J-A12003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY D’ANTONIO,                             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

WILLIAM BEAM AND UNIVERSAL
TECHNICAL INSTITUTE, INC.,

                            Appellants              No. 2309 EDA 2015


                  Appeal from the Order Entered July 10, 2015
                In the Court of Common Pleas of Chester County
                     Civil Division at No(s): No. 2015-02417


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JUNE 22, 2016

       William Beam and Universal Technical Institute, Inc., (collectively

“Appellants”) appeal the Order entered in the Court of Common Pleas of

Chester County on July 10, 2015, denying their Petition to Compel

Arbitration and Stay the Judicial Proceedings.1     Upon our review of the



____________________________________________


1
  In its Opinion per Rule of Appellate Procedure 1925, the trial court
expressed its view that this appeal is interlocutory and noted that Appellants
did not file a motion for reconsideration. 42 Pa.C.S.A. § 7320(a)(1) provides
that an appeal may be taken from a court order denying a party’s application
to compel arbitration. In addition, Pa.R.A.P. 311(a)(8) states an appeal may
be taken as of right and without reference to Pa.R.A.P. 341(c) from an order
“which is made appealable by statute or general rule.” See also Elwyn v.
DeLuca, 48 A.3d 457, 460 n. 4 (Pa.Super. 2012).




*Former Justice specially assigned to the Superior Court.
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record, we reverse the trial court’s refusal to compel this action to

arbitration and remand for arbitration.

      The trial court set forth the background of this case as follows:

      In 2006, Appellee Anthony D'Antonio submitted an application
      for employment at Appellant UTI's Exton, Pennsylvania campus.
      As part of the employment application and as a condition of
      employment, Appellee was purportedly required to execute an
      agreement to arbitrate. The terms of the agreement to arbitrate,
      in relevant part, are as follows:

          I further agree that, should an offer of employment be
          extended to me, any dispute arising between UTI, Inc.
          and me: (I) in connection with my leaving
          employment, either voluntarily or involuntarily; and /or
          (ii) in connection with my employment (whether or not
          it involves my leaving employment), which dispute falls
          within the jurisdiction of the Equal Employment
          Opportunity Commission (and /or any counterpart state
          agency), will likewise be resolved exclusively through
          the process of arbitration, pursuant to the rules of the
          American Arbitration Association.

          I understand that this arbitration agreement covers any
          and all claims that I might bring under the Age
          Discrimination in Employment Act, Title VII of the Civil
          Rights Act of 1964 as amended, including amendments
          to the Civil Rights Act of 1991, the Americans with
          Disabilities Act, and any claims related to the foregoing
          asserted under the law of contract and /or tort.

           Appellee was hired as an instructor in the Education
      Department of UTI's Exton, Pennsylvania campus and was
      employed by Appellant for eight (8) years. In 2014, Appellant
      terminated Appellee's employment.
            On or about March 19, 2015, Appellee filed a Complaint in
      the Court of Common Pleas of Chester County against Appellants
      UTI and William Beam. Appellant Beam was Appellee's
      supervisor at the time that Appellee's employment was
      terminated. Appellee's Complaint asserted the following claims:
      (1) interference with a contract; (2) interference with a


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      prospective contract; (3) false light invasion of privacy; (4)
      defamation; (5) disparagement; (6) civil conspiracy; and (7)
      breach of contract. Appellee alleges that Appellant Beam acted
      outside the course and scope of his employment when he
      committed the described tortious acts.
             On or about April 30, 2015, Appellants filed a Petition to
      Compel Arbitration and Stay the Proceedings Pending
      Arbitration. In the Petition, Appellants argued that the clause
      "which dispute falls within the jurisdiction of the Equal
      Employment Opportunity Commission" modifies only subsection
      (ii) related to disputes in connection with [ ] employment and
      does not have any effect on subsection (I) related to "leaving [ j
      employment, either voluntarily or involuntarily." As a result,
      Appellants claimed that Appellee was bound to arbitrate the
      disputes pursuant to the agreement to arbitrate as each of the
      claims raised in Appellee's Complaint were concerned with his
      role as a UTI employee. We disagree. By Order dated July 10,
      2015, this [c]ourt denied Appellants' Petition. Appellants filed a
      timely Notice of Appeal on July 30, 2015. Appellants
      subsequently filed a timely Concise Statement of Errors on
      August 26, 2015.

Trial Court Opinion, filed 9/14/15, at 2-3.

      In their Brief, Appellants present the following Statement of the

Question Involved:


            Do [Appellee’s] claims, all of which relate to and arise out
      of his termination, fall within the scope of the arbitration
      agreement, which encompasses, among other things, “any
      dispute arising between UTI, Inc. and me [] in connection with
      my leaving employment, either voluntarily or involuntarily…”?

Brief of Appellants at 4 (emphasis in original).

      The determination of the existence of an arbitration agreement and of

whether a dispute is within the scope of the arbitration agreement presents

questions of law and our scope of review is plenary. Pisano v. Extendicare

Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), appeal denied, 624 Pa. 683,


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86 A.3d 233 (2014). Our review of an order refusing 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 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.

Provenzano v. Ohio Valley General Hospital, 121 A.3d 1085, 1094–95

(Pa.Super. 2015) (citation omitted). Courts must make the aforesaid

determinations with an awareness that:

      (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. . . .

      [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

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       most reasonable and probable bearing in mind the objects which
       the parties intended to accomplish through the agreement. 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.

Id. at 1095 (citations and quotation marks omitted).

       Herein, Appellants do not dispute the trial court’s finding that Appellee

entered into a valid and enforceable agreement to arbitrate with them, and

upon our review of the record, which includes Appellee’s online application

for employment at UTI’s Exton campus, we agree. See [Appellants’] Petition

to Compel Arbitration and Stay the Judicial Proceedings at Exhibit 1.2

____________________________________________


2
  Appellee’s argument in his appellate brief centers around his position that
the trial court never decided whether an agreement to arbitrate exists
between the parties; therefore, he asks this Court to dismiss this matter and
remand for a determination as to whether the parties entered into a valid
agreement to arbitrate all disputes. Contrary to Appellee’s contentions, in
its July 10, 2015, Order the trial court found the parties had entered into a
valid arbitration agreement. See Trial Court Order, filed July 10, 2015, n.1
(stating “[c]learly a valid agreement exists, but it is limited in scope.”)
Moreover, in its September 14, 2015, Opinion, the trial court reiterated its
view that the parties were bound by an existing and valid agreement to
arbitrate. See Trial Court Opinion, filed 9/14/15 at 5 (indicating “although
Appellee disputes that he agreed to the arbitration provision at issue, it is
clear that there is an existing and valid agreement to arbitrate”). Appellee
never filed a cross-appeal challenging the trial court’s determination in this
regard, although he also posits in his brief that no agreement to arbitrate
exists because, as he stated in his deposition testimony, he never completed
an application for employment either in writing or electronically, and there is
no direct evidence of record to the contrary. Brief of Appellee at 7-11. As
such, despite the fact that Appellee “prevailed” in the sense that the trial
court held he was not compelled to arbitrate the claims raised in his
complaint, he was nevertheless aggrieved in that the trial court’s holding
encompassed a finding that he and Appellants had entered into a valid,
albeit limited, agreement to arbitrate. See Pittsburgh Constr. Co. v.
(Footnote Continued Next Page)


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Rather, Appellants’ claim challenges the trial court’s determination that the

dispute does not fall within the scope of the arbitration agreement. Brief of

Appellants at 10.         In reaching its decision the plain language of the

arbitration clause pertains only to those claims that fall within the

jurisdiction of the EEOC such that the agreement does not require the

parties to arbitrate the dispute, the trial court reasoned as follows:

             In [their] Petition, Appellants argued that the clause
      "which dispute falls within the jurisdiction of the Equal
      Employment Opportunity Commission" modifies only subsection
      (ii) related to disputes in connection with [Appellee’s]
      employment and has no effect on subsection (i). Thus,
      Appellant[s] would have us find that the first category of
      disputes, regarding the voluntary or involuntary termination of
      employment, is not limited in scope to claims that fall within the
      jurisdiction of the EEOC. Appellant[s] offer[] no support for this
      construction and/or interpretation of this provision of the
      agreement.
             We read this clause differently. Indeed, when read as a
      whole and with the conjunction "and”,[3] it is clear to this [c]ourt
      that disputes arising both to the termination of employment and
      employment in general are subject to arbitration only if such
      disputes fall within the jurisdiction of the EEOC. In making this
      determination, we focused on reading and interpreting the
      agreement to arbitrate in its entirety. Having determined that
      the arbitration terms are ambiguous as a matter of law, we
      construe the language of the agreement against the drafter, or
      Appellants, as we are entitled to do. It is simply not a rational
      construction of the terms of the agreement to interpret the
      clause as only subjecting some disputes arising out of an
                       _______________________
(Footnote Continued)

Griffith, 834 A.2d 572, 588-90 (Pa.Super. 2003) (stating a party who
prevails may nonetheless be considered an aggrieved party where it did not
receive the complete relief it sought and must, therefore, file a cross-appeal
under Pa.R.A.P. 511 or risk waiver of that issue). As such, this issue is not
properly before us.
3
  As indicated above, the conjunction is “and/or.”



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      employee's employment (termination or otherwise) to arbitration
      if they fall within the jurisdiction of the EEOC while applying a
      much broader scope of the provision to those disputes that arise
      from an employee's termination, be it voluntary or involuntary.
             Moreover, the provisions of the agreement overlap.
      Indeed, the claims asserted in Appellee's Complaint fall within
      both subsections of the Agreement to Arbitration as they are
      related to his "employment (whether or not it involves [his]
      leaving employment)" as well as the termination of his
      employment, whether voluntary or involuntary. In construing the
      terms against Appellants, we find that the most rational
      construction of the agreement requires that all disputes relating
      to Appellee's employment fall within the jurisdiction of the EEOC
      in order to be submitted to arbitration.
             Therefore, because the arbitration clause states that the
      parties agree to arbitrate disputes which, "fall within the
      jurisdiction of the Equal Employment Opportunity Commission
      ..." and there is nothing within the body of the complaint or any
      ancillary filings in which an allegation is made that would fall
      within the jurisdiction of the EEOC, Appellee must not be
      compelled to submit his claims to arbitration.

Trial Court Opinion, filed 9/14/15, at 6-7.   To the contrary, we find the plain

language of the arbitration agreement requires the parties to arbitrate

Appellee’s claims.

      Subsection (I) of the agreement to arbitrate is preceded by the

provision that “any dispute arising between UTI, Inc. and [Appellee]:” and

continues “(I) in connection with [Appellee’s] leaving employment, either

voluntarily or involuntarily;[.]”    The conjunction “and/or” follows and

immediately precedes Subsection (ii) which states “in connection with

[Appellee’s] employment (whether or not it involves [Appellee’s] leaving

employment), which dispute falls within the jurisdiction of the Equal

Employment Opportunity Commission (and/or any counterpart state agency


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will likewise be resolved exclusively through the process of arbitration,

pursuant to the rules of the American Arbitration Association.”

      When read in context and in accordance with common rules of

grammar and punctuation, the arbitration clause describes two categories of

disputes which fall within its rubric. Subsection (I) which is preceded by a

reference to “any dispute” is punctuated with a semicolon, which is used to

separate equal and balanced sentence elements.            As such, Subsection (I)

independently pertains to disputes arising from Appellee’s voluntary or

involuntarily termination of his employment with UTI.              The semicolon

indicates that these words are closely related to Subsection (ii) which is

immediately    preceded   by    the    coordinating   conjunctions        “and/or[.]”

Coordinating   conjunctions    link   words,    phrases    or   clauses    of   equal

importance. Subsection (ii) discusses disputes falling within the jurisdiction

of the EEOC whether or not they involve Appellee leaving his position with

UTI. Thus, disputes arising from Appellee’s leaving the employ of UTI that

do not fall within the jurisdiction of the EEOC and/or disputes falling within

the jurisdiction of the EEOC will “likewise” be resolved by the arbitration

process. The term likewise is an adverb defined as meaning: “1. moreover;

in addition; also; too:   2. In like manner; in the same way; similarly.”

Likewise Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/

likewise (last visited June 2, 2016).          As such, read as a whole, the

agreement to arbitrate provides that disputes involving Appellee’s leaving his


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employment with UTI will also be subject to arbitration as will those disputes

which fall within the jurisdiction of the EEOC, whether or not they involve

Appellee’s leaving his position with UTI.

      Stated and viewed another way, the arbitration agreement indicates:

           I further agree that, should an offer of employment be
           extended to me, any dispute arising between UTI, Inc.
           and me: (I) in connection with my leaving
           employment, either voluntarily or involuntarily;

           and/or

           (ii) in connection with my employment (whether or not
           it involves my leaving employment), which dispute falls
           within the jurisdiction of the Equal Employment
           Opportunity Commission (and /or any counterpart state
           agency)

           will likewise be resolved exclusively through the
           process of arbitration, pursuant to the rules of the
           American Arbitration Association.

      This interpretation is consistent with other language contained in the

agreement to arbitrate provision as well.    For instance, the agreement to

arbitrate concludes with a statement that Appellee:

      Understand[s] that, by agreeing to use arbitration as the
      exclusive forum for the resolution of the employment disputes
      described above, [HE IS] WAIVING THE RIGHT TO ASSERT ANY
      SUCH CLAIMS IN THE STATE OR FEDERAL COURTS AND
      WAIVING [HIS] RIGHT TO A TRIAL BY JURY. [He made] this
      waiver voluntarily, with full knowledge of its effects, and after
      having had full opportunity to discuss it with persons of [his]
      choosing.

See Candidates Assessment Information Sheet, dated 3/27/06, at 1-2.

Following this statement, Appellee’s full name appears with an indication


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that he accepts this agreement and that the day’s date was March 27, 2006.

In boldface type, Appellee also was alerted that his acceptance is required in

order for him to complete the online application process. Id. at 2.

      In addition, further evidence of the parties’ intent to resolve disputes

through the arbitration process is contained in UTI’s Employee Handbook

under the section entitled EMPLOYMENT PRACTICES AND GUIDELINES

which stresses the parties agree to arbitrate disputes arising between UTI

and its employees. See UTI Employee Handbook at 5. Appellee’s signature

appears on the Employee Handbook Acknowledgement Form which is dated

July 13, 2006.     See Praecipe for Determination, filed July 14, 2015, at

Exhibit H.

      Appellee’s claims raised in his Complaint fall squarely within the scope

of Subsection I of the arbitration agreement which pertains to any dispute

arising between the parties in connection with Appellee’s voluntary or

involuntary termination or his employment with Appellants.             In his

Complaint, Appellee includes counts alleging interference with contract,

interference with prospective contract, false light invasion of privacy,

defamation, disparagement, civil conspiracy, and breach of employment

contract.    All of the allegations contained in the Complaint concern to the

involuntary termination of Appellee’s employment with UTI and the alleged

resultant damages he sustained therefrom.      Accordingly, we hold that the




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trial court erred in denying Appellants’ motion to stay and to compel

arbitration.

      Order denying Appellants’ motion to compel arbitration reversed. Case

remanded for arbitration. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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