person is fully
informed of that waiver; and (2) when the agreements are
available for viewing after a user has clicked on a hyperlink,
the waiver should not be hidden in the middle of the
document but should appear prominently in bold, capitalized
text.
Id. Based upon the foregoing, the Court concluded that the hyperlinked T&Cs
on the defendant’s website did not pass muster, and the plaintiff “was never
informed in an explicit and upfront manner that he was waiving his
constitutional right to seek damages through a jury trial.” Id. at 25.
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Following Duffy, we have applied its holding to other disputes involving
arbitration provisions placed within online consumer agreements. See Miller,
supra (evaluating agreement that was combination of sign-in wrap and
clickwrap; appellee could not complete purchase process without clicking
certain boxes; boxes did not state that appellee waived right to jury trial by
accepting T&Cs; boxes did not require appellee to click on hyperlink providing
T&Cs; arbitration provision was not prominently featured in T&Cs; since
agreement did not both conspicuously inform appellee of right to jury trial and
that he was waiving this right, appellee did not knowingly consent to
arbitration).3 See also Pierce v. Empower Finance Inc., 359 A.3d 1
(Pa.Super. 2026) (explaining application screens did explicitly state that user
was waiving right to jury trial by agreeing to appellant’s T&Cs, or that
registration process could not be completed until consumer is fully informed
of waiver).
Instantly, the registration process for FloatMe’s App did not require
users to view the T&Cs before continuing with the registration. As FloatMe
acknowledges in its brief:
The [trial] court immediately got off on the wrong foot when
it characterized the agreement as a “browsewrap”
agreement…. That, however, mischaracterizes FloatMe’s
sign-up process—which did not state that the user was
consenting to terms and conditions simply by using the
website, but instead required the user to affirmatively
3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019 for their persuasive value).
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click “Continue” on condition that doing so would
operate as a consent to the hyperlinked T&C[s] noted
on the same screen.
(FloatMe’s Brief at 53-54) (emphasis added). Thus, FloatMe’s App advanced
a combination of sign-in wrap and clickwrap agreement, as the App did not
require the user to scroll through the terms by clicking agree. See Duffy,
supra.
Moreover, the affidavit from Mr. Sanchez included a copy of FloatMe’s
T&Cs. Mr. Sanchez explained: “A true and accurate copy of FloatMe’s T&Cs
that a user would have seen on March 8, 2023, had they clicked the ‘Terms
and Conditions’ hyperlink within the sign-up screens, is attached hereto as
Exhibit 2 and was produced in discovery….” (Amended Affidavit of Mr.
Sanchez in Support of Preliminary Objections at ¶17). The T&Cs span twentyseven (27) pages. The following arbitration provision appears on the twentyfirst page:
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(Amended Affidavit of Mr. Sanchez in Support of Preliminary Objections at
Exhibit 2, ¶¶26-26.1). Subsequent paragraphs address the applicability of the
FAA, opting out of arbitration, and arbitration procedures and fees. (See id.
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at ¶¶26.2-26.10). Later, the twenty-fifth page of the T&Cs includes the
following waiver:
(Id. at ¶26.11).
Contrary to the requirements of the relevant case law, FloatMe’s T&Cs
allowed Appellee to complete her registration without being fully informed of
the rights she was waiving. Moreover, if Appellee had clicked the hyperlink to
view the T&Cs, the waiver was buried towards the end of the prolix document.
As a result, the parties’ agreement did not conspicuously inform Appellee of
her rights. See Duffy, supra.
To the extent that FloatMe relies on Kindred Nursing Centers, supra
for the proposition that the trial court applied a “uniquely rigorous burden of
proof” for the current arbitration provision, we find guidance from this Court’s
recent decision in Miller:
[The rule announced in Duffy and Pierce] does not violate
the FAA because it merely places arbitration agreements on
“equal footing” with other types of agreements that must be
certain that the waiver of a constitutional right is both
informed and knowing; as in, agreements to permit
confession of judgment in civil cases and agreements by
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criminal defendants to waive their right to trial by jury.
* * *
Thus, our treatment of arbitration provisions in … Duffy and
Pierce do not discriminate against arbitration agreements;
they merely impose the same burden and consequent
protection that already govern agreements in other areas of
Pennsylvania law where a constitutional right is being
waived.
Miller, supra at *12, *13.
Based upon the foregoing, Appellee did not unambiguously manifest her
assent to the terms of FloatMe’s arbitration agreement. See Duffy, supra.
Because there was no mutual assent, a valid agreement did not exist. Id.
Thus, the trial court did not abuse its discretion in overruling FloatMe’s
preliminary objections seeking to compel arbitration. See Cook, supra.
Accordingly, we affirm, albeit on other grounds.4
Order affirmed.
DATE: 10/1/2026
4 See Lynn v. Nationwide Ins. Co., 70 A.3d 814, 823 (Pa.Super. 2013) (stating appellate court may affirm trial court’s ruling on any basis supported by record on appeal).
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