J-A31023-16


                                  2017 PA Super 206

LESLIE SALTZMAN, D.O.                              IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THOMAS JEFFERSON UNIVERSITY
HOSPITALS, INC.
AND
JEFFERSON MEDICAL CARE

                            Appellants                     No. 2593 EDA 2015


                     Appeal from the Order Dated July 17, 2015
               In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): May Term, 2015, No. 00737

BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

OPINION BY MOULTON, J.:                                     FILED JUNE 30, 2017

       Thomas Jefferson University Hospitals, Inc. and Jefferson Medical Care

(together, “Jefferson”) appeal from the July 17, 2015 order entered in the

Philadelphia     County     Court    of   Common   Pleas    overruling   Jefferson’s

preliminary objections to the complaint of Leslie Saltzman, D.O. and

ordering Jefferson to file an answer within 20 days.1             We reverse and

remand.
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
         Generally, “an order [overruling] a party’s preliminary objections is
interlocutory and, thus, not appealable as of right.” Callan v. Oxford Land
Dev., Inc., 858 A.2d 1229, 1232 (Pa.Super. 2004). However, an exception
to this rule exists when a party appeals from an order denying a petition to
compel arbitration. Id.; see Pa.R.A.P. 311(a)(8); 42 Pa.C.S. § 7320(a).
(Footnote Continued Next Page)
J-A31023-16



      The trial court set forth the following facts:
             [Saltzman] began working for Jefferson in August 2014
          at the Myrna Brind Center for Integrative Medicine. A few
          days prior to her start date, [Saltzman] signed an
          employment contract with Defendant, Jefferson Medical
          Care [(“JMC”)].    This employment contract contains a
          portion that the parties refer to as the Physician Service
          Agreement [(“Agreement”)], and it contains an arbitration
          clause that reads as follows:

              Dispute Resolution. In the event of any
              controversy or claim between the parties hereto
              arising under or related to this Agreement or an[y]
              breach thereof, the parties shall confer in good
              faith in an attempt to resolve the dispute
              informally. If the controversy is not satisfactorily
              resolved at this level, then the grieving party shall
              inform the other party in writing of its intention to
              pursue arbitration, such notice stating the
              substance of the controversy. If the matter is not
              resolved within thirty (30) days after such notice,
              then the controversy shall be settled by binding
              arbitration in Philadelphia, Pennsylvania in
              accordance with the American Health Lawyers
              Association Alternative Dispute Resolution Services
              Rules of Procedure for Arbitration then in effect.

             The    Defendant,    Thomas     Jefferson   University
          Hospital[s], Inc. [(“TJUH”)], was not a party to the
          Physician Service Agreement, and no representative signed
          the Agreement on behalf of [TJUH].

             [Saltzman] avers that while she was working at Myrna
          Brind Center for Integrative Medicine, she learned that
          [Jefferson was] engaging in wrongdoing.          Specifically,
          [Saltzman] avers that [Jefferson] . . . w[as] holding forth a
          chiropractor, George Zabrecky, as a licensed doctor of
          medicine, when he did not hold such credentials. She
                       _______________________
(Footnote Continued)

Therefore, the trial court’s order overruling Jefferson’s preliminary objections
seeking to compel arbitration, though interlocutory, is appealable as of right.



                                            -2-
J-A31023-16


           avers that [Jefferson] delegated medical responsibilities to
           Mr. Zabrecky despite [its] knowledge that he was not
           qualified, trained, experienced, licensed or certified to
           perform these duties. [Saltzman] avers that she reported
           this wrongdoing on or about October 15, 2014, October
           24, 2014, and October 28, 2014.               [Saltzman’s]
           employment was terminated on November 11, 2014.

Opinion, 7/11/16, at 1-2 (“1925(a) Op.”).

       On May 8, 2015, Saltzman filed a complaint against Jefferson, alleging

claims for retaliation in violation of the Pennsylvania Whistleblower Law, 43

P.S. §§ 1421-28, and common law wrongful termination.                    Jefferson filed

preliminary objections, seeking to compel arbitration pursuant to the

Agreement.      On July 17, 2015, the trial court overruled the preliminary

objections and ordered Jefferson to file an answer within 20 days.

       In its opinion, the trial court offered three reasons for denying

Jefferson’s preliminary objections.            First, the trial court stated that “[t]he

fact that [TJUH] was not a party to the Physician Service Agreement was a

critical factor” in its decision not to compel arbitration. 1925(a) Op. at 3-4.

The court explained that because TJUH “was not a party to the . . .

Agreement, [Saltzman] could not knowingly waive her right to sue [TJUH] in

a court of law when she” signed the Agreement. Id. at 3.2 Second, the trial
____________________________________________


       2
         Jefferson argues that the trial court erroneously concluded that the
arbitration provision is unenforceable as to TJUH because TJUH is not a party
to the Agreement. We agree. This Court has held that a non-signatory to
an arbitration agreement can enforce the agreement if there is an “obvious
and close nexus” between the non-signatory and either the contract itself or
the contracting parties. Provenzano v. Ohio Valley Gen. Hosp., 121 A.3d
1085, 1097 (Pa.Super. 2015) (quoting Dodds v. Pulte Home Corp., 909
(Footnote Continued Next Page)


                                           -3-
J-A31023-16



court found that the “Agreement was an unconscionable contract of

adhesion” that unreasonably favored Jefferson.              Id. at 4.   In making this

determination, the court asserted that Jefferson failed to establish that

Saltzman read and understood the consequences of the arbitration provision

before signing the Agreement.            Id.     Third, the trial court concluded that

“[c]ompelling arbitration in this matter would be fundamentally incompatible

with the remedial and deterrent functions of the” Whistleblower Law, finding

that “[t]he citizens of the Commonwealth of Pennsylvania, and the public at

large, have an interest in the public resolution of” Saltzman’s claims. Id. at

5. Jefferson timely appealed to this Court.

      Jefferson raises the following issues on appeal:
          1. Did the Trial Court abuse its discretion and/or err as a
             matter of law when it failed to consider, let alone apply,
             the liberal policy favoring arbitration agreements under
             the Federal Arbitration Act (“FAA”) and Pennsylvania
             law and overruled Jefferson’s preliminary objections
             seeking to compel arbitration, when there exists a valid
             enforceable agreement to arbitrate that both JMC and
             TJUH may enforce against Saltzman and when the
             claims asserted by Saltzman against Jefferson fall
             within the scope of the Arbitration Provision because the
             claims constitute “any controversy or claim between the
             parties to the [Agreement]” and “aris[e] under or
             relat[e] to [the Agreement] or any breach thereof”?



                       _______________________
(Footnote Continued)

A.2d 348, 351 (Pa.Super. 2006)). In her brief, Saltzman concedes that
TJUH has an obvious and close nexus to JMC and would be bound by the
arbitration provision were it deemed valid and enforceable. Saltzman’s Br.
at 8 n.2. Thus, our disposition applies equally to both TJUH and JMC.



                                            -4-
J-A31023-16


       2. Did the Trial Court abuse its discretion or err as a
          matter of law in overruling Jefferson’s preliminary
          objections based on the finding that the Arbitration
          Provision was an unenforceable unconscionable contract
          of adhesion, especially when the Trial Court:

              a. did not determine both that: (i) one of the parties
                 lacked a meaningful choice before accepting the
                 terms     of      the    provision      (procedural
                 unconscionability);   and    (ii)   the   provision
                 unreasonably     favors   Jefferson    (substantive
                 unconscionability);

              b. improperly placed the burden on Jefferson to
                 present    evidence    disproving    procedural
                 unconscionability when Saltzman did not initially
                 present such evidence, and, in the purported
                 absence of such evidence from Jefferson, found
                 the Arbitration Provision unconscionable and
                 unenforceable; and

              c. the evidence Jefferson presented (some of which
                 the Trial Court erred in not considering) showed
                 that the Arbitration Provision was not procedurally
                 and/or substantively unconscionable?

       3. Did the Trial Court abuse its discretion when it
          overruled the preliminary objections on the basis of
          public policy and/or the “nature of the claims,” when:

              a. There is no basis in the Whistleblower Law to do
                 so (i.e., the Arbitration Provision is not in
                 derogation of any right Saltzman has been
                 provided by statute and there is no inherent
                 conflict between arbitration and the Whistleblower
                 Law’s underlying purpose);

              b. The public policy on which the Trial Court relied –
                 the right of the public to be privy to the litigation
                 of Saltzman’s claims – is not sufficiently well-
                 defined and dominant, as the law requires, to
                 justify   rendering    the   Arbitration   Provision
                 unenforceable based on public policy;


                                    -5-
J-A31023-16


               c. In so doing, the Trial Court created an outright
                  prohibition on arbitrating whistleblower claims,
                  which is preempted by the FAA; and

               d. The strong liberal policy favoring arbitration
                  agreements clearly outweighs any purported
                  public policy upon which the Trial Court relied.

         4. Did the Trial Court abuse its discretion in finding that
            the [Agreement] was an “employment contract,” and
            that Saltzman was “employed” by Jefferson?

Jefferson’s Br. at 3-5 (trial court answers omitted).

      Our review of an order overruling preliminary objections seeking to

compel arbitration “is limited 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.” Callan v. Oxford Land Dev.,

Inc., 858 A.2d 1229, 1233 (Pa.Super. 2004). In making this determination,

we consider 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 not susceptible to an
         interpretation that covers the asserted dispute.

Id. (quoting Highmark Inc. v. Hospital Serv. Ass'n of Northeastern

Pa., 785 A.2d 93, 98 (Pa.Super. 2001)).       Whether a dispute is within the

scope of an arbitration agreement is a question of law for which our scope of

review is plenary.    Provenzano v. Ohio Valley Gen. Hosp., 121 A.3d

1085, 1095 (Pa.Super. 2015).




                                        -6-
J-A31023-16



       Pennsylvania courts apply the liberal policy favoring arbitration

agreements embodied in the FAA. See id. As our Supreme Court recently

emphasized, courts are “obligat[ed] to consider questions of arbitrability

with a ‘healthy regard for the federal policy favoring arbitration.’” Taylor v.

Extendicare Health Facilities, Inc., 147 A.3d 490, 509 (Pa. 2016)

(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 20 (1983)), cert. denied, 137 S.Ct. 1375 (2017). “[T]he FAA binds state

courts to compel arbitration of claims subject to an arbitration agreement.”

Id. (citing 9 U.S.C. § 2).3 “This directive is mandatory, requiring parties to

proceed to arbitration on issues subject to a valid arbitration agreement,

even if a state law would otherwise exclude it from arbitration.” Id. “The

only exception to a state’s obligation to enforce an arbitration agreement is

provided by the savings clause, which permits the application of generally

applicable     state   contract    law   defenses   such   as   fraud,   duress,   or
____________________________________________


       3
           Section 2 of the FAA provides:

            A written provision in . . . a contract evidencing a
            transaction involving commerce to settle by arbitration a
            controversy thereafter arising out of such contract or
            transaction, or the refusal to perform the whole or any
            part thereof, or an agreement in writing to submit to
            arbitration an existing controversy arising out of such a
            contract, transaction, or refusal, shall be valid, irrevocable,
            and enforceable, save upon such grounds as exist at law or
            in equity for the revocation of any contract.

9 U.S.C. § 2.      Pennsylvania’s Uniform Arbitration Act contains almost
identical language. See 42 Pa.C.S. § 7303.



                                           -7-
J-A31023-16



unconscionability, to determine whether a valid contract exists.”     Id.; see

also Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S.Ct. 1421, 1426

(2017) (stating that court may invalidate arbitration agreement only “based

on ‘generally applicable contract defenses’ like fraud or unconscionability”).

      When a party to an arbitration agreement seeks to compel arbitration,

our inquiry is the same whether the agreement is governed by federal or

Pennsylvania law.   Provenzano, 121 A.3d at 1096.         We must determine:

(1) whether a valid agreement to arbitrate exists; and (2) whether the

dispute falls within the scope of the arbitration agreement. Highmark, 785

A.2d at 98; see Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654-55

(Pa.Super. 2013). If these two requirements are satisfied, the dispute must

be submitted to arbitration.    Messa v. State Farm Ins. Co., 641 A.2d

1167, 1168 (Pa.Super. 1994).

  I. Whether a Valid and Enforceable Arbitration Agreement Exists
                 Between Saltzman and Jefferson

      As noted above, the trial court concluded that the arbitration

agreement was unenforceable both because it was an unconscionable

contract of adhesion and because its enforcement would violate public

policy.   Notably, in her brief, Saltzman concedes that the arbitration

provision is not an unconscionable contract of adhesion, positing that

“[w]hile the [trial court’s] outcome was correct, [its] reasoning was slightly

amiss.” Saltzman’s Br. at 9. Instead, Saltzman argues that “the arbitration




                                     -8-
J-A31023-16



clause is not unenforceable because it is a contract of adhesion, but because

of its unacceptable minimization of [her] right to a potential recovery.” Id.4

    A. The Arbitration Clause and the Vindication of Statutory Rights

       Under the Whistleblower Law, a plaintiff may be awarded the costs of

litigation, including reasonable counsel fees and witness fees.        43 P.S.

§ 1425.5 The Agreement, however, provides that “the fees and costs of the

arbitrator and related expenses of arbitration shall be borne equally by the

parties” and that “[e]ach party shall be responsible for its own attorney’s

fees and costs.” Agmt. ¶ 16. Saltzman claims that the remedies available

under the Whistleblower Law are significantly greater than those available

under the Agreement and her litigation costs would be higher in arbitration.

Thus, Saltzman contends that the arbitration clause is unenforceable

because it precludes her from effectively vindicating her statutory rights.

____________________________________________


       4
        Because Saltzman does not argue that the arbitration provision is an
unenforceable contract of adhesion, we need not address that issue.
       5
           Section 1425 of the Whistleblower Law provides:

       A court, in rendering a judgment in an action brought under this
       act, shall order, as the court considers appropriate,
       reinstatement of the employee, the payment of back wages, full
       reinstatement of fringe benefits and seniority rights, actual
       damages or any combination of these remedies. A court shall
       also award the complainant all or a portion of the costs of
       litigation, including reasonable attorney fees and witness fees, if
       the complainant prevails in the civil action.

43 P.S. § 1425.



                                           -9-
J-A31023-16



We disagree.

       First, in its brief, Jefferson admits that Saltzman could recover the

same remedies “whether she litigates her claims in arbitration or in court.”

Jefferson’s Br. at 40.       Jefferson further states that “any arbitrator would

have the authority to . . . award the same remedies Saltzman could be

awarded in a court should she prevail.” Id. at 45.

       Second, the Agreement provides that the arbitration proceeding would

be governed by the American Health Lawyers Association Dispute Resolution

Service Rules of Procedure for Arbitration (“AHLA Rules”).        Agmt. ¶ 16.6

Section 10 of the AHLA Rules applies to any “employment case,” which is

defined as “a dispute between an organization and an individual arising out

of . . . the course of, or the termination of an employment relationship.”

AHLA Rule 10.2.7 In an employment case subject to a mandatory arbitration

clause, the AHLA Rules provide:


____________________________________________


       6
         The Agreement states that the arbitration shall be governed by the
AHLA Rules “then in effect.” Agmt. ¶ 16. Here, the record contains a
portion of the 1991 AHLA Rules, which were revised in May 2012. See
Jefferson’s Reply Mem. of Law, 7/20/15, Ex. 2. However, we take judicial
notice of the fact that the AHLA Rules were subsequently revised, effective
April 7, 2014, which pre-dated the parties’ August 1, 2014 Agreement. See
AHLA       Rules      (eff.    April      7,     2014),      available     at
https://www.healthlawyers.org/dr/SiteAssets/Lists/drsaccordion/EditForm/R
ules%20Effective%20April%207.pdf. Therefore, because the 2014 AHLA
Rules would apply to the instant arbitration, we cite the 2014 version of the
Rules above.

(Footnote Continued Next Page)


                                          - 10 -
J-A31023-16


          The arbitrator must disregard any contract provision
          that purports to limit the employee’s statutory rights
          or remedies, including, but not limited to, any increase in
          the burden of proof required to prove liability or any cap
          lower than the applicable statutory cap on the recovery of
          damages, attorneys’ fees, or costs.

AHLA Rule 10.5(d) (emphasis added).              Moreover, with regard to fees, the

AHLA Rules state that “[r]egardless of any contract that states otherwise,

the employer will pay the arbitrator’s fees and expenses” unless the

employee volunteers to pay or the arbitrator concludes that the employee’s

claim is frivolous. AHLA Rule 10.5(a) (emphasis added). Thus, the record

does not support Saltzman’s claim that arbitration would limit her potential

remedies under the Whistleblower Law.

      In any event, the “effective vindication of statutory rights exception”

to arbitration does not apply to Saltzman’s state statutory claims. The cases

on which Saltzman relies to support her argument involved federal, not

state, statutory rights.      See, e.g., Paladino v. Avnet Computer Techs.,

134 F.3d 1054 (11th Cir. 1998) (involving Title VII claim); Underwood v.

Chef Fransico/Heinz, 200 F.Supp.2d 475 (E.D. Pa. 2002) (involving Title

VII claim).   Moreover, as the United States District Court for the Eastern


                       _______________________
(Footnote Continued)
      7
        In its brief, Jefferson relies on the prior version of the AHLA Rules,
which provided: “In a claim arising out of or related to employment or
termination of employment [like Saltzman’s alleged claims here], the
arbitrator may grant any applicable statutory remedies and damages
available.” Jefferson’s Br. at 40 (alteration in original) (quoting former AHLA
Rule 6.06).



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J-A31023-16



District of Pennsylvania explained in Torres v. CleanNet U.S.A., Inc., 90

F.Supp.3d 369, 377-78 (E.D. Pa. 2015):
           Recent Supreme Court cases confirm that there is
        absolutely no rule that prevents arbitration when a person
        cannot effectively vindicate his or her state statutory
        rights. . . . Most recently, in [American Express Co. v.
        Italian Colors Restaurant, 133 S.Ct. 2304, 2310–11
        (2013)], the [United States] Supreme Court explained that
        the effective vindication rule only applies to prevent
        arbitration of a federal statute in the limited circumstance
        where an arbitration agreement prohibits the assertion of a
        federal statutory right and “would perhaps [apply to] filing
        and administrative fees attached to arbitration that are so
        high as to make access to the forum impracticable.” 133
        S.Ct. at 2310-11. . . .

                                    ...

           Because the effective vindication rule does not apply to
        state statutes, Torres cannot prevail on his argument that
        the arbitration agreement is unenforceable because it
        prevents him from effectively vindicating his state
        statutory rights.

     Similarly, in Provenzano, this Court rejected the plaintiff’s claim that

an arbitration agreement was unenforceable because it contravened his

rights under Pennsylvania’s Wage Payment and Collection Law (“WPCL”).

121 A.3d at 1103. We explained: “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.” Id.

     Nor is there support for Saltzman’s argument that arbitration would

contravene a statutory right to pursue her claims in a court of law. Section

1424(a) of the Whistleblower Law provides that a plaintiff “may bring a civil

action in a court of competent jurisdiction.”   43 P.S. § 1424(a) (emphasis


                                   - 12 -
J-A31023-16



added).    In Provenzano, our Court interpreted identical language in the

WPCL and concluded that such language is “permissive, not mandatory” and,

thus, the WPCL does not give a plaintiff an “absolute right to sue in the

judicial forum” or to “exclusive judicial oversight.”        121 A.3d 1101; see

Tripp v. Renaissance Advantage Charter Sch., 2003 WL 22519433, at

*11 (E.D. Pa. 2003) (holding that use of the term “court” in section 1424(a)

of Whistleblower Law does not indicate legislature’s intent to exclude such

claims from arbitration); see also Bensinger v. Univ. of Pittsburgh Med.

Ctr., 98 A.3d 672, 677-78 (Pa.Super. 2014) (recognizing that there is no

statutory right to jury trial under Whistleblower Law).

                B. The Arbitration Clause and Public Policy

      Next, Jefferson contends that the trial court abused its discretion in

concluding that enforcement of the arbitration provision in this case would

violate public policy.      Saltzman argues, and the trial court agreed, that

“arbitration   of   [her]    Whistleblower   claim   would    run   afoul   of   the

Commonwealth’s strong public policy in favor of allowing its citizens to make

safe, informed decisions regarding medical service providers by granting

access to information regarding medical practitioners.” Saltzman’s Br. at 13.

In concluding that arbitration of Saltzman’s claims would violate public

policy, the trial court focused exclusively on the “nature” of Saltzman’s

allegations:
          [Saltzman] levels very serious allegations of misconduct
          against [Jefferson].    By their very nature, these
          proceedings should not be shielded from public view by an


                                      - 13 -
J-A31023-16


           arbitration clause. The citizens of the Commonwealth of
           Pennsylvania, and the public at large, have an interest in
           the public resolution of this litigation.     Compelling
           arbitration in this matter would be fundamentally
           incompatible with the remedial and deterrent functions of
           the [Whistleblower Law].

1925(a) Op. at 5.         While we agree that Saltzman’s allegations against

Jefferson, if proven, could be of important public interest, we do not agree

that Saltzman’s claims are exempt from arbitration for that reason.

       A court may refuse to enforce a contract that violates public policy.

Fields v. Thompson Printing Co., 363 F.3d 259, 268 (3d Cir. 2004).

“Such a public policy, however, must be well-defined and dominant, and is

to be ascertained ‘by reference to the laws and legal precedents and not

from general considerations of supposed public interests.’”      Id. (quoting

W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983)).

       The Whistleblower Law is “chiefly a remedial measure intended to

enhance openness in government and compel the government’s compliance

with the law by protecting those who inform authorities of wrongdoing.”

O'Rourke v. Commonwealth of Pennsylvania, Dep’t of Corrections,

778 A.2d 1194, 1202 (Pa. 2001) (internal quotation omitted). 8 The Law “is
____________________________________________


       8
         Section 1422 of the Whistleblower Law defines an “employer” as “[a]
person supervising one or more employees, including the employee in
question; a superior of that supervisor; or an agent of a public body.” 43
P.S. § 1422. A “public body” includes any body that is created by the
Commonwealth or “funded in any amount by or through Commonwealth or
political subdivision authority or a member or employee of that body.” Id.
This Court has held that an entity that receives Medicaid funding is a “public
body” for purposes of the Whistleblower Law. Denton v. Silver Stream
(Footnote Continued Next Page)


                                          - 14 -
J-A31023-16



specifically designed to protect employees from adverse employment actions

when making a good faith report regarding an instance of wrongdoing or

waste.”      Pa. Game Comm'n v. State Civ. Serv. Comm'n (Toth), 747

A.2d 887, 892 n.10 (Pa. 2000).

      In her brief, Saltzman appears to advocate a blanket prohibition on the

arbitration of whistleblower claims.             We can find no support for such a

prohibition in the law.         It is well settled that contracting parties must

“proceed to arbitration on issues subject to a valid arbitration agreement,

even if a state law would otherwise exclude it from arbitration.” Taylor, 147

A.3d at 509; see also Kindred Nursing, 137 S.Ct. at 1426 (“The FAA . . .

preempts any state rule discriminating on its face against arbitration – for

example, a ‘law prohibit[ing] outright the arbitration of a particular type of

claim.’”).     “The only exception” to a state’s obligation to enforce an

arbitration agreement is where an applicable contract defense, such as

fraud, duress, or unconscionability, is proven.           Taylor, 147 A.2d at 509.

Here, however, Saltzman does not seek to invalidate the arbitration

provision based on fraud, duress, or unconscionability. See supra at 7-8.

                       _______________________
(Footnote Continued)

Nursing and Rehab. Ctr., 739 A.2d 571, 576 (Pa.Super. 1999) (“The plain
meaning of the language of [section 1422] makes it clear that it was
intended to apply to all agencies that receive public monies under the
administration of the Commonwealth.”). In her complaint, Saltzman averred
that Jefferson receives funds from the Commonwealth through its
participation in Pennsylvania’s Medicaid program and is, therefore, an
“employer” within the meaning of the Whistleblower Law. Compl. ¶¶ 6-8.



                                           - 15 -
J-A31023-16



      In its opinion, the trial court emphasized the public’s need to be privy

to the disposition of Saltzman’s whistleblower claims because Jefferson

provides medical services to the public.     1925(a) Op. at 5.      However,

litigation in a public forum is not required in order to preserve the remedial

and deterrent functions of the Whistleblower Law.       If Saltzman were to

prevail on her claims – whether in arbitration or in a judicial forum –

Jefferson would suffer significant adverse legal consequences. In rejecting a

plaintiff’s contention that her Whistleblower Law claim was not subject to the

arbitration provision in her employment contract, the federal court in Tripp

explained:
         [C]oncern for statutorily protected classes provides no
         reason to color the lens through which the arbitration
         clause is read. By agreeing to arbitrate a statutory
         claim, a party does not forgo the substantive rights
         afforded by the statute; it only submits to their
         resolution in an arbitral, rather than a judicial,
         forum.     It trades the procedures and opportunity for
         review of the courtroom for the simplicity, informality, and
         expedition of arbitration.

2003 WL 22519433, at *11 (quoting Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)) (emphasis added).

      Here, by refusing to enforce the arbitration agreement based solely on

the “nature” of Saltzman’s claims, the trial court failed to apply the liberal

policy favoring arbitration under both federal and Pennsylvania law.     See

Provenzano, 121 A.3d at 1101-03 (rejecting plaintiff’s argument that WPCL

outweighed policy favoring arbitration where she failed to prove legislative

intent to exclude such claims from arbitration).    Our Supreme Court has

                                    - 16 -
J-A31023-16



stated:      “Where the parties by contract contemplate the settlement of

disputes by arbitration, every reasonable intendment will be made in favor

of the agreement[.] The public policy of this State is to give effect to

arbitration agreements.”           Capecci v. Joseph Capecci, Inc., 139 A.2d

563, 565 (Pa. 1958) (emphasis added; internal citation omitted). We agree

with Jefferson that the strong public policy favoring arbitration agreements

outweighs the general public’s purported interest in hearing the disposition

of Saltzman’s claims.9

       For these reasons, we conclude that the trial court abused its

discretion in concluding that the parties’ arbitration agreement is invalid and

unenforceable.

           II. Whether Saltzman’s Claims Are Within the Scope of the
                             Arbitration Provision

       Having determined that the parties entered into a valid, enforceable

arbitration agreement, we turn next to the question whether Saltzman’s

claims fall within the scope of the arbitration provision. The trial court did

not reach this question because it concluded that the parties’ arbitration

agreement was unenforceable.              However, we may consider this issue

because whether a dispute falls within the scope of an arbitration clause is a

question of law for which our scope of review is plenary. See supra at 6.
____________________________________________


       9
        We further note that nothing in the parties’ Agreement precludes
Saltzman from reporting Jefferson’s alleged misconduct to state regulatory
authorities or even the press.



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      To determine whether a plaintiff’s claims fall within the scope of an

arbitration clause, we must consider “the factual underpinnings of the claim

rather than the legal theory alleged in the complaint.” Medtronic AVE, Inc.

v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 (3d Cir. 2001);

see Callan, 858 A.2d at 1233 (stating that “a claim’s substance, not its

styling,     controls   whether   the   complaining   party   must    proceed   to

arbitration”). This Court has explained:
              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.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.”

Provenzano, 121 A.3d at 1096 (quoting E.M. Diagnostic Sys., Inc. v.

Local 169, 812 F.2d 91, 95 (3d Cir. 1987)) (emphasis added; alterations in

original).

      Here, the Agreement states that the arbitration provision applies to

“any controversy or claim between the parties hereto arising under or

related to this Agreement or any breach thereof.”         Agmt. ¶ 16.    Jefferson

asserts that this broad language encompasses all claims relating to or


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arising from the parties’ contractual relationship, not just claims arising from

an alleged breach of the Agreement. We agree.

      In Tripp, the United States District Court for the Eastern District of

Pennsylvania considered whether the plaintiff’s Whistleblower Law claims fell

within the scope of an arbitration clause in her employment contract, which

provided that “[a]ll disputes arising out of or concerning this Agreement”

were subject to binding arbitration. 2003 WL 22519433, at *3. The court

concluded that the Whistleblower Law claims were subject to arbitration

because they necessarily “concern[ed the plaintiff’s] employment” and there

was “no evidence that the Pennsylvania legislature intended such claims to

be resolved exclusively in the judicial forum.”          Id. at *11; see also

Provenzano, 121 A.3d at 1102-03 (holding that plaintiff’s WPCL claim was

within scope of arbitration provision, where “claim arose out of the alleged

breach of the employment contract, [was] wholly dependent on the contract,

and [the plaintiff could not] make out his WPCL claim without reference to

the employment contract”).

      Moreover, the United States Court of Appeals for the Third Circuit has

held that “when phrases such as ‘arising under’ and ‘arising out of’ appear in

arbitration   provisions,   they   are    normally   given   broad   construction.”

Battaglia v. McKendry, 233 F.3d 720, 727 (3d Cir. 2000); cf. Smay, 864

A.2d at 1274 (“[W]here an arbitration clause is unrestricted, the parties to

the contract could be compelled to arbitrate any claim that implicates a

contractual obligation.”). Therefore, because the arbitration provision in this

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J-A31023-16



case states that it applies to “any” dispute “arising under or related to” the

Agreement, we conclude that it encompasses all disputes relating to the

parties’ contractual relationship.

      We further reject Saltzman’s contention that because her statutory

claims sound in tort, not contract, they are not subject to arbitration.

Saltzman relies on Hazleton Area School District v. Bosak, 671 A.2d

277, 283 (Pa.Cmwlth. 1996), in which the Commonwealth Court affirmed

the denial of a motion to compel arbitration on the ground that the

arbitration clauses at issue did not encompass tort claims. The arbitration

clauses in Hazleton provided that “[c]laims, disputes or other matters in

question between the parties to this Agreement arising out of or relating to

this Agreement or breach thereof shall be subject to and decided by

arbitration” and “any dispute concerning the subject matter of this

AGREEMENT . . . between the parties hereto, . . . shall be settled in

accordance    with    the   American     Arbitration   Association’s   Rules   and

Regulations.” Id. at 279 (quoting record).

      Relying on the Pennsylvania Supreme Court’s decision in Muhlenberg

Township     School    District      Authority   v.    Pennsylvania    Fortunato

Construction Co., 333 A.2d 184 (Pa. 1975), the Commonwealth Court

concluded that the arbitration clauses did not manifest the parties’ intent to

arbitrate a tort claim for negligent performance of the contract. Id. at 282.

The Court reasoned that if the parties had intended to arbitrate tort claims,




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J-A31023-16



they would have included specific language demonstrating that intent. Id.

at 282-83.

      This Court, however, has expressly disapproved of the Commonwealth

Court’s reasoning in Hazleton. In Smay, the defendant sought to compel

arbitration of the plaintiffs’ contract indemnification claim, but we also

addressed, in dicta, whether the underlying personal injury claim was

subject to arbitration. This Court stated:
            We believe that the Hazleton Court misconstrued our
         Supreme Court’s holding in Muhlenberg Township. The
         arbitration clauses at issue in Muhlenberg Township
         referenced tortious conduct as follows:

              Should either party to this Contract suffer damage
              in any manner because of any wrongful act or
              neglect of the other party or of anyone employed
              by him, then he shall be reimbursed by the other
              party for such damages. 2. Claims under this
              clause shall be . . . [] adjusted by agreement or
              arbitration.

         The Supreme Court concluded that the phrase “suffer
         damage in any manner” in the arbitration clause was all-
         inclusive and extended to the Township’s claims against
         the contractor for faulty materials and workmanship.

            Relying on Muhlenberg Township, the Hazleton
         Court concluded that since the arbitration clause implicated
         therein did not expressly and specifically include an action
         in tort for negligence, the appellant’s claim for negligent
         performance fell outside the scope of the agreement.
         However, contrary to the Hazleton Court’s reading of
         Muhlenberg Township, the Supreme Court did not
         address the scope of the arbitration agreement in relation
         to a tort claim. In reality, the relevant issue before the
         Supreme Court was whether the agreement extended to
         claims for faulty work or faulty materials. Thus, despite
         our sister court’s characterization, Muhlenberg Township
         does not stand for the proposition that an agreement to

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J-A31023-16


         arbitrate must specifically reference tortious conduct in
         order for the agreement to apply to disputes arising under
         the contract which sound in tort. We are loathe to cement
         the    Commonwealth      Court’s   reasoning    into   our
         jurisprudence.

            As discussed supra, the instant arbitration clause is
         written to encompass “Any controversy or Claim arising
         out of or related to the Contract[,]” and by its own terms
         the clause must be read broadly to include all claims
         arising from the contract regardless of whether the
         claim sounds in tort or contract.

Smay, 864 A.2d at 1275-76 (emphasis added; internal citation omitted;

some alterations in original). Therefore, we concluded that the underlying

negligence claim would be subject to arbitration. Id. at 1276.

      Although our analysis of the tort claim in Smay was dicta, Smay’s

reasoning is consistent with prior Superior Court precedent. This Court has

consistently compelled the arbitration of tort claims arising from a

contractual relationship where the language of the arbitration clause is broad

and unlimited. See, e.g., Callan, 858 A.2d at 1234 (holding that tort claim

arising from real estate sales contract was subject to arbitration); Warwick

Twp. Water and Sewer Auth. v. Boucher & James, Inc., 851 A.2d 953,

958 (Pa.Super. 2004) (“[G]iven the broad scope of the arbitration language

which provides that arbitration is to be the preferred means to resolve all

claims arising out of or relating to the contract documents, it was improper

for the trial court to rule that the arbitration provision does not apply to the

negligence claim.”); Pittsburgh Logistics Sys., Inc. v. Prof’l Transp. and

Logistics, Inc., 803 A.2d 776, 779 (Pa.Super. 2002) (holding that tort



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J-A31023-16



action for misappropriation of trade secrets, breach of common law fiduciary

duties, and interference with contractual relationship was within the scope of

parties’ broad arbitration agreement).

        Here, the arbitration provision, which applies to “any controversy or

claim    between   the   parties   hereto   arising   under   or   related   to   this

Agreement,” Agmt. ¶ 16, is broadly worded, and there is no evidence

demonstrating the parties’ intent to exclude tort claims arising from or

related to the Agreement.      See Provenzano, 121 A.3d at 1096 (absent

express provision excluding particular dispute from arbitration, “only the

most forceful evidence of a purpose to exclude the claim from arbitration can

prevail”) (quoting E.M. Diagnostic, 812 F.2d at 95); Callan, 858 A.2d at

1233 (“[E]very reasonable effort should be made to favor [an arbitration]

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.”).

        Accordingly, we conclude that the trial court abused its discretion in

overruling Jefferson’s preliminary objections seeking to compel arbitration.

        Order reversed. Case remanded. Jurisdiction relinquished.




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J-A31023-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2017




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