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-

____________________________________________

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, 

____________________________________________

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) 
J-A11035-14

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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