Provenzano, D. v. Ohio Valley General Hosp. , 121 A.3d 1085 ( 2015 )

J-A11035-14
2015 Pa. Super. 179
DAVID A. PROVENZANO, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OHIO VALLEY GENERAL HOSPITAL,
MARK R. SCHOLL, GENE M.
BATTISTELLA, D.O., MARK S. BRENNAN,
JOSEPH C. CIRELLI, DAVID W. SCOTT,
JANE A. DIXON, KURT R. GINGRICH,
MICHAEL E. LALLY, M.D., ANTHONY F.
LISANTI, DANIEL B. LONG, VICTORIA
MELL, TADESSA TEFERA
Appellants No. 1270 WDA 2013
Appeal from the Order Entered July 23, 2013
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 13-10794
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
OPINION BY GANTMAN, P.J.: FILED AUGUST 26, 2015
Appellants, Ohio Valley General Hospital (“Hospital”), Mark R. Scholl,
Gene M. Battistella, D.O., Mark S. Brennan, Joseph C. Cirelli, David W. Scott,
Jane A. Dixon, Kurt R. Gingrich, Michael E. Lally, M.D., Anthony F. Lisanti,
Daniel B. Long, Victoria Mell, and Tadessa Tefera (collectively “Board”)
appeal from the order entered in the Allegheny County Court of Common
Pleas, which overruled Hospital’s and the Board’s preliminary objections
(based on the existence of an arbitration provision in the parties’
employment agreement as well as a prior, pending arbitration proceeding) to
the civil complaint of Appellee, David A. Provenzano, M.D. For the following
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reasons, we reverse and remand for referral of all of Appellee’s claims to the
pending arbitration proceeding.1
The relevant facts and procedural history of this case are as follows.
Appellee and Hospital entered into an employment agreement on May 27,
2008, for Appellee to perform medical services, subject to the terms and
conditions set forth in the agreement. The agreement was effective
retroactive to September 19, 2007, and included various terms governing
Appellee’s professional representations, warranties, and covenants, general
professional duties, fees and third party reimbursements, additional
professional obligations, compensation, benefits, working facilities, and set-
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1
“As a general rule, an order [overruling] a party’s preliminary objections is
interlocutory and, thus, not appealable as of right.” Callan v. Oxford Land
Development, Inc., 858 A.2d 1229, 1232 (Pa.Super. 2004). Rule 311 of
the Pennsylvania Rules of Appellate Procedure, however, allows an
interlocutory appeal as of right from any order which is made appealable by
statute. Pa.R.A.P. 311(a)(8). The Uniform Arbitration Act permits an
immediate appeal from a “court order denying an application to compel
arbitration made under [S]ection 7304 (relating to proceedings to compel or
stay arbitration).” 42 Pa.C.S.A. § 7320(a)(1). Section 7304 of the Uniform
Arbitration Act is applicable by way of 42 Pa.C.S.A. 7342(a) (incorporating
specified sections of Uniform Arbitration Act in common law arbitration).
Here, the employment contract contained an arbitration provision. Hospital
and the Board filed preliminary objections asserting, inter alia, the pendency
of the arbitration as well as the arbitration clause in the employment
contract. The court’s order overruling the preliminary objections, therefore,
is an interlocutory order appealable as of right. See Callan, supra
(reviewing order overruling vendor’s preliminary objections in nature of
petition to compel arbitration); Midomo Co., Inc. v. Presbyterian
Housing Development Co., 739 A.2d 180 (Pa.Super. 1999) (holding order
overruling preliminary objections to compel arbitration was interlocutory
order appealable as of right).
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offs. The agreement also addressed special circumstances, including
disability or death of Appellee during the term of the agreement, and
included numerous other miscellaneous provisions. Of particular relevance
to the present case are paragraphs 6 and 13. Paragraph 6 states:
6. TERM AND TERMINATION.
(a) Initial Term. The initial term of this Agreement
shall begin on the Effective Date and shall continue in
effect for a period of thirty-six (36) months (the “Initial
Term”) unless Employee dies or becomes disabled
pursuant to the provisions of Section 12, this Agreement
expires or this Agreement is terminated earlier as provided
for herein. Employee may terminate this agreement within
120 days’ notice to employer.
(b) Renewal. Unless either party provides written
notice of its intent not to renew this Agreement at least
one hundred twenty (120) days prior to the end of the
Initial Term or any Renewal Term (as defined herein),
upon expiration of the Initial Term, this Agreement will
automatically renew for successive three year terms, which
such terms may expire or be terminated earlier as
provided for herein (the “Renewal Terms”; the Initial Term
and the Renewal Terms are hereinafter referred to as the
“Term”).
(c) Termination. In addition to termination rights set
forth elsewhere in this Agreement, the parties shall have
the following rights to terminate this Agreement.
(i) Employee shall have the right to terminate this
Agreement at any time for any reason upon
120 days prior written notice, provided that, no
such termination be effective before September
19, 2009. The Hospital shall have the right to
terminate this Agreement at any time for any
reason upon one hundred twenty (120) days
prior written notice to the other party. In the
event the Hospital terminates this Agreement
pursuant to this Section 6(c)(i) or 6(b) or in the
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event Employee terminates this Agreement due
to a change in control or commitment specified
in Section 6(d) or (e), the Hospital shall pay
Employee two years’ annual base salary (or
twice the amount of the most recent year in
which Employee was employed full time, if
Employee has elected to enter private practice
pursuant to subsection (f) of this section), as
severance pay (including Medical Director
stipend under Section 7(c)), and shall
reimburse Employee’s legal fees if Employee
deems it necessary to file legal action to
enforce this provision. The parties have agreed
that said amount is reasonable.
(ii) Hospital may terminate this Agreement,
effective immediately upon written notice to
Employee, for “good cause” or pursuant to
Hospital’s authority to terminate this
Agreement as expressly provided for in other
provisions of this Agreement. “Good cause”
means any of the following events:
(A) Employee’s medical license or any related
license, certification, or registration
expires or is revoked, suspended or
limited for any reason, provided that such
suspension or limitation substantially
impairs Employee’s performance of the
terms of this Agreement and is pending
an appeal by Employee;
(B) Employee is convicted of any offense
punishable as a felony or is convicted of a
misdemeanor involving moral turpitude or
immoral conduct, or Employee commits
any act for which civil money penalties or
other sanctions may be imposed under
Medicare, Medical Assistance or any other
governmental health reimbursement
system, including but not limited to,
suspension from the program;
(C) Employee commits fraud, embezzlement,
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misappropriation or the like with respect
to Hospital’s business or assets;
(D) Employee is sanctioned by the Medical
Board of Pennsylvania, or its equivalent,
or by any state or local peer review or
quality assurance organization, or by
Medicare, Medicaid or any third-party
payer, provided that such sanction is final
and not pending appeal;
(E) Employee breaches any of Employee’s
representations, warranties or covenants
under this Agreement, and such breach is
material;
(F) Employee breaches any of the applicable
terms of the Exclusive Agreement for pain
services at the Hospital;
(G) Employee fails to perform any of the
Employee’s duties and obligations under
this Agreement as determined by the
Hospital in its sole discretion and such
failure continues for a period of fifteen
(15) days after the Hospital notifies
Employee of such failure;
(H) Employee commits any intentional or
willful conduct that is, in the sole opinion
of the Hospital, acting reasonably,
injurious to the Hospital, including, but
not limited to, violation of Hospital
policies on sexual or other harassment;
(I) Employee commits any instance of
insobriety or drug abuse while rendering
services hereunder; Employee has an
addictive disease which, in the Hospital’s
reasonable judgment, could impair
Employee’s ability to perform Employee’s
duties hereunder, or Employee has
diverted a controlled substance; or
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(J) Employee fails to perform Employee’s
professional duties in a manner
commensurate with the prevailing
standard of performance in the field of
chronic pain management.
Excluding the following above items; A, B, C, D, G AND
I, if a breach occurs, the Hospital will notify employee of
said breach and provide for a cure period no greater than
30 days from the date of the notification. Should the
employee cure the breach, the agreement remains in
effect and the employee continues his duties as outlined.
(d) Change of Control. In addition to termination
rights set forth elsewhere in this Agreement, the Employee
shall have the right to terminate this Agreement upon 30
days written notice in the event that there is a change in
control of the Hospital. As used in this Agreement, the
term “change of control” means: (i) merger or
consolidation of the Hospital with or into any other entity;
(ii) transfer of all or substantially all of the Hospital’s
assets to any other entity; or (iii) any transaction pursuant
to which the right to elect, appoint or designate 50% or
more of the directors of the Hospital is vested in another
entity.
(e) Change in Commitment. In addition to
termination rights set forth elsewhere in this Agreement,
the Employee shall have the right to terminate this
Agreement upon 90 days written notice if there has been a
substantial change in the Hospital’s commitment to
support the growth of the Pain Management Program. If
Employee seeks to terminate the Agreement on this basis,
he shall first seek a meeting of the officers of the Hospital;
and both parties shall in good faith use their best efforts to
resolve such dispute.
(f) Private Practice. In addition to termination rights
set forth elsewhere in this Agreement, if Employee decides
to enter into private practice, Employee shall provide the
Hospital with 30 days written notice, and, on the date
specified in the notice on which Employee shall enter
private practice, the provisions of this Agreement that
relate to services as the Medical Director of the Pain
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Management Clinics shall remain in full force and effect,
and all other provisions of this Agreement (i.e., those
related to employment status for professional services)
shall be terminated, and of no further force and effect,
including, but not limited to, the employment benefits in
Section 8 and the base salary and additional compensation
provisions set forth in Section 7(a). So long as Employee
remains Medical Director of the Pain Management Clinics,
he will be entitled to conduct his private practice at
Hospital facilities as the exclusive provider of pain
management services and will be entitled to the relevant
medical records. However, Employee shall remain eligible
to receive the annual stipends set forth in Section 7(c).
(Physician Employment Agreement at ¶6, pages 4-7; R.R. at 14a-17a).
Paragraph 13 of the agreement states:
13. DISPUTES: REIMBURSEMENT OF
ATTORNEY'S FEES AND COSTS.
(a) Any disputes regarding the interpretation or
application of this Agreement shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. Any such
arbitration shall occur before a single arbitrator sitting in
Pittsburgh, Pennsylvania. The arbitrator shall be limited to
interpreting and applying the terms of this Agreement.
The arbitrator’s decision shall be final and binding upon the
parties hereto.
(b) The parties hereto shall jointly share the costs of
the arbitration, but the Hospital shall fully reimburse
Employee for any reasonable attorney’s fees and costs (not
including damage awards and settlements) incurred by
Employee in the event of a dispute between the Hospital
and Employee regarding the enforcement of any terms or
conditions of this Agreement. Employee shall submit to
the Hospital true, correct and complete copies of bills from
Employee’s attorney, and the Hospital shall remit payment
thereof to Employee within fifteen (15) days of delivery
thereof to the Hospital.
(Id. at ¶13, page 10; R.R. at 20a). Appellee and former Hospital Board
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Chair, Edward A. Nicholson, Ph.D., signed the agreement, which was
witnessed by Appellee’s father, William F. Provenzano, who was then serving
as Hospital’s Chief Executive Officer. Following the original three-year term,
the agreement automatically renewed for a second three-year term
(September 20, 2010 through September 19, 2013).
By letter dated February 15, 2013, Hospital notified Appellee that the
agreement would not be renewed for a third term. The letter stated the
decision not to renew the agreement was ratified by the full Board of
Directors at its meeting on January 29, 2013. The letter also said: “Because
the decision not to renew will not trigger any obligation on the part of the
Hospital to pay severance pay pursuant to Paragraph 6(c) of the
Employment Agreement, the Hospital wishes to provide you with more
notice than is required under the Employment Agreement.” (Letter dated
2/15/13; R.R. at 23a). Upon receipt of the notice, Appellee invoked ¶6(c)(i)
of the agreement, claiming Hospital was compelled to pay Appellee
severance in the form of two years’ annual base salary, calculated to be
$850,000.00. Following unsuccessful discourse concerning Hospital’s refusal
to pay the severance as claimed due, Hospital filed a complaint in arbitration
on or about April 19, 2013, before the American Arbitration Association, at
AAA Case No. 55 116 00075 13. (See Complaint in Arbitration at 1-17; R.R.
at 71a−87a.) While the arbitration was pending, Appellee filed a civil
complaint on June 7, 2013, alleging two counts: (1) breach of contract
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against Hospital and (2) violation of the Pennsylvania Wage Payment and
Collection Law (“WPCL”) against Hospital and its Officers and Directors.
(See Appellee’s Complaint in Civil Action, filed 6/7/13, 1-8; R.R. at 3a−10a.)
In Count I of his civil complaint for breach of contract against Hospital,
Appellee averred he has an employment agreement with Hospital, Hospital
breached the agreement, failed to rectify and cure its breach, and as a result
Hospital is liable to Appellee for $850,000.00 plus interest as well as
Appellee’s attorneys’ fees and costs incurred to enforce the parties’
employment agreement. In Count II, Appellee averred Hospital is Appellee’s
“employer” for purposes of the WPCL and is liable to Appellee for wages,
“liquidated damages,” and the costs of the suit including reasonable
attorneys’ fees. Appellee then named each Board member individually and
together and identified them as “Board members and/or officers of Hospital”
who “individually and collectively exercise policy-making functions and/or
have an active role in Hospital’s decision-making process regarding payment
of wages including the decision not to pay [Appellee] the Severance Pay he
is owed per the Employment Agreement.” (Id. at 8, ¶39; R.R. at 10a).
Appellee averred the Board members are jointly and severally liable for
Appellee’s listed categories of statutory damages. Appellee attached to the
complaint a copy of the employment agreement at issue as Exhibit A and a
copy of the 2/15/13 notice letter as Exhibit B. On the same date, Appellee
also filed a petition to stay the pending arbitration.
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Hospital and the Board timely filed preliminary objections to Appellee’s
civil complaint on June 20, 2013: (1) asserting the pendency of the
arbitration action; (2) averring the claims at issue are the subject of a valid
arbitration agreement; (3) observing Appellee’s claims are premature,
because severance pay would not be due in any event until the expiration of
the employment agreement in September 2013; (4) asserting Appellee
failed to state a claim upon which relief may be granted against the Board;
and (5) requesting dismissal of the civil complaint and other relief as
available and appropriate. (See Hospital’s Preliminary Objections, filed
6/20/13, at 1-6; R.R. at 112a−119a; the Board’s Preliminary Objections,
filed 6/20/13, at 1-5; R.R. at 120a−126a.)
The trial court overruled both sets of preliminary objections by order
dated July 23, 2013, with notice per Pa.R.C.P. 236 sent on July 26, 2013,
and directed Hospital and the Board to answer Appellee’s civil complaint.
The court expressly said it overruled the preliminary objections because “the
dispute is broader than the hospital corporate entity and [Appellee] did not
agree to have an Arbitrator hear his [WPCL] Claim. Further, the chairman
and individual board members have not agreed to Arbitration.[2] Moreover,
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2
We interpret this phrase of the court’s decision to mean that the director
and individual board members did not sign the employment agreement. The
record makes clear, however, that former Hospital Board Chair, Edward A.
Nicholson, Ph.D., signed the employment agreement as the representative
of Hospital.
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there is no Appellate authority cited to me to support [Hospital]. Hence my
ruling.” (Trial Court Opinion, filed September 6, 2013, at 3-4). Although
Appellee had not raised the argument, the court independently relied on
Section 260.7 of the WPCL, which provides: “Nothing contained in this act
shall in any way limit or prohibit the payment of wages or compensation at
more frequent intervals or in greater amounts or in full when or before due.
No provision of this act shall in any way be contravened or set aside by a
private agreement.” 43 P.S. § 260.7. The court did not directly address
Appellee’s motion to stay the arbitration proceedings.
On August 6, 2013, Hospital and the Board timely filed their notice of
appeal. The trial court did not order a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Hospital and
the Board filed none.
Hospital and the Board raise two issues for our review:
MUST [APPELLEE’S] CLAIMS AGAINST [HOSPITAL] BE
SUBMITTED TO ARBITRATION?
ASSUMING [APPELLEE’S] CLAIMS AGAINST [HOSPITAL]
MUST BE SUBMITTED TO ARBITRATION, MUST HIS
CLAIMS AGAINST THE [BOARD] ALSO BE ARBITRATED?
(Hospital and Board’s Brief at 4).
For purposes of disposition, we address Hospital’s and the Board’s
issues together. Initially, they contend the claims in Appellee’s civil
complaint are wholly based on his purported contractual right to severance
pay under the employment agreement. Specifically, Hospital and the Board
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argue the agreement contains a comprehensive arbitration clause,
mandating binding arbitration for all disputes regarding the interpretation or
application of the agreement. Hospital and the Board insist Appellee’s claims
regarding severance pay are directly related to the interpretation and
application of the agreement, and the court should have referred the entire
controversy to arbitration. Additionally, Hospital and the Board maintain
Pennsylvania law does not necessarily compel a “court” to be the sole
judicial forum for WPCL claims; courts frequently direct WPCL claims to
arbitration. Hospital and the Board submit Appellee’s WPCL claim is fully
subject to a decision in arbitration, as it is virtually identical to the claim
pending in the arbitration forum.
Hospital and the Board also assert Appellee named the Board
members as parties to his civil complaint “in an effort to sidestep
the…arbitration clause” in the employment agreement. (Hospital’s and
Board’s Brief at 23). Hospital and the Board reason the liability of the Board
is “entirely derivative of, and contingent upon, [Hospital’s] liability.” (Id. at
24). Hospital and the Board argue Appellee “needlessly and gratuitously
seeks to collect the identical severance pay allegedly due from [Hospital]
and every officer and volunteer director thereof pursuant to the [WPCL]
even though [Hospital] has already represented that it will pay any
severance payment determined by the arbitrator(s)….” (Id. at 24-25)
(emphasis in original). Hospital and the Board maintain the Board members
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are in privity with Hospital, so the arbitration agreement covers the Board
members under traditional agency principles which bind officers, directors,
and/or agents to an organization’s agreement to arbitrate, even if they were
not direct signatories to the employment agreement at issue.
Additionally, Hospital and the Board aver the pending arbitration is a
“prior pending action,” because it involves the same claims, parties, and
relief as Appellee’s civil action. Specifically, Hospital and the Board
represent that the arbitration proceeding is competent to determine what, if
anything, Appellee is owed under the employment agreement and/or the
WPCL; the pending arbitration involves the same claims, parties, and relief
sought; the pending arbitration already concerns the question of whether
Appellee is entitled to severance under his employment agreement; and his
civil action concerns the same claim, i.e., severance pay. Hospital and the
Board submit the prior pending arbitration action bars Appellee’s civil
lawsuit. Hospital and the Board conclude the court should have sustained
their preliminary objections on these grounds and referred all of Appellee’s
claims to arbitration. We agree.
Our standard of review for an order overruling preliminary objections
in the nature of a petition to compel arbitration is:
[L]imited 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.
Where a party to a civil action seeks to compel arbitration,
a two-part test is employed. First, the trial court must
establish if a valid agreement to arbitrate exists between
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the parties. Second, if the trial court determines such an
agreement exists, it must then ascertain if the dispute
involved is within the scope of the arbitration provision. If
a valid arbitration agreement exists between the parties,
and the plaintiff’s claim is within the scope of the
agreement, the controversy must be submitted to
arbitration.
Callan, supra at 1233 (internal citations omitted). In making these
determinations, courts must bear in mind:
(1) arbitration agreements are to be strictly
construed and not extended by implication; and (2)
when parties have agreed to arbitrate in a clear and
unmistakable manner, every reasonable effort should
be made to favor the agreement unless it may be
said with positive assurance that the arbitration
clause involved is not susceptible to an interpretation
that covers the asserted dispute.
To resolve this tension, courts should apply the rules of
contractual constructions, adopting an interpretation that
gives paramount importance to the intent of the parties
and ascribes the most reasonable, probable, and natural
conduct to the parties. In interpreting a contract, the
ultimate goal is to ascertain and give effect to the intent of
the parties as reasonably manifested by the language of
their written agreement.
Id. (internal citations and quotation marks omitted). See also Warwick
Tp. Water and Sewer Authority v. Boucher & James, Inc., 851 A.2d
953, 955 (Pa.Super. 2004), appeal denied, 583 Pa. 696, 879 A.2d 783
(2005) (reiterating that parties’ intent governs the scope of arbitration
agreement and is ascertained under general rules of contract interpretation);
Espenshade v. Espenshade, 729 A.2d 1239, 1243 (Pa.Super. 1999)
(stating: “In ascertaining the intent of the parties to a contract, it is their
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outward and objective manifestations of assent, as opposed to their
undisclosed and subjective intentions, that matter”).
[T]he court may take into consideration the surrounding
circumstances, the situation of the parties, the objects
they apparently have in view, and the nature of the
subject-matter of the agreement. The court will adopt an
interpretation that is most reasonable and probable
bearing in mind the objects which the parties intended to
accomplish through the agreement.
Laudig v. Laudig, 624 A.2d 651, 653 (Pa.Super. 1993). “If it appears that
a dispute relates to a contract’s subject matter and the parties agreed to
arbitrate, all issues of interpretation and procedure are for the arbitrators to
resolve.” Warwick Tp. Water and Sewer Authority, supra at 955.
[T]he United States Supreme Court has expressed the
concern that allowing a party to invoke judicial review to
challenge the parties’ overall agreement (and therefore
also an arbitration component) would contravene
Congress’ purpose to facilitate a just and speedy resolution
of controversies that is not subject to delay and/or
obstruction in the courts. Accordingly, the [U.S.] Supreme
Court has determined that a challenge to the validity of a
contract as a whole, and not specifically to an arbitration
clause, must be presented to the arbitrator and not the
courts. The courts may consider, in the first instance,
only those challenges that are directed solely to the
arbitration component itself.
Salley v. Option One Mortg. Corp., 592 Pa. 323, 332-33, 925 A.2d 115,
120 (2007). “The existence of an [arbitration] agreement and whether a
dispute is within the scope of the [arbitration] agreement are questions of
law and our review is plenary.” Warwick Tp. Water and Sewer
Authority, supra at 955. See also Pisano v. Extendicare Homes, Inc.,
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77 A.3d 651 (Pa.Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233
(2014); McNulty v. H&R Block, Inc., 843 A.2d 1267, 1272 (Pa.Super.
2004), appeal denied, 578 Pa. 709, 853 A.2d 362 (2004) (stating same).
Pennsylvania law endorses the nationally liberal policy favoring
arbitration embodied in the Federal Arbitration Act, at 9 U.S.C. §§ 1−16
(“FAA”):
[The enactment of the Federal Arbitration Act] expresses a
liberal federal policy favoring arbitration agreements.
[Congress’] purpose was to overcome state legislative and
judicial efforts to undermine the enforceability of
arbitration agreements, inter alia, by establishing a
substantive rule of federal law placing such agreements
upon the same footing as other contracts. The federal
statute thus requires that a written provision…to settle by
arbitration a controversy thereafter arising out of such
contract or transaction…shall be valid, irrevocable, and
enforceable, save upon any grounds at law or in equity for
the revocation of any contract.2
2
Pennsylvania law reflects an identical policy
embodied in the Uniform Arbitration Act. See 42
Pa.C.S. § 7303 (“A written agreement to subject any
existing controversy to arbitration or a provision in a
written agreement to submit to arbitration any
controversy thereafter arising between the parties is
valid, enforceable, and irrevocable, save upon such
grounds as exist at law or in equity relating to the
validity, enforceability or revocation of any
contract”).
Salley, supra at 330, 925 A.2d at 118-19 (most internal citations and
quotation marks omitted). See also Ross Development Co. v. Advanced
Bldg. Development, Inc., 803 A.2d 194, 196 (Pa.Super. 2002) (reiterating
historical perspective in Pennsylvania law favoring arbitration); Smith v.
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Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa.Super. 1997) (stating:
“As a matter of public policy, the courts of this Commonwealth strongly favor
the settlement of disputes by arbitration”).
A “broad” arbitration clause in a contract is one that is unrestricted,
contains language that encompasses all disputes which relate to contractual
obligations, and generally includes “all claims arising from the contract
regardless of whether the claim sounds in tort or contract.” Smay v. E.R.
Stuebner, Inc., 864 A.2d 1266, 1276 (Pa.Super. 2004). See also
Brayman Const. Corp. v. Home Ins. Co., 319 F.3d 622, 625 (3rd Cir.
(Pa.) 2006) (stating, “the presumption [in favor of arbitrability] is
particularly applicable where the [arbitration] clause is….broad”). Thus,
where the arbitration provision is a broad one, and “[i]n the absence of any
express provision excluding a particular grievance from arbitration, …only
the most forceful evidence of a purpose to exclude the claim from arbitration
can prevail.” E.M. Diagnostic Systems, Inc. v. Local 169, Intern.
Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 812 F.2d 91, 95 (3rd Cir.(N.J.) 1987); Miron v. BDO Seidman,
LLP, 342 F. Supp. 2d 324, 329 (E.D.Pa. October 20, 2004) (reiterating: “To
overcome this presumption as applied to broad arbitration agreements, a
party must either establish the existence of an express provision excluding
the grievance from arbitration, or provide ‘the most forceful evidence of a
purpose to exclude the claim from arbitration’”). Therefore:
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Where a contract dispute arises between parties to a
contract containing an unlimited arbitration clause, the
parties must resolve their dispute through arbitration.
Unless the parties impose some limitation on the
arbitrator’s authority, the arbitrator may decide all matters
necessary to dispose of any disputed claims subject to
arbitration and, the court may not impose any restrictions
sua sponte. Accordingly, “all” contract disputes does mean
“all” contract disputes unless otherwise agreed by the
parties.
Callan, supra at 1233 (internal citations omitted). Under the FAA, “any
doubts concerning the scope of arbitrable issues should be resolved in favor
of arbitration.” Brayman Const. Corp., supra. See also Falls v. 1CI,
Inc. et al., 57 A.3d 521, 528 (Md.App. 2012) (stating federal policy
uniformly holds “even ambiguous arbitration clauses must be interpreted in
favor of arbitration”).
On a related topic, generally only parties to an arbitration agreement
are subject to arbitration. Smay, supra at 1271. Nevertheless,
Pennsylvania law has held that non-signatories to an arbitration agreement
can enforce the agreement when there is an “obvious and close nexus”
between the non-signatories and the contract or the contracting parties.
Dodds v. Pulte Home Corp., 909 A.2d 348 (Pa.Super. 2006) (holding
plaintiffs’ joinder of defendant parent corporation, who was non-signatory to
contract, and assertion of claims for fraud and unfair trade practices against
non-signatory, did not defeat arbitration agreement; gist of action was
contract which bound all parties to arbitration).
One “obvious and close nexus” between the non-signatories and the
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contract or the contracting parties arises from the relationship between a
signatory principal and a non-signatory agent; if the principal is bound by an
arbitration agreement, its agents, employees and representatives are
generally likewise bound and can enforce the arbitration agreement, even as
non-signatories to the agreement. See, e.g., Arthur Andersen LLP, et al.
v. Carlisle, et al., 556 U.S. 624, 129 S. Ct. 1896, 173 L. Ed. 2d 832 (2009)
(holding traditional principles of state contract law can be used to allow
nonparties to contract to enforce or be bound by arbitration provision in
contract; nonparties cannot be categorically barred from arbitration relief);
Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1 (1st Cir.
(Mass.) 2014) (stating “there are exceptions allowing non-signatories to
compel arbitration” and “[a] non-signatory may be bound by or acquire
rights under an arbitration agreement under ordinary state-law principles of
agency or contract”); Pritzker v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 7 F.3d 1110 (3rd Cir. (Pa) 1993) (holding agent was subject to
contractual arbitration provision to which principal was bound; therefore
arbitration agreement applied to agent; “Agency logic has been applied to
bind non-signatory business entities to arbitration agreements”; “Where the
parties to such a clause unmistakably intend to arbitrate all controversies
which might arise between them, their agreement should be applied to
claims against agents or entities related to the signatories”); Arnold v.
Arnold Corp.−Printed Communications for Business, 920 F.2d 1269,
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1281-82 (6th Cir. (Ohio) 1990) (holding non-signatory officers of corporation
and members of its board of directors were entitled to arbitration by virtue
of arbitration agreement entered into by corporation, because arbitration
agreement applied to them as corporate agents).
Regarding arbitrability of statutory claims, the United States Supreme
Court has articulated its view as follows:
The Federal Arbitration Act…was intended to reverse
centuries of judicial hostility to arbitration agreements by
placing arbitration agreements upon the same footing as
other contracts. The Arbitration Act accomplishes this
purpose by providing that arbitration agreements shall be
valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of
any contract. …
The Arbitration Act establishes a federal policy favoring
arbitration, requiring that we rigorously enforce
agreements to arbitrate. This duty to enforce arbitration
agreements is not diminished when a party bound by an
agreement raises a claim founded on statutory rights.
…we are well past the time when judicial suspicion of the
desirability of arbitration and of the competence of arbitral
tribunals should inhibit enforcement of the Act in
controversies based on statutes. Absent a well-founded
claim that an arbitration agreement resulted from the sort
of fraud or excessive economic power that would provide
grounds for the revocation of any contract, the Arbitration
Act provides no basis for disfavoring agreements to
arbitrate statutory claims by skewing the otherwise
hospitable inquiry into arbitrability.
The Arbitration Act, standing alone, therefore mandates
enforcement of agreements to arbitrate statutory claims.
Like any statutory directive, the Arbitration Act’s mandate
may be overridden by a contrary congressional command.
The burden is on the party opposing arbitration, however,
to show that Congress intended to preclude a waiver of
judicial remedies for the statutory rights at issue. If
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Congress did intend to limit or prohibit waiver of a judicial
forum for a particular claim, such an intent will be
deducible from [the statute’s] text or legislative history, or
from an inherent conflict between arbitration and the
statute’s underlying purposes.
Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 226-27, 107
S. Ct. 2332, 2337-38, 96 L. Ed. 2d 185, ___ (1987) (some internal citations
and all quotation marks omitted) (stating that general language found in
statute at issue, which declares void “[a]ny condition, stipulation, or
provision binding any person to waive compliance with any provision of [the
Act],” does not indicate Congressional intent to require judicial forum for
resolution of statutory claims at issue). Significantly, the Supreme Court
has since held that the FAA preempts statutes which prohibit pre-dispute
agreements to arbitrate particular types of claims, because those statutes
are contrary to the terms and coverage of FAA. Marmet Health Care
Center, Inc. v. Brown, ___ U.S. ___, 132 S. Ct. 1201, 182 L. Ed. 2d 42
(2012).
When state law prohibits outright the arbitration of a
particular type of claim, the analysis is straightforward:
The conflicting rule is displaced by the FAA. AT&T
Mobility LLC v. Concepcion, ___ U.S. ___, ___, 131
S. Ct. 1740, 1747, 179 L. Ed. 2d 742 (2011). … See also,
e.g., Preston v. Ferrer, 552 U.S. 346, 356, 128 S. Ct.
978, 169 L. Ed. 2d 917 (2008) (FAA pre-empts state law
granting state commissioner exclusive jurisdiction to
decide issue the parties agreed to arbitrate);
Mastrobuono v. Shearson Lehman Hutton, Inc., 514
U.S. 52, 56, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995) (FAA
pre-empts state law requiring judicial resolution of claims
involving punitive damages); Perry v. Thomas, 482 U.S.
483, 491, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987) (FAA
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pre-empts state-law requirement that litigants be
provided a judicial forum for wage disputes);
Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct.
852, 79 L. Ed. 2d 1 (1984) (FAA pre-empts state financial
investment statute’s prohibition of arbitration of claims
brought under that statute).
Id. at ___, 132 S.Ct. at 1203-04, 182 L.Ed.2d at ___ (some emphasis
added) (quotation marks omitted). The essential and “overarching purpose
of the FAA…is to ensure the enforcement of arbitration agreements
according to their terms so as to facilitate streamlined proceedings” and
resolution of claims. Concepcion, supra at ___, 131 S.Ct. at 1748, 179
L.Ed.2d at ___.
This purpose is readily apparent from the FAA’s text.
Section 2 makes arbitration agreements “valid,
irrevocable, and enforceable” as written (subject, of
course, to the saving clause); § 3 requires courts to stay
litigation of arbitral claims pending arbitration of those
claims “in accordance with the terms of the agreement”;
and § 4 requires courts to compel arbitration “in
accordance with the terms of the agreement” upon the
motion of either party to the agreement (assuming that
the “making of the arbitration agreement or the failure…to
perform the same” is not at issue). In light of these
provisions, we have held that parties may agree to limit
the issues subject to arbitration, …to arbitrate according to
specific rules, …and to limit with whom a party will
arbitrate its disputes, ….
The point of affording parties discretion in designing
arbitration processes is to allow for efficient, streamlined
procedures tailored to the type of dispute. It can be
specified, for example, that the decisionmaker be a
specialist in the relevant field, or that proceedings be kept
confidential to protect trade secrets. And the informality
of arbitral proceedings is itself desirable, reducing the cost
and increasing the speed of dispute resolution.
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Id. at ___, 131 S.Ct. at 1748-49, 179 L.Ed.2d at ___.
With respect to the question of whether Pennsylvania’s WPCL statutory
claims are arbitrable, we first examine the relevant provisions of Section
260.9a, which provide as follows:
§ 260.9a. Civil remedies and penalties
(a) Any employe or group of employes, labor
organization or party to whom any type of wages is
payable may institute actions provided under this act.
(b) Actions by an employe, labor organization, or
party to whom any type of wages is payable to recover
unpaid wages and liquidated damages may be
maintained in any court of competent jurisdiction, by
such labor organization, party to whom any type of wages
is payable or any one or more employes for and in behalf
of himself or themselves and other employes similarly
situated, or such employe or employes may designate an
agent or representative to maintain such action or on
behalf of all employes similarly situated. Any such
employe, labor organization, party, or his representative
shall have the power to settle or adjust his claim for
unpaid wages.
(c) The employe or group of employes, labor
organization or party to whom any type of wages is
payable may, in the alternative, inform the secretary of
the wage claim against an employer or former employer,
and the secretary shall, unless the claim appears to be
frivolous, immediately notify the employer or former
employer of such claim by certified mail. If the employer
or former employer fails to pay the claim or make
satisfactory explanation to the secretary of his failure to do
so within ten days after receipt of such certified
notification, thereafter, the employer or former employer
shall be liable for a penalty of ten percent (10%) of that
portion of the claim found to be justly due. A good faith
dispute or contest as to the amount of wages due or the
good faith assertion of a right of set-off or counter-claim
shall be deemed a satisfactory explanation for nonpayment
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of such amount in dispute or claimed as a set-off or
counter-claim. The secretary shall have a cause of action
against the employer or former employer for recovery of
such penalty and the same may be included in any
subsequent action by the secretary on said wage claim or
may be exercised separately after adjustment of such
wage claim without court action.
(d) In any civil action brought under the provisions of
this act, the Secretary of Labor and Industry may require
the employer to post bond or security to secure payment
of the entire claim of the employe with credit in the
amount of any good faith assertion of a right of set-off or
counter-claim. Such bond or security shall be posted in
the court where the civil action is brought. The request for
bond or security shall be signed by the secretary and shall
provide that such bond or security in the amount stated
shall be posted within 30 days of service thereof on the
employer. If such bond or security is not posted within the
30-day period, the employer will be deemed to have
admitted his liability and execution may immediately
ensue.
* * *
(f) The court in any action brought under this section
shall, in addition to any judgment awarded to the plaintiff
or plaintiffs, allow costs for reasonable attorneys’ fees of
any nature to be paid by the defendant.
43 P.S. § 260.9a(a)-(d), (f) (emphasis added). The trial court also referred
to Section 260.7, which states:
§ 260.7. Provisions of law may not be waived by
agreement
Nothing contained in this act shall in any way limit or
prohibit the payment of wages or compensation at more
frequent intervals or in greater amounts or in full when or
before due. No provision of this act shall in any way be
contravened or set aside by a private agreement.
43 P.S. § 260.7. As this Court has explained:
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The Pennsylvania Supreme Court recently articulated the
purpose of the WPCL as follows:
Pennsylvania enacted the WPCL to provide a vehicle
for employees to enforce payment of their wages
and compensation held by their employers. The
underlying purpose of the WPCL is to remove some
of the obstacles employees face in litigation by
providing them with a statutory remedy when an
employer breaches its contractual obligation to pay
wages. The WPCL does not create an employee’s
substantive right to compensation; rather, it only
establishes an employee’s right to enforce payment
of wages and compensation to which an employee is
otherwise entitled by the terms of an agreement.
The WPCL defines “employer” as “every person, firm,
partnership, association, corporation, receiver or other
officer of a court of this Commonwealth and any agent or
officer of any of the above-mentioned classes employing
any person in this Commonwealth.” 43 P.S. § 260.2a. To
hold an “agent or officer” personally liable for unpaid
wages, evidence of an active role in decision making is
required.
Hirsch v. EPL Technologies, Inc., 910 A.2d 84, 88 (Pa.Super. 2006),
appeal denied, 591 Pa. 727, 920 A.2d 833 (2007) (some internal citations
omitted).
The Legislature had some purpose for including an agent
or officer of a corporation employing persons in the
Commonwealth within the definition of employer, and the
only apparent purpose was to subject these persons to
liability in the event that a corporation or similar entity
failed to make wage payments. Its reason for doing so is
obvious. Decisions dealing with personnel matters and the
expenditure of corporate funds are made by corporate
officers and it is far more likely that the limited funds of an
insolvent corporation will be used to pay wages and that a
work force will be reduced while the corporation is still
capable of meeting its obligations to its employees if
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personal liability is imposed on the persons who make
these decisions.
Mohney v. McClure, 568 A.2d 682, 685 (Pa.Super. 1990), aff’d, 529 Pa.
430, 604 A.2d 1021 (1992) (quoting Laborers Combined Funds of
Western Pennsylvania v. Matei, 518 A.2d 1296, 1300 (Pa.Super. 1986))
(explaining there is no basis for liability under WPCL absent evidence of
active policy-making function of defendant). “Wages” under the WPCL
includes contractually-agreed-upon separation or severance pay. See
generally 43 P.S. § 260.2a. See also McLaughlin v. Gastrointestinal
Specialists, Inc., 696 A.2d 173, 175-76 (Pa.Super. 1997), aff’d, 561 Pa.
307, 750 A.2d 283 (2000) (stating: “Under the WPCL, the term ‘wages’
includes fringe benefits or wage supplements such as separation pay to be
paid pursuant to an agreement to the employee”).
Neither the WPCL nor the Statutory Construction Act defines the term
“court.” See 43 P.S. § 260.2a; 1 Pa.C.S.A. § 1991. We have found only
one Pennsylvania appellate court decision addressing the use of the term
“court” in a similar statutory context. See Conner v. DaimlerChrysler
Corp., 820 A.2d 1266 (Pa.Super. 2003) (stating use of term “court” in
Magnuson-Moss Warranty Act and in Unfair Trade Practices and Consumer
Protection Law includes compulsory arbitration boards because arbitrators
routinely decide questions of law, fact, damages and enhancement of
damages). Additionally, several decisions from our Common Pleas courts
and the federal courts have addressed and concluded that WPCL claims are
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arbitrable, notwithstanding the use of the term “court” in the statute. See
Weiner v. Pritzker, 2001 WL 1807929 (Pa.Com.Pl. (Philadelphia Cty.)
December 11, 2001) (sustaining preliminary objections and ordering
plaintiff’s WPCL claims to arbitration, where parties entered into valid
arbitration agreement; WPCL “does not unambiguously guarantee an
absolute right to pursue a wage claim in a court of law”; WPCL provision
forbidding waiver of claim by private agreement did not preclude application
of parties’ arbitration agreement or render arbitration agreement invalid, use
of phrase, “actions may be maintained in any court of competent
jurisdiction,” does not mandate judicial forum for resolution of WPCL claims;
language relied on is permissive, not imperative). See also Terrick v. PNC
Bank, 55 Pa. D. & C.4th 403 (Pa.Com.Pl. (Allegheny Cty.) 2001) (holding
board of arbitrators could consider claim for counsel fees, despite WPCL
provision providing for “court” to award counsel fees to prevailing party);
Tripp v. Renaissance Advantage Charter School, 2003 WL 22519433
(E.D.Pa. October 8, 2003) (rejecting as inaccurate and self-serving plaintiff’s
argument that her WPCL claims are not subject to arbitration clause in her
employment agreement because her WPCL claims do not arise from that
contract; holding WPCL depends on existence of contract; WPCL creates no
“substantive right to compensation; rather, it only establishes an employee’s
right to enforce payment of wages and compensation to which an employee
is otherwise entitled by the terms of an agreement”; observing WPCL
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language providing that cause of action may be maintained in any “court of
competent jurisdiction” is not dispositive in determining arbitrability of
statutory cause of action; party opposing arbitration showed no reason why
her WPCL claims were not subject to arbitration clause in her employment
agreement).
Instantly, the parties do not dispute that the employment agreement
contained a fairly broad arbitration provision covering “any disputes
regarding the interpretation or application” of the agreement. (See
Physician Employment Agreement at 10; R.R. at 20a.) Regarding the breach
of contract count in Appellee’s complaint, Appellee alleged, “Hospital
breached the Employment Agreement when it failed to pay him the
Severance Payment due and owing under the terms of the Employment
Agreement.” (See Appellee’s Complaint in Civil Action at 5; R.R. at 7a.)
Here, the Hospital’s alleged breach arose from the parties’ disagreement
over the meaning and application of Paragraph 6: Term and Termination in
the employment agreement. The breach of contract claim necessarily
concerns the “interpretation and application” of the employment agreement;
thus, we can say without doubt that the parties intended to arbitrate this
particular controversy.3 Under these circumstances, Appellee’s breach of
____________________________________________
3
Even if this contract claim were the only claim subject to arbitration, which
it is not, the court should have stayed Appellee’s court action pending
arbitration of his contract claim against Hospital. See Central Contracting
(Footnote Continued Next Page)
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contract claim is subject to the arbitration clause contained in the
employment agreement. See Callan, supra.
With respect to Appellee’s WPCL claim contained in Count II of his civil
complaint, the trial court stated the following, without elaboration:
While not argued by the parties, I note, at Section 260.7,
that the provisions of the [WPCL] cannot be set aside or
contravened by a private agreement.
In essence I [overruled] the Preliminary Objections
because the dispute is broader than the hospital corporate
entity and [Appellee] did not agree to have an Arbitrator
hear his [WPCL] claim. Further, the chairman and
individual Board Members have not agreed to Arbitration.
_______________________
(Footnote Continued)
Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965) (stating:
“The modern and correct rule is that, while private parties may not by
contract prevent a court from asserting its jurisdiction or change the rules of
venue, nevertheless, a court in which venue is proper and which has
jurisdiction should decline to proceed with the cause when the parties have
freely agreed that litigation shall be conducted in another forum and where
such agreement is not unreasonable at the time of litigation. Such an
agreement is unreasonable only where its enforcement would, under all
circumstances existing at the time of litigation, seriously impair plaintiff's
ability to pursue his cause of action. Mere inconvenience or additional
expense is not the test of unreasonableness since it may be assumed that
the plaintiff received under the contract consideration for these things. If
the agreed upon forum is available to plaintiff and said forum can do
substantial justice to the cause of action then plaintiff should be bound by
his agreement. Moreover, the party seeking to obviate the agreement has
the burden of proving its unreasonableness”); Sew Clean Drycleaners and
Launderers, Inc. v. Dress for Success Cleaners, Inc., 903 A.2d 1254,
(Pa.Super. 2006) (reiterating court should have stayed court action pending
outcome of arbitration, based on legislative policy in statute to avoid
duplicative litigation with possibility of irreconcilable results in every instance
where separate action involves issue subject to arbitration); 9 U.S.C.A. § 3
(addressing stay of court proceedings when issue in case is referable to
arbitration).
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Moreover, there is no Appellate authority cited to me to
support [Hospital].
(See Trial Court Opinion at 3-4.) We respectfully disagree with the trial
court’s decision. Appellee’s WPCL claim arose out of the alleged breach of
the employment contract, it is wholly dependent on the contract, and
Appellee cannot make out his WPCL claim without reference to the
employment contract. The court’s analysis, however, treated Appellee’s
WPCL claim as one falling outside the employment agreement, even though
the WPCL claim is temporally and factually identical to Appellee’s contract
claim. In doing so, the court subordinated the shared liberal policy favoring
arbitration in prevailing federal and state law.
The trial court’s reliance on the statutory use of the word “court” to
preclude arbitration of Appellee’s WPCL claim is equally flawed. Section
260.9a(b) of the WPCL says actions “may be maintained in any court of
competent jurisdiction”; this language is permissive, not mandatory.
Nothing in the WPCL gives Appellee an absolute right to sue in a judicial
forum or entitles him to exclusive judicial oversight. In reality, Appellee’s
effort to enforce the employment agreement through the WPCL involves
issues which arbitrators are routinely called upon to decide, such as
questions of law or fact, damages, statutory enhancement of damages,
reasonable attorney’s fees and costs. See Connor, supra. The arbitration
clause already provides that Hospital “shall fully reimburse any reasonable
attorney’s fees and costs (not including damage awards and settlements)
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incurred by Employee in the event of a dispute between the Hospital and
Employee regarding the enforcement of any terms or conditions of this
Agreement.” (See Physician Employment Agreement at ¶13, page 10; R.R.
at 20a.) Therefore, we reject Appellee’s complaint regarding the costs of
arbitration as prohibitive to him.
Likewise, we reject Appellee’s contention that the arbitration clause
contravenes or sets aside his rights under the WPCL. As the party opposing
arbitration, Appellee failed to show any legislative intent for the WPCL to
override the FAA. Absent some type of state-law defense that would
invalidate the arbitration clause itself, we see no basis under Pennsylvania
law to disfavor an agreement to arbitrate a WPCL claim. See Salley,
supra. For us to interpret the WPCL as categorically anti-arbitration
regarding wage claims would be in conflict with the United States Supreme
Court decisions in Marmet Health Care Center, Inc., supra and Perry,
supra. Appellee’s WPCL claim for “wages” in the form of severance pay
arose directly out of the parties’ employment agreement; so, the
employment agreement is the source of Appellee’s rights asserted and
benefits claimed. Because the arbitration clause specified that any disputes
regarding the interpretation and application of the employment agreement
shall be submitted to arbitration, we hold Appellee’s WPCL claim falls within
the scope of the arbitration provision. See Callan, supra.
Additionally, we reject the notion that the chairman and individual
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Board members have not agreed to arbitration. To the contrary, the
employment agreement was signed by former Hospital Board Chair, Edward
A. Nicholson, Ph.D., on behalf of Hospital. Moreover, Appellee’s complaint
essentially identifies the Board members as agents of Hospital. (See
Complaint at 8; R.R. at 10a.) (stating: “The above-named individual
defendants are board members and officers of Hospital and individually and
collectively exercise policy-making functions and/or have an active role in
Hospital’s decision-making process regarding payment of wages, including
the decision not to pay [Appellee] the Severance Pay pursuant to the terms
of the Employment Agreement”). Given the “obvious and close nexus”
between Hospital and its Board members, as pled in Appellee’s complaint,
we conclude the Board members can enforce the arbitration clause, even as
non-signatories to the employment agreement. See Arthur Andersen LLP,
et al., supra; Grand Wireless, Inc., supra; Arnold, supra; Pritzker,
supra. Thus, the court also erred in failing to compel arbitration for
Appellee’s WPCL claim.4
____________________________________________
4
“Pursuant to the doctrine of lis pendens, dismissal of a later cause of action
may be appropriate when the same parties are involved, the same rights are
asserted, and identical relief is sought in each action.” PNC Bank, Nat.
Ass’n v. Bluestream Technology, Inc., 14 A.3d 831, 835 (Pa.Super.
2010). Here, Hospital’s arbitration complaint and Appellee’s civil action both
seek a determination regarding Appellee’s right to severance payments
under the same employment agreement. Hospital and Appellee are parties
to both pending actions. Because the Board members are in privity with
Hospital, they can also be considered the same party for purposes of lis
(Footnote Continued Next Page)
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Based upon the foregoing, and for purposes of deciding whether the
arbitration provision is valid and encompasses the disputes at issue, we hold
the employment agreement contains a binding arbitration provision that
comprehends both Appellee’s specific breach of contract and his identical
WPCL claim; the Board members, as agents of Hospital, can enforce the
arbitration clause in the employment agreement with respect to Appellee’s
demands; and Appellee’s statutory WPCL claim is also subject to the
arbitration clause in the employment agreement. Thus, the court erred in
overruling Hospital’s and the Board’s preliminary objections and refusing to
send the entire controversy to arbitration. For these reasons, we reverse
and remand for referral of all of Appellee’s claims to the pending arbitration.
Order reversed; case remanded with instructions. Jurisdiction is
relinquished.
_______________________
(Footnote Continued)
pendens. See Hillgartner v. Port Authority of Allegheny County, 936
A.2d 131 (Pa.Cmwlth. 2007) (explaining privity, for purposes of determining
whether two actions involve same parties, is broadly defined as mutual or
successive relationships to same right of property, or such identification of
interest of one person with another as to represent same legal right;
typically, same loss, same measure of damages, and same or nearly
identical issues of fact and law are involved). Additionally, Hospital’s
arbitration complaint and Appellee’s court action both concern the
interpretation and application of Paragraph 6 of the employment agreement.
Thus, the court could have dismissed Appellee’s court action pursuant to the
doctrine of lis pendens.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2015
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