J-A31041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KELSI WEIDNER                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MCCANN EDUCATION CENTERS, INC.
AND DELTA CAREER EDUCATION
CORPORATION

                            Appellants              No. 529 MDA 2014


                Appeal from the Order Entered March 12, 2014
             In the Court of Common Pleas of Cumberland County
                         Civil Division at No: 13-3681


BEFORE: BOWES, OTT, and STABILE, JJ.

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

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

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

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

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

After careful review, we reverse and remand.

       Appellee Kelsi Weidner was training to become a laboratory technician

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

enrollment agreement (the “Enrollment Agreement”) between Appellee and
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1
  See Pa.R.A.P. 1028(a)(6). The trial court’s order is final and appealable
pursuant to Pa.R.A.P. 311(a)(8). Midomo Co., Inc. v. Presbyterian
Housing Co., 739 A.2d 180, 83-84 (Pa. Super. 1999).
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McCann.2 Appellee alleges representatives of McCann advised her she would

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

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

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

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

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

of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law

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

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

and (D).    Appellants filed preliminary objections3 and a petition to compel

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

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

valid agreement to arbitrate. This timely appeal followed.

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

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

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

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

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2
   The complaint alleges Delta owns and operates McCann.             Delta and
McCann have filed a joint brief.
3
   Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure permits a
preliminary objection on grounds of an “agreement for alternative dispute
resolution.” Pa.R.C.P. 1028(a)(6).




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test, pursuant to which we analyze (1) whether a valid arbitration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

arbitration. Appellants also argue the FAA preempts state law holding that


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arbitration agreements are to be strictly construed. See Midomo, 739 A.2d

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

strictly construed).

      The FAA applies where the contract at issue involves interstate

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

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

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

complaint alleges that Appellant Delta Career Education Corporation is a

Virginia Corporation that owns McCann Education Centers, Inc.          Amended

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

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

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

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

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

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

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

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

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

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

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

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

Duquesne Light Court elected not to remand for a finding on the issue, as


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the result in that case was the same under federal or state law. Id. at 1334.

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

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

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

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

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

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

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

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

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

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

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

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

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

therefore need not decide whether the FAA policy favoring arbitration

preempts the strict construction principles described in Midomo to the

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

agreement.

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

before us Appellee’s amended complaint, Appellant’s preliminary objections,




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and Appellee’s response to the preliminary objections.4 The parties did not

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

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

the face of the record, Appellants properly endorsed their preliminary

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

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

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

preliminary objections, but her response is unverified.5

       Appellants’    preliminary     objections   allege   the   existence   of   the

arbitration clause. They quote the clause and attach a full copy of the four-

page Enrollment Agreement.              Preliminary Objections, 10/1/13, at ¶ 5,

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

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

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

assertion on language contained in the Enrollment Agreement immediately

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


____________________________________________


4
  See Pa.R.C.P. 1017(a) (allowable pleadings include, among other things, a
complaint, preliminary objections, and a response to preliminary objections).
5
   Pa.R.C.P. 1024(a) provides: “Every pleading containing an averment of
fact not appearing of record in the action or containing a denial of fact shall
state that the averment or denial is true upon the signer’s personal
knowledge [….]”     Pa.R.C.P. 1024(a).     Despite the lack of verification,
Appellants did not move to strike any portion of Appellee’s response.



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

its provisions.” Enrollment Agreement, at 2.

     Appellee’s unverified response repeatedly asserts the Enrollment

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

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

to submit the issue of accreditation of certain programs to arbitration

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

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

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

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

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

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

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

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

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

provision.” Id.

     In summary, the preliminary objections and response thereto dispute

whether the terms of the Enrollment Agreement evince the parties’

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

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

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

For the following reasons, we disagree.


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J-A31041-14


      First, we observe several pertinent features of the Enrollment

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

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

paragraphs, one addressing financial aid and another addressing the times

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

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

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

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

take prerequisite courses.      Id.    The third addresses job placement

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

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

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

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

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

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

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

assistance paragraph. Id.

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

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

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

provisions for return of unused Title IV funds continues onto page four. Id.




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J-A31041-14


at 4.    Underneath that section is the arbitration clause.      The arbitration

clause reads:

        ARBITRATION
               You (the student) and McCann School of Business and
        Technology agree that any dispute arising out of our [sic]
        relating to this enrollment agreement, your enrollment or your
        attendance at McCann School of Business and Technology,
        whether such dispute arises during or after your attendance and
        whether the dispute is based on contract, tort, statute, or
        otherwise, shall be resolved by binding arbitration in the city and
        county in which the school is located within the state of
        Pennsylvania. You (the student) and McCann School of Business
        and Technology each further agrees that this arbitration
        provision provides each party with this exclusive remedy of
        redress of any grievance or resolution of any dispute arising out
        of this Agreement, AND EACH PARTY EXPRESSLY WAIVES ANY
        RIGHT, INCLUDING WITHOUT LIMITATION THE RIGHT TO TRIAL
        BY JURY, IT MIGHT HAVE TO SEEK REDRESS IN ANY FEDERAL,
        STATE OR LOCAL COURT OR OTHER FORUM, except for an action
        to enforce in court an arbitration award rendered to this
        Agreement.

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

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

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

it is “Page 4 of 4.” Id.

        Having reviewed the four pages of the Enrollment Agreement, we

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

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

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

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

Appellee signed once and initialed in three places, indicates that it is page



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agreement and would abide by all its provisions. Appellant does not raise a


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claim of fraud sufficient to create an issue that the arbitration provision

should be stricken from the Agreement.6

       The second and third prongs of Johnston the Florist are not

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

arbitration clause are insufficiently definite, or that consideration was

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

arbitrate.7

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

unconscionability of the arbitration agreement.      Appellee argues that the

Agreement is procedurally unconscionable given the gross disparity between

the parties bargaining power, and substantively unconscionable because the

arbitration provision unreasonably favors Appellant by denying plaintiffs like

Appellee access to the courts and forcing them into arbitration.
____________________________________________


6
   Appellee alleges only that McCann made misrepresentations about the
accreditation of its course of study and Appellee’s ability to sit for a
certification exam upon completion. Those allegations do not relate directly
to the agreement to arbitrate, and therefore, they must await the review of
an arbitrator. These allegations in any event, even if true (and we express
no opinion), are not a sufficient basis to avoid the arbitration clause. “[A]
general attack on a contract for fraud is to be decided under the applicable
arbitration provision as a severable part of the contract and that only where
the claim of fraud in the inducement goes specifically to the arbitration
provision itself should it be adjudicated by the court rather than the
arbitrator.” Setlock v. Pinebrook Pers. Care & Ret. Ctr., 56 A.3d 904,
910 (Pa. Super. 2012), appeal denied, 74 A.3d 127 (Pa. 2013).
7
    We therefore need not address Appellants’ argument that equitable
estoppel precludes Appellee from challenging the validity of the arbitration
clause. We note that the trial court did not address that issue.



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       Under Pennsylvania law, a contract or term is unconscionable and

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

challenged provision and the term unreasonably favors the party asserting

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

The lack of meaningful choice and unreasonableness have been termed

procedural and substantive unconscionability, respectfully.   Id.   Contracts

cannot be deemed procedurally unconscionable simply due to a disparity in

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

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

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

risks due to superior bargaining position. Id. Substantive unconscionability

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

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

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

elements of unconscionability is upon the party challenging an agreement,

with the ultimate determination of unconscionability to be made by the

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

       Here, Appellee asserts that there was gross disparity in bargaining

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

the Agreement.      To support this assertion Appellee merely alleges that

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

possessed few choices regarding her education beyond schools like the


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Appellant. Beyond these statements, Appellee has not attempted to further

substantiate her procedural unconscionability claim by demonstrating for

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

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

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

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

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

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

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

procedural unconscionability.

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

procedurally unconscionable due to it being poorly formatted and organized.

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

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

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

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

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

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

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

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

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

been agreed to between the parties, a conclusion we already disapproved.


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       Having     found       that   Appellee       did   not      establish   procedural

unconscionability,       we     need      not      address      Appellee’s     substantive

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

carry her burden to prove both procedural and substantive unconscionability.

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

unconscionability     not     necessary    when      arbitration     agreement     is   not

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

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

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

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

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

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

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

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

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

substantively unconscionable.

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

order and remand for further proceedings.8



____________________________________________


8
   The trial court did not address whether the parties’ dispute falls within the
scope of the arbitration clause. We will not address that question in the first
instance.



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      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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