J-A24010-23

2024 PA Super 62

NANCY M. SCHWARTZ

v.

KELLY SERVICES, INC.

Appellant

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 755 EDA 2023

Appeal from the Order Entered March 17, 2023

In the Court of Common Pleas of Philadelphia County 

Civil Division at No: 220902653

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

OPINION BY STABILE, J.: FILED MARCH 28, 2024

This interlocutory appeal concerns the scope of an Arbitration 

Agreement between Appellant, Kelly Services, Inc. (Kelly), and Nancy M. 

Schwartz (Schwartz). It is undisputed that Schwartz retained Kelly to help 

her find a new teaching position, and that the parties executed an Arbitration 

Agreement covering all claims relating to Schwartz’s “employment.” Schwartz 

later filed suit against Kelly, alleging that she was induced to quit her job so 

that she could begin a new one that never materialized. Kelly petitioned the 

Court of Common Pleas of Philadelphia County (trial court) to compel 

arbitration, but the petition was summarily denied because Schwartz’s new 

term of “employment” had never begun. Kelly appeals that ruling, and on 

review, we find that the ambiguity of the language in the Arbitration 

Agreement posed a question of fact that the trial court must resolve after 

considering extrinsic evidence on remand. 
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The pertinent facts are taken from the allegations in Schwartz’s 

complaint, which for present purposes are assumed to be true. From 

September 1, 2022, through June 30, 2023, Schwartz was employed as a 

teacher by the Haddon Township Board of Education in Westmont, New Jersey

(Haddon). In October 2022, Schwartz was contacted by Kelly about a 

potential full-time position at Radnor Township School District

(Radnor). Schwartz expressed interest in a role with Radnor because it was 

higher paying than her position with Haddon, and it was located only minutes 

away from her home.

Kelly asked Schwartz to complete her “application and hiring process,” 

which was part of Kelly’s “on-boarding” procedures for the placement of a new 

employee. Complaint, 11/29/2022, at ¶ 9. Schwartz continued working to 

complete her application materials, and during her discussions with Kelly, she 

was allegedly advised to resign from her position with Haddon so that she 

could begin working for Radnor.

On October 14, 2022, Schwartz and Kelly executed the Arbitration 

Agreement.1 By doing so, they agreed to “use binding arbitration, instead of 

going to court, for any ‘Covered Claims’ that arise between” Kelly, and/or any 

of its employees, clients, or customers.” Of particular relevance here, 

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1 The full title of the document is, “Dispute Resolution and Mutual Agreement 

to Binding Arbitration.”
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paragraph 2 of the Arbitration Agreement defined the “covered claims” that 

would be arbitrable:

Claims Subject to Agreement. The “Covered Claims” under 

this Agreement shall include all common-law and statutory claims 

relating to my employment, including, but not limited to, any 

claim for breach of contract, unpaid wages, wrongful termination, 

and for violation of laws forbidding discrimination, harassment, 

and retaliation on the basis of race, color, religion, gender, age, 

national origin, disability, and any other protected status. I 

understand and agree that arbitration is the only forum for 

resolving Covered Claims, and that both Kelly Services and I 

hereby waive the right to a trial before a judge or jury in federal 

or state court in favor of arbitration for Covered Claims.

Arbitration Agreement, 10/14/2022, at ¶ 2 (emphasis added; emphases in 

original omitted). 

Schwartz tendered her resignation to Haddon on October 20, 2022. One 

week later, she was told by Kelly that the full-time position with Radnor was 

no longer available. Radnor could only offer a part-time position for less 

money per day than what Schwartz had discussed with Kelly. On October 28, 

2022, Haddon accepted Schwartz’s resignation, and she was unsuccessful in 

her attempt to return to that position.

Schwartz filed a complaint against Kelly, alleging two counts: tortious 

interference as to her contract with Haddon, and negligence as to Kelly’s 

misadvise about her employment status with Radnor. Kelly filed preliminary 

objections, challenging the legal sufficiency of both Schwartz’s claims. In the 

alternative, Kelly filed a preliminary objection in the form of a petition to 

compel arbitration and dismiss the case.
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In the order on review, Kelly’s preliminary objection in the form of a 

petition to compel arbitration was overruled; a preliminary objection as to the 

tortious interference count was sustained, and the remaining preliminary 

objections were overruled. Kelly appealed, challenging only the denial of the 

petition to compel arbitration, and in its 1925(a) opinion, the trial court gave 

its reasons why that portion of its order should be upheld. The trial court 

construed the Arbitration Agreement such that its “covered claims” did not 

include those relating to Schwartz’s position with Haddon. See 1925(a) 

Opinion, 5/17/2023, at 5-6. The scope of the Arbitration Agreement was 

limited in this manner based on the assumption that “employment,” as used 

in the document, was meant to refer only to prospective jobs procured by

Kelly for Schwartz. See id. 

The only issue now raised in Kelly’s brief is whether the trial court erred 

in ruling that the Arbitration Agreement does not cover Schwartz’s commonlaw claims. Kelly contends that the Arbitration Agreement covers all claims 

relating to “pre-employment,” such as the “application process” that precedes 

a prospective employee’s start-date with a new employer, making Schwartz’s 

claims arbitrable as a matter of law. Schwartz, on the other hand, argues that 

since her claims only relate to, and arise from, her past employment with 

Haddon, the Arbitration Agreement cannot apply. 

Generally, an order overruling preliminary objections is interlocutory 

and unappealable. See In re Estate of Atkinson, 231 A.3d 891, 897 (Pa.

Super. 2020). An exception to that general rule is that “an order overruling 
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preliminary objections that seek to compel arbitration is an interlocutory order 

appealable as of right pursuant to 42 Pa.C.S. § 7320(a)(1) and Pa.R.A.P.

311(a)(8).” Estate of Atkinson, 231 A.3d at 897 (citations omitted). See

also Pa.R.A.P. 311(a)(8); 42 Pa.C.S. § 7320(a)(1). Thus, the interlocutory 

order now under review is immediately reviewable.

A party may petition the trial court to enforce the terms of an arbitration 

agreement by way of a preliminary objection, and “[w]hether a claim is within 

the scope of an arbitration provision is a matter of contract.” Griest v. Griest, 

183 A.3d 1015, 1022 (Pa. Super. 2018) (quotation omitted); see also Gaffer 

Ins. Co., Ltd. v. Discover Reins. Co., 936 A.2d 1109, 1112 (Pa. Super. 

2007) (explaining that whether, under the terms of the parties’ agreement, 

the “parties are required to submit their dispute to arbitration – is strictly one 

of contract interpretation”). A court shall promptly determine all preliminary 

objections, and “[i]f an issue of fact is raised, the court shall consider evidence 

by depositions or otherwise.” Pa.R.C.P. 1028(c)(2). “Because contract 

interpretation is a question of law, [this Court’s] review of the trial court’s 

decision is de novo and [the] scope of review is plenary.” Gaffer, 936 A.2d, 

at 1112-13. 

A determination as to the scope of an arbitration agreement is governed 

by the following principles:

(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 
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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.

Callan v. Oxford Land Development, Inc., 858 A.2d 1229, 1233 (Pa.

Super. 2004) (internal citations and quotation marks omitted).2

In the present case, we find it difficult (if not impossible) to apply the

above rules of construction to the facts at hand because the record before us

is inadequate. Schwartz alleged in her complaint that she retained Kelly to

help obtain a new teaching position, and the parties entered a contract to that

effect. However, the terms of such a contract appear nowhere in the record. 

The only relevant document that does appear in the record, the

Arbitration Agreement, vaguely alludes to Schwartz’s “employment,” the term

now at the center of the parties’ dispute over the scope of “covered claims”

that must be arbitrated. But the Arbitration Agreement does not convey, inter

alia, the terms of employment of Schwartz by Kelly, Kelly’s services, how Kelly

was to be compensated, or describe the process by which Schwartz would

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2 The pertinent language in the parties’ Arbitration Agreement is commonly 

referred to as an “unlimited arbitration clause” that must be construed as 

“having the broadest conceiving language” requiring arbitration, as it reflects 

the parties’ intent to make the scope of arbitration “unlimited.” See Borough

of Ambridge Water Auth. v. Columbia, 328 A.2d 498, 501 (Pa. 1974).
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begin a new position. The absence of such information makes the document’s

use of the term, “employment,” susceptible to each of the parties’ competing

interpretations. 

Consistent with Pa.R.C.P. 1028(c)(2), a contract term that is ambiguous

on its face may not be construed against the drafter unless extrinsic evidence

bearing on the term’s meaning has first been considered:

Where a document is found to be ambiguous, inquiry should 

always be made into the circumstances surrounding the execution 

of the document in an effort to clarify the meaning that the parties 

sought to express in the language which they chose. It is only 

when such an inquiry fails to clarify the ambiguity that the rule of 

construction relied upon by the chancellor should be used to 

conclude the matter against that party responsible for the 

ambiguity, the drafter of the document.

Burns Mfg. Co., Inc. v. Boehm, 356 A.2d 763, 767 n.3 (Pa. 1976) (internal

citations excluded).

Here, Kelly’s preliminary objections seeking to compel arbitration raised

a question of fact as to how the parties intended for “employment” to be

construed in the Arbitration Agreement. Moreover, the allegations in the

complaint established the existence of additional contract terms which

presumably shed light on the nature of the relationship between the parties.

This made it incumbent on the trial court to consider available extrinsic

evidence relevant to that narrow factual question. See id.; see also Pa.R.C.P. 

1028(c)(2). By instead summarily ruling in Schwartz’s favor, the trial court 

erroneously resolved a question of fact.
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To correct the error, and to comport with the requirements of Pa.R.C.P. 

1028(c)(2), we must vacate the portion of the trial court’s order denying 

Kelly’s petition to enforce the Arbitration Agreement and remand the case so 

that the trial court may “consider evidence by depositions or otherwise.” 

Pa.R.C.P. 1028(c)(2).

Order affirmed in part and reversed in part. Case remanded for further 

proceedings consistent with this Opinion. Jurisdiction relinquished.

Date: 3/28/2024