McCrossin v. Comcast Spectacor

311 A.3d 1115

James M. MCCROSSIN and Robyn K. McCrossin, H/W and Salvatore P. Raffa and Holly E. Raffa, H/W

v.COMCAST SPECTACOR, LLC, FPS Rink, LP, and ABC Companies

Appeal of: Comcast Spectacor, LLC and FPS Rink, LP

No. 887 EDA 2023

Superior Court of Pennsylvania.

Argued December 14, 2023

Filed February 6, 2024

Reargument Denied April 15, 2024

Appeal from the Order Entered March 7, 2023, In the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 220400997, Vincent L. Johnson, J.

Jared D. Bayer, Philadelphia, for appellant.

Charles L. Becker, Philadelphia, for appellee.

BEFORE: OLSON, J., STABILE, J., and COLINS, J.^*

OPINION BY 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. First Amended Complaint ¶¶19, 21, 29-46, 57-59, 62-65.¹ Comcast Spectacor is a wholly-owned subsidiary of a wholly-owned subsidiary of Comcast Corporation (Comcast). Listino Aff. ¶4. Comcast Spectacor owns 99% of both FPS and the Flyers as the limited partner of those entities, and the one-percent general partners of both FPS and the Flyers are wholly-owned subsidiaries of Comcast Spectacor. Id. ¶¶5-10; see also First Amended Complaint ¶¶14-15 (alleging that Comcast Spectacor owned and controlled FPS).

Plaintiffs allege in their complaint that Defendants owned, possessed, operated, managed, maintained, or controlled the Flyers Training Center and that they are liable for Husband Plaintiffs’ injuries on theories of negligence and strict liability for ultrahazardous activity under Restatement (Second) of Torts §§ 519 and 520. First Amended Complaint ¶¶18, 26, 68-82. Wife Plaintiffs assert claims against Defendants for loss of consortium. Id. ¶¶83-89. Plaintiffs do not name the Flyers as a defendant. McCrossin, however alleges that Defendants, in addition to exposing him to chemicals, caused him emotional distress by causing the Flyers to alter his employment conditions in retaliation for the filing of this lawsuit. First Amended Complaint ¶¶66-67.

Husband Plaintiffs both signed employment agreements with the Flyers. First Amended Complaint ¶19; Defendants’ Preliminary Objections ¶38. The employment agreements define "Club" as the Flyers and "Employee" as McCrossin and Rafia in their respective agreements. McCrossin Employment Agreement at 1; Raffa Employment Agreement at 1. Paragraph 12 of the employment agreements provides in relevant part:

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

A. In consideration of the mutual obligations set forth in this Agreement, the parties agree that they will comply with and be bound by the terms of the Comcast Solutions Early Dispute Resolution Program (the "Comcast Solutions Program") as provided in the Comcast Solutions Program Guide, with respect to any and all Covered Claims that may arise between them, as such term is defined under the Comcast Solutions Program. AS PART OF THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CLUB AND EMPLOYEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER THEY OR THEIR HEIRS, EXECUTORS, ADMINISTRATORS, PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY OR IN A COURT OF LAW OR EQUITY IN ANY LITIGATION OF COVERED CLAIMS BASED ON, ARISING FROM OR RELATING TO THIS AGREEMENT AND/OR EMPLOYEE’S EMPLOYMENT WITH THE CLUB. … The parties’ mutual obligations and agreements under this paragraph and the Comcast Solutions Program shall survive the termination or expiration of this Agreement as well as Employee’s employment with the C[l]ub for any reason.

McCrossin Employment Agreement ¶12 (emphasis in original); Raffa Employment Agreement ¶12 (emphasis in original).

The Comcast Solutions Program requires binding arbitration of all "Covered Claims" unless they are resolved through optional review and mediation procedures. Comcast Solutions Program Guide at 2, 5-10. The arbitration is to be conducted through the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Services (JAMS)² and is "subject to the provisions of the Federal Arbitration Act, 9 U.S.C. §§ 1-14." Comcast Solutions Program Guide at 7-9. The Comcast Solutions Program Guide defines "Covered Claims" as follows:

Claims that are covered under Comcast Solutions ("Claims" or "Covered Claims") include any claims (other than the excluded claims identified below) raised between a Participating Employee and the Company, or the Company’s subsidiaries, affiliates, predecessors, and successor corporations and business entities ("Company Entities"), and their officers, directors, employees, and agents, that involve analleged violation of law (including alleged violations of any federal, state or local statute, regulation or common law), where such alleged violation relates to or arises from the employment relationship. Covered Claims include claims related to or arising from any aspect of the employment relationship, including, without limitation, recruiting and hiring, compensation, terms and conditions of employment, and the termination of the employment relationship.

Id. at 2 (emphasis added). The "Company" is defined as Comcast, Comcast Cable, and their non-NBCUniversal subsidiaries and affiliates that adopt the Comcast Solutions Program. Id. at 1. "Participating employee" is defined as including employees of subsidiaries and affiliates of Comcast that adopted the Comcast Solutions Program who were hired under an employment contract that made participation in the Comcast Solutions Program a condition of their employment. Id. at 1-2.

The Comcast Solutions Program Guide lists as examples of "Covered Claims" discrimination, wage, and whistleblower claims and "[b]reach of contract claims and tort claims, including tortious interference with contract, fraud, fraud in the inducement, negligence and/or any kind of unlawful tortious conduct prohibited under applicable federal, state or local law." Comcast Solutions Program Guide at 2-8. The claims that it excludes from "Covered Claims" are unemployment and workers’ compensation claims, claims under several federal non-personal injury statutes, and "[a]ny claim that is expressly precluded from arbitration by a federal statute or federal regulation." Id. at 3. The Comcast Solutions Program Guide further provides: No Covered Claims between the Participating Employee and the Company may be brought, pursued or litigated, by either the Company or the Participating Employee, in a federal, state or local court of law or equity. By participating in this Program, the Company and Participating Employees specifically agree that, to the maximum extent allowed by governing law, they: (a) waive the right to bring any Covered Claim(s) in a court of law or equity; (b) waive the right to have Covered Claims heard by a court, judge or jury; and (c) waive the right to bring or pursue Covered Claims as a representative or member of a class, collective, or representative action ….

* * *

As part of this Program, both the Company and Participating Employees, specifically and to the fullest extent permitted by governing law, waive their right to have Covered Claims heard in court.

Id. at 3, 9. The Comcast Solutions Program Guide also provides that the arbitration is to be conducted "under the employment claim rules/procedures propounded by" the entity (AAA or JAMS) that is conducting the arbitration. Id. at 8.

Defendants filed preliminary objections seeking dismissal of Plaintiffs’ action in its entirety on the ground that Plaintiffs’ claims must be resolved under the Comcast Solutions Program. Plaintiffs opposed Defendants’ preliminary objections on the grounds that Defendants were not parties to Husband Plaintiffs’ employment agreements and on the ground that their claims were not within the scope of the arbitration agreement. On March 7, 2023, the trial court overruled Defendants’ preliminary objections.³ Trial Court Order, 3/7/23.

The trial court held that Defendants were not entitled to arbitrate Plaintiffs’ claims on the grounds that Defendants were not parties to the employment agreements. Trial Court Opinion at 5-7. Defendants filed a timely notice of appeal from this order.

[1–4] Because it goes to our jurisdiction to decide this appeal, we must first address the issue of whether the trial court’s order is an appealable order. 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, 231 A.3d 891, 897 (Pa. Super. 2020); Provenzano v. Ohio Valley General Hospital, 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., 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...