J-A31041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KELSI WEIDNER IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MCCANN EDUCATION CENTERS, INC. 

AND DELTA CAREER EDUCATION 

CORPORATION

Appellants No. 529 MDA 2014

Appeal from the Order Entered March 12, 2014

In the Court of Common Pleas of Cumberland County

Civil Division at No: 13-3681

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 06, 2015

Appellants, McCann Education Centers, Inc. (“McCann”) and Delta 

Career Education Corporation (“Delta” and, collectively with McCann, 

“Appellants”) appeal from the trial court’s March 12, 2014 order denying 

their preliminary objection in the form of a petition to compel arbitration.1 

After careful review, we reverse and remand. 

Appellee Kelsi Weidner was training to become a laboratory technician 

at McCann’s campus in Carlisle, Pennsylvania, pursuant to a written 

enrollment agreement (the “Enrollment Agreement”) between Appellee and 

____________________________________________

1

 See Pa.R.A.P. 1028(a)(6). The trial court’s order is final and appealable 

pursuant to Pa.R.A.P. 311(a)(8). Midomo Co., Inc. v. Presbyterian 

Housing Co., 739 A.2d 180, 83-84 (Pa. Super. 1999). 
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McCann.2 Appellee alleges representatives of McCann advised her she would 

be eligible to sit for a certification examination upon completion of her 

training. Appellee alleges she subsequently learned McCann’s program was 

not nationally accredited and that she would be ineligible to sit for the 

certification exam. As a result, Appellee commenced this class action suit 

against Appellants alleging causes of action for breach of contract, violation 

of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law 

(“UTPCPL”), 73 P.S. § 201-1, et seq., and violations of the federal Racketeer 

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.A. § 1962(C), 

and (D). Appellants filed preliminary objections3and a petition to compel 

arbitration, citing an arbitration clause in the Enrollment Agreement. The 

trial court declined to compel arbitration, finding the parties did not enter a 

valid agreement to arbitrate. This timely appeal followed. 

The sole issue before us is whether the trial court erred in finding no 

valid agreement to arbitrate exists. “Public policy favors arbitration to settle 

disputes, quickly, fairly, and economically.” Smay v. E.R. Stuebner, Inc., 

864 A.2d 1266, 1272 (Pa. Super. 2004). Our review consists of a two-part 

____________________________________________

2

 The complaint alleges Delta owns and operates McCann. Delta and 

McCann have filed a joint brief. 

3

 Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure permits a 

preliminary objection on grounds of an “agreement for alternative dispute 

resolution.” Pa.R.C.P. 1028(a)(6). 
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test, pursuant to which we analyze (1) whether a valid arbitration 

agreement exists and (2) whether the claim falls within the scope of the 

arbitration agreement. Id. “Whether an agreement to arbitrate disputes 

exists is a question of law.” Neuhard v. Travelers Ins. Co., 831 A.2d 602, 

604 (Pa. Super. 2003). “When we review questions of law, our standard of 

review is limited to determining whether the trial court committed an error 

of law.” Id. Our scope of review is plenary. McNulty v. H&R Block, Inc., 

843 A.2d 1267, 1271 (Pa. Super. 2004), appeal denied, 853 A.2d 362 (Pa. 

2004), cert. denied, 543 U.S. 1021 (2004). 

Given the trial court’s disposition of this case, we will confine our 

analysis to whether a valid agreement exists. To answer that question, “we 

must examine whether both parties have manifested an intent to be bound 

by the terms of the agreement, whether the terms are sufficiently definite, 

and whether consideration existed.” Johnston the Florist, Inc. v. Tedco 

Constr. Corp., 657 A.2d 511, 516 (Pa. Super. 1995). “If all three of these 

elements exist, the agreement shall be considered valid and binding.” Id. 

First, we consider Appellants’ argument that the trial court applied the 

wrong legal standard in answering this question. Appellants’ Brief at 10-11. 

Specifically, Appellants argue the trial court failed to account for the public 

policy preference, as stated in Smay and in cases construing the Federal 

Arbitration Act (“FAA”), 9 U.S.C.A. § 1, et seq., that the law favors 

arbitration. Appellants also argue the FAA preempts state law holding that 
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arbitration agreements are to be strictly construed. See Midomo, 739 A.2d 

at 190 (noting agreements to arbitrate must be clear, unmistakable, and 

strictly construed). 

The FAA applies where the contract at issue involves interstate 

commerce. 9 U.S.C.A. § 2; McNulty, 843 A.2d at 1271. Appellants note 

that they are regulated by the federal Department of Education and Title IV 

of the U.S. Higher Education Act, 20 U.S.C.A. § 1701, et. seq. Further, the 

complaint alleges that Appellant Delta Career Education Corporation is a 

Virginia Corporation that owns McCann Education Centers, Inc. Amended 

Complaint, 9/11/13, at ¶¶ 3-4. Preliminary Objections, 10/1/13, at 

Affidavit, ¶ 4. Appellee took no position on the applicability of the FAA. The 

trial court acknowledged the FAA, as well as its policy of favoring arbitration, 

but the court also noted the FAA does not displace state law principles of 

contract formation. Trial Court Opinion, 3/12/14, at 5-6. The trial court 

went on to analyze and dispose of this case in accord with state law. The 

trial court did not specifically find the FAA to be applicable here. 

Applicability of the FAA is a question of fact. Duquesne Light Co. v. 

New Warwick Mining Co., 660 A.2d 1341, 1333 (Pa. Super. 1995). 

“Where the fact finder [...] fails to to indicate whether it is applying federal or 

state law to the arbitration issue, an appellate court is prohibited from 

determining the applicability of federal law.” Id. at 1333-34. The 

Duquesne Light Court elected not to remand for a finding on the issue, as 
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the result in that case was the same under federal or state law. Id. at 1334. 

We conclude the same is true in this case, and we therefore will not remand. 

The trial court was correct insofar as it held that federal courts look to 

state law to discern whether the parties formed a valid agreement. Blair v. 

Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002). Ultimately, we 

rely on state law principles of contract formation to conclude that these 

parties manifested their intent to be bound by the arbitration clause as 

evinced by the plain language of the Enrollment Agreement. Given our 

reversal of the trial court on state law grounds, we need not address 

whether the FAA’s policy in favor of arbitration, if applicable, also would 

compel reversal here. Likewise, the principles of strict construction, and the 

need for a clear and unmistakable agreement, as expressed in Midomo, do 

not alter the result here. The language of the Enrollment Agreement, as 

analyzed below, is sufficiently clear to pass muster under Midomo. We 

therefore need not decide whether the FAA policy favoring arbitration 

preempts the strict construction principles described in Midomo to the 

extent they can be relied on to void an otherwise valid arbitration 

agreement. 

We now turn our attention to the record. As noted above, we have 

before us Appellee’s amended complaint, Appellant’s preliminary objections, 
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and Appellee’s response to the preliminary objections.4 The parties did not 

conduct discovery and the trial court did not conduct an evidentiary hearing. 

As the existence of an agreement to arbitrate is not a matter apparent from 

the face of the record, Appellants properly endorsed their preliminary 

objections with a notice to plead. Pa.R.C.P. 1028(a)(6), note. Appellants 

attached to their preliminary objections a copy of the Enrollment Agreement, 

an affidavit, and a verification. Appellee filed a response to Appellants’ 

preliminary objections, but her response is unverified.5 

Appellants’ preliminary objections allege the existence of the 

arbitration clause. They quote the clause and attach a full copy of the fourpage Enrollment Agreement. Preliminary Objections, 10/1/13, at ¶ 5, 

Exhibit A. The attached affidavit alleges that “[b]y signing the Enrollment 

Agreement, [Appellee] acknowledged that she had read and agreed to the 

arbitration provision. Id. at Affidavit, ¶ 6. The affiant apparently based that 

assertion on language contained in the Enrollment Agreement immediately 

above the signature line: “I certify that all information provided about me is 

____________________________________________

4

 See Pa.R.C.P. 1017(a) (allowable pleadings include, among other things, a 

complaint, preliminary objections, and a response to preliminary objections). 

5

 Pa.R.C.P. 1024(a) provides: “Every pleading containing an averment of 

fact not appearing of record in the action or containing a denial of fact shall 

state that the averment or denial is true upon the signer’s personal 

knowledge [....]” Pa.R.C.P. 1024(a). Despite the lack of verification, 

Appellants did not move to strike any portion of Appellee’s response. 
J-A31041-14

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accurate and that I have read all pages of this AGREEMENT and will abide by 

its provisions.” Enrollment Agreement, at 2. 

Appellee’s unverified response repeatedly asserts the Enrollment 

Agreement speaks for itself and that the parties did not enter a valid 

agreement to arbitrate. In Paragraph 6, Appellee asserts she “never agreed 

to submit the issue of accreditation of certain programs to arbitration 

because she was misled into believing that the accreditation of the programs 

was not an issue that would need to be arbitrated.” Response to Preliminary 

Objections, 10/21/13, at ¶ 6. This clearly is an averment of fact that should 

have been accompanied by a signed verification. Nonetheless, it is relevant 

only to the scope of the arbitration agreement. In this appeal, we are 

concerned only with whether an arbitration agreement existed. Thus, the 

lack of verification is of no moment. Appellee also alleges “there is no 

evidence to show that [Appellee] was ever presented the page containing 

the arbitration provision much less that she agreed to be bound by that 

provision.” Id. 

In summary, the preliminary objections and response thereto dispute 

whether the terms of the Enrollment Agreement evince the parties’ 

execution of a valid arbitration agreement. They also dispute whether the 

current litigation falls within the scope of that agreement. The trial court 

answered the first question in the negative and did not address the second. 

For the following reasons, we disagree. 
J-A31041-14

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First, we observe several pertinent features of the Enrollment 

agreement. Page one introduces the parties, addresses fees, financial aid 

and other matters. Enrollment Agreement, at 1. Appellee initialed two 

paragraphs, one addressing financial aid and another addressing the times 

of day during which she was required to be available for classes. Id. 

Likewise, on page two, Appellee initialed three paragraphs. The first 

addresses McCann’s right to alter the class schedule and Appellee’s right to a 

refund. Id. at 2. The second addresses the potential need for Appellee to 

take prerequisite courses. Id. The third addresses job placement 

assistance, and it appears in bold print and all capital letters. Id. The upper 

right hand corner of page two indicates that it is “Page 2 of 4.” Id. Appellee 

and two school officials signed the bottom of page two. Id. As noted 

above, the paragraph above the signature lines indicates Appellee has read 

all pages of the agreement and will abide by its terms. Id. Immediately 

underneath the third signature line is the heading “Refund Policies.” That 

heading appears in bold, all capitalized typeface similar to the placement 

assistance paragraph. Id. 

The substance of the refund policy, as well as the policy for return of 

unearned Title IV funds, carries over onto page three. Id. at 3. The upper 

right hand corner of page three indicates that it is “Page 3 of 4.” Id. The 

provisions for return of unused Title IV funds continues onto page four. Id.
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at 4. Underneath that section is the arbitration clause. The arbitration 

clause reads: 

ARBITRATION

You (the student) and McCann School of Business and 

Technology agree that any dispute arising out of our [sic] 

relating to this enrollment agreement, your enrollment or your 

attendance at McCann School of Business and Technology, 

whether such dispute arises during or after your attendance and 

whether the dispute is based on contract, tort, statute, or 

otherwise, shall be resolved by binding arbitration in the city and 

county in which the school is located within the state of 

Pennsylvania. You (the student) and McCann School of Business 

and Technology each further agrees that this arbitration 

provision provides each party with this exclusive remedy of 

redress of any grievance or resolution of any dispute arising out 

of this Agreement, AND EACH PARTY EXPRESSLY WAIVES ANY 

RIGHT, INCLUDING WITHOUT LIMITATION THE RIGHT TO TRIAL 

BY JURY, IT MIGHT HAVE TO SEEK REDRESS IN ANY FEDERAL, 

STATE OR LOCAL COURT OR OTHER FORUM, except for an action 

to enforce in court an arbitration award rendered to this 

Agreement. 

Id. at 4 (capitalization and bold in original). The capitalized portion in the 

text of this paragraph appears to be in a font slightly larger than the bolded 

arbitration heading. The upper right hand corner of page four indicates that 

it is “Page 4 of 4.” Id. 

Having reviewed the four pages of the Enrollment Agreement, we 

consider the first prong of Johnston the Florist–whether the Enrollment 

Agreement evinces Appellee’s intent to be bound by all of its terms. 

Johnston the Florist, 657 A.2d at 516. Several features of the Enrollment 

Agreement clearly answer this question in the affirmative. Page two, which 

Appellee signed once and initialed in three places, indicates that it is page 
J-A31041-14

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two of four. Immediately above the signature line, albeit in very fine print, 

the Enrollment agreement indicates that the signee has read all pages of the 

agreement. Immediately underneath the signature line is the heading of a 

new section that continues on page three. Thus, a careful reading of page 

two would have informed Appellee that, despite the placement of the 

signature line, it is not the last page of the Enrollment Agreement. 

Failure to read a contract does not merit an avoidance or nullification 

of the contract absent proof of fraud. Standard Venetian Blind Co. v. 

Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. Super. 1983); see also, 

Germantown Sav. Bank v. Talacki, 657 A.2d 1285, 1289-90 (Pa. Super. 

1995) (“[W]here, as here, the debtor has not alleged fraud, and has 

produced no evidence to show a lack of capacity to understand the 

document signed, or that he or she had asked for an explanation of the 

contract language, the debtor must be held to the contract’s terms.”). 

Appellee’s signature on page two of the Enrollment Agreement sufficiently 

indicates her intent to be bound by all four pages. Her signature appears 

underneath an acknowledgement that she read and agreed to be bound by 

all terms of the agreement, and page two of the Enrollment Agreement 

plainly indicates it is page two of four. Thus, Appellant’s contention there is 

no evidence she ever was presented with page four of the Agreement is 

belied by her express acknowledgement that she read all pages of the 

Agreement and would abide by all its provisions. Appellant does not raise a 
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claim of fraud sufficient to create an issue that the arbitration provision 

should be stricken from the Agreement.6

The second and third prongs of Johnston the Florist are not 

substantially in dispute. Appellee offers no argument that terms of the 

arbitration clause are insufficiently definite, or that consideration was 

lacking. We therefore conclude the parties entered a valid agreement to 

arbitrate.7 

Appellee would have us reach a contrary result based on the purported 

unconscionability of the arbitration agreement. Appellee argues that the 

Agreement is procedurally unconscionable given the gross disparity between 

the parties bargaining power, and substantively unconscionable because the 

arbitration provision unreasonably favors Appellant by denying plaintiffs like 

Appellee access to the courts and forcing them into arbitration. 

____________________________________________

6

 Appellee alleges only that McCann made misrepresentations about the 

accreditation of its course of study and Appellee’s ability to sit for a 

certification exam upon completion. Those allegations do not relate directly 

to the agreement to arbitrate, and therefore, they must await the review of 

an arbitrator. These allegations in any event, even if true (and we express 

no opinion), are not a sufficient basis to avoid the arbitration clause. “[A] 

general attack on a contract for fraud is to be decided under the applicable 

arbitration provision as a severable part of the contract and that only where 

the claim of fraud in the inducement goes specifically to the arbitration 

provision itself should it be adjudicated by the court rather than the 

arbitrator.” Setlock v. Pinebrook Pers. Care & Ret. Ctr., 56 A.3d 904, 

910 (Pa. Super. 2012), appeal denied, 74 A.3d 127 (Pa. 2013). 

7

 We therefore need not address Appellants’ argument that equitable 

estoppel precludes Appellee from challenging the validity of the arbitration 

clause. We note that the trial court did not address that issue. 
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Under Pennsylvania law, a contract or term is unconscionable and 

therefore avoidable, where there is lack of a meaningful choice in a 

challenged provision and the term unreasonably favors the party asserting 

it. Salley v. Option One Mortg. Corp., 925 A.2d 115, 119 (Pa. 2007). 

The lack of meaningful choice and unreasonableness have been termed 

procedural and substantive unconscionability, respectfully. Id. Contracts 

cannot be deemed procedurally unconscionable simply due to a disparity in 

bargaining power. Witmer v. Exxon Corp., 434 A.2d 1222, 1228 (Pa. 

1981). There must be some showing that the contract was formed though 

oppression and unfair surprise and not merely to disturb the allocation of 

risks due to superior bargaining position. Id. Substantive unconscionability 

refers to terms that are unreasonably favorable to one side and to which the 

disfavored party did not assent. Denlinger, Inc. v. Dendler, 608 A.2d 

1061, 1068 (Pa. Super. 1992). The burden of proof to demonstrate both 

elements of unconscionability is upon the party challenging an agreement, 

with the ultimate determination of unconscionability to be made by the 

courts. Salley, 925 A.2d at 119-20. 

Here, Appellee asserts that there was gross disparity in bargaining 

power between the parties and she had no choice but to accept the terms of

the Agreement. To support this assertion Appellee merely alleges that 

Appellant is a large corporation and she is a high-school graduate who 

possessed few choices regarding her education beyond schools like the 
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Appellant. Beyond these statements, Appellee has not attempted to further 

substantiate her procedural unconscionability claim by demonstrating for 

example, that she made any attempt to negotiate or change any terms of 

the Agreement, that she was told the terms were non-negotiable, that there 

were no other schools like Appellant to which she could have applied, or if 

there were other schools, that they too utilized the same form of contract 

with an arbitration clause. See Denlinger, 608 A.2d at 1068. In simple 

terms, Appellee failed to set forth sufficient averments in her answer to 

Appellee’s preliminary objections to sustain her burden of proof to claim 

procedural unconscionability. 

Nor can we agree with Appellee’s argument the Agreement is 

procedurally unconscionable due to it being poorly formatted and organized. 

Specifically, Appellee argues the trial court correctly found the agreement to 

be both procedurally and substantively unconscionable. Appellee’s Brief at 

17-23. Our review of the trial court’s opinion, however, reveals that the trial 

court made no such finding. Indeed, the court did not mention the term 

unconscionability, nor did it make a finding that the contract at issue is a 

contract of adhesion. See, e.g., Salley, supra (discussing the doctrine of 

unconscionability as applied to arbitration agreements). The trial court did 

not analyze any case law applying the unconscionability doctrine. To the 

contrary, the trial court only found that an agreement to arbitrate had not 

been agreed to between the parties, a conclusion we already disapproved. 
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Having found that Appellee did not establish procedural 

unconscionability, we need not address Appellee’s substantive 

unconscionability argument, since to succeed on her claim, Appellee must 

carry her burden to prove both procedural and substantive unconscionability. 

See Salley, supra at 925 A.2d 127-128 (fact finding on procedural 

unconscionability not necessary when arbitration agreement is not 

substantively unreasonable). Nonetheless, we note that Appellee does not 

per se challenge the terms of the arbitration provision, but instead only 

asserts that the provision operates to deprive her of access to the courts and 

to force her to arbitration. The same however, without more, could be said 

of every arbitration clause. This argument, however, does not answer the 

question as to whether or not the clause so unreasonably favors the 

Appellant as to be substantively unconscionable. Arbitration as a matter of 

public policy is favored in the law, Smay, supra, and the inclusion of an 

arbitration clause in an agreement does not by itself render the term 

substantively unconscionable. 

Based on all of the foregoing, we therefore reverse the trial court’s 

order and remand for further proceedings.8

____________________________________________

8

 The trial court did not address whether the parties’ dispute falls within the 

scope of the arbitration clause. We will not address that question in the first 

instance. 
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Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2015