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McCrossin v. Comcast Spectacor, LLC, 2024 Pa. Super. LEXIS 33 (February 6, 2024) (Colins, J.).

Appellants, Comcast Spectacor, LLC (Comcast Spectacor) and FPS Rink, L.P. (FPS) (collectively, Defendants), appeal an order of the Court of Common Pleas of Philadelphia County (trial court) overruling their preliminary objections seeking arbitration in a personal injury action brought by two employees of Philadelphia Flyers, L.P. (the Flyers) and the employees’ wives. For the reasons set forth below, we affirm in part and reverse in part. On April 12, 2022, James M. McCrossin (McCrossin) and Salvatore P. Raffa (Raffa) (Husband Plaintiffs) and their wives (Wife Plaintiffs) (collectively, Plaintiffs) brought the instant action against Comcast Spectacor and FPS alleging that Husband Plaintiffs were employed by the Flyers and sustained personal injuries due to exposure to chemicals emitted by Zamboni machines at the Flyers Training Center where they worked.

Husband plaintiffs both signed employment agreements with the Flyers.

The employment agreements define “Club” as the Flyers and “Employee” as McCrossin and Raffa in their respective agreements. Paragraph 12 of the employment agreements provides in relevant part:

Arbitration/Waiver of Right to Trial By Judge Or Jury/Class Action Waiver.

An order overruling preliminary objections that seek to compel arbitration is an interlocutory order appealable as of right under 42 Pa.C.S. § 7320(a)(1) and Pa.R.A.P. 311(a)(8). In re Estate of Atkinson, 2020 PA Super 87, 231 A.3d 891, 897 (Pa. Super. 2020); Provenzano v. Ohio Valley General Hospital, 2015 PA Super 179, 121 A.3d 1085, 1089 n.1 (Pa. Super. 2015). Alternative dispute resolution agreements that merely include arbitration as only one of a number of possible methods of resolving disputes are not arbitration agreements, and denial of enforcement of such dispute resolution agreements is not appealable as of right. Armstrong World Industries, Inc. v. Travelers Indemnity Co., 2015 PA Super 109, 115 A.3d 342, 343-47 (Pa. Super. 2015). Where the parties’ agreement requires arbitration, however, the denial of enforcement is appealable as of right even though the parties’ agreement includes some pre-arbitration settlement procedures.

Here, Defendants are affiliates of the other party to the employment agreements, the Flyers. Moreover, Defendants are expressly included in the arbitration agreement. Paragraph 12 of the employment agreements specifically requires that Husband Plaintiffs arbitrate claims within its scope under the Comcast Solutions Program, and the Comcast Solutions Program applies to claims between them and Comcast “subsidiaries, affiliates, predecessors, and successor corporations and business entities.” The trial court therefore erred in holding that Defendants cannot enforce the arbitration agreements against Husband Plaintiffs.

Wife Plaintiffs, however, did not sign the employment agreements or enter into any agreement to arbitrate and are not seeking to enforce rights under the employment agreements. Their claims for loss of consortium are derivative of Husband Plaintiffs’ injuries but separate from their husbands’ causes of action. Darr Construction Co. v. Workmen’s Compensation Appeal Board, 552 Pa. 400, 715 A.2d 1075, 1079-1080 (Pa. 1998); Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651, 659 (Pa. Super. 2013). Arbitration cannot be compelled against a plaintiff that did not sign an arbitration agreement based on the fact that such a separate claim is derivative of injuries to a party who agreed to arbitration. Pisano, 77 A.3d at 661-63. There is therefore no valid basis to compel Wife Plaintiffs to arbitrate their claims even if Husband Plaintiffs’ claims are within the scope of the arbitration agreements at issue here, and the trial court’s order must be affirmed with respect to Wife Plaintiffs claims on that ground.

Whether the trial court erred in holding that Husband Plaintiffs’ claims are not subject to arbitration under the Comcast Solutions Program turns on whether the claims in the complaint are within the scope of Husband Plaintiffs’ arbitration agreements. Neither the fact that the claims are personal injury claims nor the fact that arbitration would bifurcate Husband Plaintiffs’ claims from Wife Plaintiffs’ claims and require piecemeal litigation in two separate fora is a permissible ground for denying arbitration if Husband Plaintiffs’ claims are within the scope of their arbitration agreements. Marmet Health Care Center, Inc., 565 U.S. at 533-34; Taylor v. Extendicare Health Facilities, Inc., 637 Pa. 163, 147 A.3d 490, 508-10, 512 (Pa. 2016); Waters, 284 A.3d at 1222. Two principles govern the decision whether a claim is within the scope of an arbitration agreement: (1) arbitration agreements must be strictly construed and not extended by implication, and (2) where there is a clear agreement to arbitrate, the arbitration provision should be enforced unless it is not susceptible to an interpretation that covers the claim. Fineman, 278 A.3d at 389; Saltzman, 166 A.3d at 471; Provenzano, 121 A.3d at 1095.

Although the arbitration agreement here is limited to matters connected to Husband Plaintiffs’ employment, its language is broad and is not limited to contractual or employment law rights. The employment agreements and the Comcast Solutions Program Guide that they incorporate state that the agreement to arbitrate applies not only to claims under the employment contract but also to claims “based on, arising from or relating to … Employee’s employment” with the Flyers and to any claim that “relates to or arises from the employment relationship,” and expressly encompass common law negligence and other tort claims.

The Comcast Solutions Program Guide’s inclusion of workers’ compensation claims, which are personal injury claims, in its list of excluded claims, would be superfluous if personal injury claims were incapable of being claims related to employment or the employment relationship.

The employment agreements that Husband Plaintiffs signed, however, do not state that they agree that the Comcast Solutions Program applies to all “Covered Claims” arising out of Husband Plaintiffs’ employment. Rather, the employment agreements provide that Husband Plaintiffs and the Flyers agree to comply with and be bound by the Comcast Solutions Program arbitration agreement only “with respect to any and all Covered Claims that may arise between them.” McCrossin Employment Agreement ¶12 (emphasis added); Raffa Employment Agreement ¶12 (emphasis added). The language in the Comcast Solutions Program that includes affiliates only applies if there is an agreement to be bound by the Comcast Solutions Program with respect to the claim. The language of the employment agreements that Husband Plaintiffs agreed to be bound by the Comcast Solutions Program with respect to claims that arise between them and the Flyers requires that there be some dispute between Husband Plaintiffs and the Flyers or claim by Husband Plaintiffs based on conduct of the Flyers for the Comcast Solutions Program to apply.

Husband Plaintiffs’ claims that Defendants exposed them to chemicals that injured them do not assert any claims against the Flyers and do not on the face of the complaint assert any claims that Defendants’ liability is based on conduct of the Flyers.

Raffa asserts only these claims that Defendants exposed him to chemicals that injured him, the trial court did not err in concluding that Raffa’s claims were not subject to arbitration.

McCrossin, however, has asserted an additional claim against Defendants that is based on a claim of wrongful conduct by the Flyers.

Those claims, because they allege wrongful employment actions by the Flyers and seek to hold Defendants liable for those allegedly wrongful employment actions of the Flyers, necessarily involve a dispute between McCrossin and the Flyers concerning McCrossin’s employment. The trial court therefore erred in holding that none of McCrossin’s claims were within the scope of his arbitration agreement.

For the foregoing reasons, we conclude that Raffa and Wife Plaintiffs are not required to arbitrate any of their claims against Defendants and that McCrossin is not required to arbitrate his chemical exposure claims, but that he is required to arbitrate the claims asserted in paragraphs 66 and 67 of the complaint under the Comcast Solutions Program. Accordingly, we affirm the trial court’s order in all respects other than its denial of arbitration of McCrossin’s claims in paragraphs 66 and 67 of the complaint, reverse its order insofar as it denied arbitration of McCrossin’s claims in paragraphs 66 and 67 of the complaint, and remand with directions that the trial court order McCrossin to resolve the claims that he has pled in paragraphs 66 and 67 of the complaint under the Comcast Solutions Program.

Order affirmed in part and reversed in part. Case remanded for further proceedings. Jurisdiction relinquished.