Provenzano, D. v. Ohio Valley General Hosp.

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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