J-S45002-22

2023 PA Super 153

JANE DOE

v.

THE CHEESECAKE FACTORY, THE 

CHEESECAKE FACTORY BAKERY, 

INC., THE CHEESECAKE FACTORY 

RESTAURANTS, INC., KING OF 

PRUSSIA MALL, ALLIED UNIVERSAL 

SECURITY SERVICES, SIMON 

PROPERTY GROUP, INC., AND 

FACUNDO MARTINEZ

APPEAL OF: THE CHEESECAKE 

FACTORY, THE CHEESECAKE 

FACTORY BAKERY, INC., THE 

CHEESECAKE FACTORY 

RESTAURANTS, INC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 254 EDA 2022

Appeal from the Order Entered December 17, 2021

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 190605783

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

OPINION BY OLSON, J.: FILED AUGUST 9, 2023

Appellants, The Cheesecake Factory, The Cheesecake Factory Bakery, 

Inc., The Cheesecake Factory Restaurants, Inc. (collectively referred to as 

“Cheesecake Factory” or “Appellants”) appeal from the order entered on 

December 17, 2021, denying Appellants’ motion to vacate an arbitration 

award and granting a petition to confirm an arbitration award filed by Plaintiff, 

Jane Doe (“Plaintiff”). We affirm.
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The trial court briefly set forth the facts and procedural history of this 

case as follows:

On June 11, 2019, Plaintiff commenced [a] negligence action 

against [Cheesecake Factory,] King of Prussia Mall, Simon 

Property Group, Inc., and Allied Universal Security Services 

(“Allied”).1 On August 12, 2019, Allied joined Facundo Martinez 

as an additional defendant.

On October 1, 2019, [Cheesecake Factory] filed a motion to 

compel arbitration under the Arbitration Act (“FAA”), 9 USC § 10 

(FAA), and to stay the [judicial] action pending arbitration. On 

October 21, 2019, Plaintiff filed an opposition to the motion, 

[claiming] that Plaintiff had not agreed to arbitrate the at-issue 

claims and [further claiming] that the claims at issue were 

excluded from the arbitration agreement. A [] hearing on the 

motion was scheduled before the Hon[orable] Daniel Anders for 

December 4, 2019 and subsequently rescheduled for January 29, 

2020. Following the hearing, the parties submitted supplemental 

briefs and on February 6, 2020, Judge Anders granted 

[Cheesecake Factory’s] motion, ordered the matter to arbitration, 

and stayed the litigation regarding [] Cheesecake Factory only. 

The litigation continued with regard to the other [d]efendants[,] 

King of Prussia Mall, Simon Property Group, Allied, and Facundo 

Martinez. 

[O]n or about November 2020, Plaintiff and [] Cheesecake Factory 

submitted the matter to arbitration [] before retired judge[, the 

Honorable] William F. Furber acting as the arbitrator. Arbitrator 

Furber issued a “final award” on November 30, 2020 (and served 

to the parties on December 21, 2020), holding that there was a 

valid agreement to arbitrate, but that the dispute at issue did not 

fall within the scope of the arbitration agreement. In reaching his 

decision, Arbitrator Furber cited the “delegation clause” of the 

arbitration agreement, which specifically gave [] Arbitrator 

[Furber] the “exclusive authority” to decide the applicability and 

____________________________________________

1 Plaintiff’s complaint alleges claims of vicarious liability, negligence, 

negligence per se, negligent misrepresentation and negligent failure to rescue. 

Plaintiff claims the defendants failed to take any actions to protect her from 

sexual harassment and ultimately a sexual assault committed by a co-worker, 

Facundo Martinez.
J-S45002-22

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enforceability of the arbitration agreement.[2] Arbitrator Furber 

then relinquished jurisdiction to the [trial court].

On January 11, 2021, Plaintiff filed a petition to confirm the 

arbitration award and, on January 21, 2021, [] Cheesecake 

Factory filed a motion to vacate the arbitration award. [...]By 

agreement of the parties, [the trial] court held the motions in 

abeyance, lifted the stay as to Cheesecake Factory during the 

pendency of at issue motions, and ordered that all parties 

complete discovery. On November 30, 2021, [the trial] court 

heard argument on the motions and the parties submitted 

supplemental briefs on December 7, 2021. On December [17], 

2021, [the trial] court [entered an order] grant[ing] Plaintiff’s 

motion to confirm the arbitration award and den[ying] 

Cheesecake Factory’s motion to vacate the arbitration award.

____________________________________________

2

 More specifically, the trial court noted:

The arbitration agreement at issue is contained within an 

employee manual and contract for employment signed by [] 

Plaintiff on or about November 19, 2015. In the contract, the 

parties agreed to arbitrate employment disputes under the [FAA]. 

As part of the arbitration agreement, the contract contained a 

delegation clause, relied upon by Arbitrator Furber, which provides 

that the chosen arbitrator:

shall have the exclusive authority to resolve any dispute 

relating to the interpretation, applicability, 

enforceability, or formation of this Agreement, including, 

but not limited to, any claim that all or any part of this 

Agreement is void or voidable.

In relying on this clause, Arbitrator Furber determined that while 

a valid contract existed, the interpretation of the at[-]issue 

arbitration agreement did not support a finding that the claim was 

arbitrable. Arbitrator Furber concluded that “under no 

circumstance can sexual assault be a foreseeable consequence of 

employment as a restaurant server” and that the “assault was 

solely the result of the co-worker’s independent criminal conduct 

and was in no way directly or indirectly related to Plaintiff’s 

employment.”

Trial Court Opinion, 9/16/2022, at 3 (record citations and some unnecessary 

capitalization omitted; emphasis in original).
J-S45002-22

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Trial Court Opinion, 9/16/2022, at 1-3 (unnecessary capitalization omitted). 

This timely appeal resulted.3

Appellants raise the following issue for our review:

[...W]hether the trial court had the authority to vacate an 

arbitrator’s award where the arbitrator abused his power and 

issued a final award that ignored the plain language of the 

arbitration agreement between the parties and the facts 

established in the pleadings[?]

Appellants’ Brief at 5. 

Appellants argue that the arbitrator abused his discretion with respect 

to the threshold issue of the scope of the arbitration agreement between 

Plaintiff and Appellants. Appellants emphasize that the arbitrator ignored the 

broad plain language of the arbitration agreement which provided that 

Appellants and Plaintiff “agree to arbitrate before a neutral arbitrator any and 

all disputes or claims ... that arise out of or relate to ... recruitment, 

employment, or separation from employment with the company.” Id. at 8 

(emphasis in original, record citation omitted). Moreover, Appellants contend 

that the arbitration agreement covered claims, involving any employee, for

causes including infliction of emotional distress, negligence, or any other tortlike cause of action relating to or arising from the employment relationship. 

____________________________________________

3 Upon our review of the certified record, while the order appealed from was 

dated December 9, 2021, the prothonotary did not enter the order on the 

docket or give notice under Pa.R.Civ.P. 236, until December 17, 2021. See 

Pa.R.A.P. 301(b)(1) (order does not become appealable until entry on 

appropriate trial court docket). Thus, Appellant’s notice of appeal filed on 

January 12, 2022 was timely. The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on September 16, 2022.
J-S45002-22

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Id. (record citation omitted). Further, Appellants maintain that the arbitrator 

ignored the verified allegations in Plaintiff’s complaint wherein she alleged that 

the sexual assault occurred during the course and scope of her employment. 

Id. at 17-18. Appellants argue that the plain language of the arbitration 

agreement controls the resolution of this appeal, that the arbitrator’s actions 

amounted to an amendment or alteration of the agreement, and, therefore, 

that the arbitrator acted without authority. Id. at 19-25. Appellants assert 

that “it [was] patently incorrect” for “the [a]rbitrator, without any evidence, 

but apparently based purely on his own supposition, [to] rule[] that it [was] 

‘inconceivable’ that parties intended that [Plaintiff’s] sexual assault-based 

claim would be subject to the arbitration provision.” Id. at 12.

We recognize the following legal precepts:

Where a party to a civil action seeks to compel arbitration the trial 

court must first determine if a valid agreement to arbitrate exists 

between the parties. If the trial court determines that such an 

agreement does exist, it must then determine if the dispute 

involved is within the scope of the arbitration provision. The scope 

of arbitration is determined by the intention of the parties as 

ascertained in accordance with the rules governing contracts 

generally. 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. The 

existence of an agreement and whether a dispute is within the 

scope of the agreement are questions of law and our review is 

plenary. 

Warwick Twp. Water & Sewer Auth. v. Boucher & James, Inc., 851 A.2d 

953, 955 (Pa. Super. 2004) (internal quotations and citations omitted).

This Court has previously determined:
J-S45002-22

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We review a trial court's denial of a motion to compel arbitration 

for an abuse of discretion and to determine whether the trial 

court's findings are supported by substantial evidence. In doing 

so, we employ a two-part test to determine whether the trial court 

should have compelled arbitration. The first determination is 

whether a valid agreement to arbitrate exists. The second 

determination is whether the dispute is within the scope of the 

agreement.

Whether a claim is within the scope of an arbitration provision is 

a matter of contract, and as with all questions of law, our review 

of the trial court's conclusion is plenary. The scope of arbitration 

is determined by the intention of the parties as ascertained in 

accordance with the rules governing contracts generally. These 

are questions of law and our review is plenary. 

Arbitration is a matter of contract, and parties to a contract cannot 

be compelled to arbitrate a given issue absent an agreement 

between them to arbitrate that issue. Even though it is now the 

policy of the law to favor settlement of disputes by arbitration and 

to promote the swift and orderly disposition of claims, arbitration 

agreements are to be strictly construed and such agreements 

should not be extended by implication.

Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa. Super. 2012) (citations omitted).

Furthermore, we have also recounted

unless some limitation on his/her authority is imposed by the 

parties, the arbitrator may decide all matters necessary to dispose 

of any disputed claims subject to arbitration since in the absence 

of such a restriction, the court may not impose one sua sponte. 

Were this not the case, contractual arbitration clauses would be of 

infinite length to accommodate any conceivable contingency. 

Accordingly, “all” does mean “all” unless otherwise agreed by the 

parties.

Theodore C. Wills Co. v. Sch. Dist. of Boyertown Area, 837 A.2d 1186, 

1189–1190 (Pa. Super. 2003). “[A]rbitrators' authority is restricted to the 

powers the parties have granted them and the trial court may examine 

whether the arbitrators exceeded the scope of their authority” as “determined 
J-S45002-22

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by the intention of the parties [] in accordance with the rules governing 

contracts generally.” Boulevard Assocs. v. Seltzer P'ship, 664 A.2d 983, 

987 (Pa. Super. 1995)(citation omitted).

Our Supreme Court has recognized:

In interpreting the language of a contract, [the reviewing court] 

attempt[s] to ascertain the intent of the parties and give it effect. 

When the words of an agreement are clear and unambiguous, the 

intent of the parties is to be ascertained from the language used 

in the agreement, which will be given its commonly accepted and 

plain meaning. Additionally, in determining the intent of the 

contracting parties, all provisions in the agreement will be 

construed together and each will be given effect. Thus, [the 

reviewing court should] not interpret one provision of a contract 

in a manner which results in another portion being annulled. 

LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647–648 (Pa. 

2009) (internal citations omitted).

Here, there is no dispute that the parties entered into a valid, mutual 

agreement to arbitrate claims on November 19, 2015. In determining whether 

Plaintiff’s claims were covered under the terms of the arbitration agreement,

the arbitrator examined, in pertinent part, the following “claims covered” 

provision:

Claims Covered by the Agreement

[Cheesecake Factory] and [Plaintiff] agree to arbitrate before a 

neutral arbitrator any and all disputes or claims between

[Cheesecake Factory] and [Plaintiff] that arise out of or relate to 

[] recruitment, employment or separation from employment with 

[Cheesecake Factory] (currently existing or which may arise in the 

future), including claims involving and/or against any current or 

former officer, director, shareholder, agent or employee of 

[Cheesecake Factory], and/or against any current or former 

[Cheesecake Factory] benefit plan sponsors, fiduciary or
J-S45002-22

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administrator, whether the disputes or claims arise under common 

law, in tort, in contract, or pursuant to a statute, regulation, or 

ordinance now in existence or which may in the future be enacted 

or recognized, including, but not limited to [...] claims for wrongful 

termination of employment, retaliation, violation of public policy, 

constructive discharge, infliction of emotional distress, 

misrepresentation, discrimination, negligence, interference with 

contract or prospective economic advantage, defamation, unfair 

business practices, and any other tort or tort-like causes of action 

relating to or arising from the employment relationship or the 

formation or termination thereof[.]

Arbitration Agreement, 11/19/2015, at 1-2.

The trial court, however, examined another provision of the arbitration 

agreement dealing with “resolution of disputes” that provides, in relevant 

part:

Resolution of Disputes

* * *

[Cheesecake Factory] and [Plaintiff] understand and agree that 

any dispute as to the arbitrability of a particular issue or claim 

pursuant to this [a]greement is to be resolved in arbitration. The 

arbitrator shall have exclusive authority to resolve any 

dispute relating to the interpretation, applicability, 

enforceability or formation of this [a]greement including, 

but not limited to, any claim that all or any part of this 

[a]greement is void or voidable.

Id. at 4 (emphasis added).

In the order that denied Appellants’ motion to vacate the arbitration 

award and granted Plaintiff’s motion to confirm the award, the trial court 

initially determined:

While [the trial] court would find that Plaintiff’s claims did arise 

from and do relate to her employment, a mistake of law is not a 

basis to vacate [this a]rbitration [a]ward. The [c]ontract at issue 

specifically indicated that the [a]rbitrator [enjoyed exclusive] 

authority to determine whether the dispute at issue was subject 
J-S45002-22

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to arbitration or not. The [a]rbitrator interpreted the contract and, 

under the authority delegated to him, found that the dispute was 

not subject to arbitration. In making this finding, the arbitrator 

may have made a mistake of law, but did not exceed his authority.

Order of Court, 12/17/2021, at n.1 (emphasis in original).

In its subsequent opinion pursuant to Pa.R.A.P. 1925(a), the trial court 

additionally opined:

Cheesecake Factory argued that Arbitrator Furber exceeded his 

powers because he concluded that [Plaintiff’s] claims were beyond 

the scope of the [a]rbitration [a]greement and did not reach the 

decision on the merits of the claims asserted in this litigation. As 

such, [] Cheesecake Factory urged [the trial court] to vacate the 

[a]rbitration [a]ward. [The trial court] disagreed, having found 

that the delegation clause [(“resolution of disputes” provision)] of 

the [a]rbitration [a]greement is clear on its face and the 

[a]rbitrator did not act outside of the powers delegated to him in

that clause when he decided the threshold issue of arbitrability of 

the claims.

Trial Court Opinion, 9/16/2022, at 4 (citation omitted).

For the reasons that follow, we agree with the trial court’s assessment. 

Initially, we note that Cheesecake Factory fails to address the trial court’s 

reliance on the resolution of disputes provision of the arbitration agreement

in any way. Cheesecake Factory does not claim that the trial court erroneously 

relied upon that provision or that the language of the provision was ambiguous 

or somehow unclear.4 Instead, Cheesecake Factory again argues that the 

arbitrator misinterpreted the claims covered provision of the agreement. 

____________________________________________

4

 We note, however, that “[w]here the language of the contract is ambiguous, 

the provision is to be construed against the drafter.” State Farm Fire & Cas. 

Co. v. PECO, 54 A.3d 921, 928 (Pa. Super. 2012) (citation omitted). Here, 

Cheesecake Factory drafted the arbitration agreement. 
J-S45002-22

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However, as set forth above, the plain language of the arbitration agreement 

states that “any dispute as to the arbitrability of a particular issue or claim 

pursuant to this [a]greement is to be resolved in arbitration” and that “the 

arbitrator shall have exclusive authority to resolve any dispute relating to the 

interpretation, applicability, enforceability or formation of this [a]greement.” 

Arbitration Agreement, 11/19/2015, at 4. Thus, the arbitrator had the 

exclusive authority to determine the scope of the arbitration agreement and 

Cheesecake Factory does not challenge this determination. 

Contrary to Appellants’ contentions, the arbitrator examined the claims 

covered provision of the arbitration agreement and concluded that “under no 

circumstances can sexual assault be a foreseeable consequence of 

employment as a restaurant server” and that the “assault was solely the result 

of [the] co-worker’s independent criminal conduct and was in no way directly 

or indirectly related to [Plaintiff’s] employment.” Trial Court Opinion, 

9/16/2022, at 3, citing Arbitrator’s Decision, 11/30/2019, at 4. As such, the 

arbitrator examined the claims covered provision, applied it as required, and 

rendered a decision. Cheesecake Factory simply does not agree with that 

decision.

The resolution of disputes provision of the arbitration agreement, as set 

forth above, makes clear that the arbitrator has exclusive authority to resolve 

any dispute relating to arbitrability. Thus, the trial court lacked authority to 

examine the merits of the arbitrator’s decision concerning the claims covered 

provision. Put differently, the relevant provisions of the arbitration agreement 
J-S45002-22

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provisions were examined by the arbitrator and these provisions were given 

effect, as written. The claims covered provision was not rendered superfluous,

or annulled by, the resolution of disputes provision. Overall, the plain 

language of the agreement shows Cheesecake Factory and Plaintiff intended 

to grant the arbitrator the power to exclusively determine arbitrability. The 

arbitrator did just that and Cheesecake Factory’s mere disagreement does not 

merit relief. If Cheesecake Factory did not want arbitrability of claims to be 

exclusively determined by the arbitrator, it should not have included the 

resolution of disputes provision in the contract. Accordingly, for all of the 

foregoing reasons, we conclude that the trial court did not err in denying 

Cheesecake Factory’s motion to vacate the arbitration decision.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/09/2023