McCrossin, J. v. Comcast Spectacor

J-A28042-23

2024 PA Super 18

JAMES M. MCCROSSIN AND ROBYN : IN THE SUPERIOR COURT OF

K. MCCROSSIN, H/W AND : PENNSYLVANIA

SALVATORE P. RAFFA AND HOLLY E. :

RAFFA, H/W :

:

:

v. :

:

: No. 887 EDA 2023

COMCAST SPECTACOR, LLC, FPS :

RINK, LP, AND ABC COMPANIES :

:

:

APPEAL OF: COMCAST SPECTACOR, :

LLC AND FPS RINK, LP :

Appeal from the Order Entered March 7, 2023

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): 220400997

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

OPINION BY COLINS, J.: FILED FEBRUARY 6, 2024

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,

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* Retired Senior Judge assigned to the Superior Court.

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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

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1 Plaintiffs originally named a number of other entities as defendants but

discontinued their claims against all of those other entities, except for the

fictitious defendants “ABC Companies,” by stipulation. The complaint defines

“ABC Companies” as entities whose names are unknown to Plaintiffs that are

“partnerships, proprietorships, and/or corporations who owned and/or

controlled [the Flyers Training Center], and/or engaged in emitting, creating,

dispensing, using, handling, transporting, storing, transferring, dispensing,

distributing, and/or permitting exposure to, benzene, or other carcinogens, at

[the Flyers Training Center].” First Amended Complaint ¶7. No claim against

the fictitious ABC Companies defendants is at issue in this appeal.

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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 Raffa 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

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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 an alleged 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.

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2 Whether the claim is arbitrated through AAA or JAMS is determined by the

state where the claimant was employed and in this case the arbitration would

be through JAMS. Comcast Solutions Program Guide at 7-8 & n.1.

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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 2-3. 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

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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

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3 In their preliminary objections, Defendants also moved to strike paragraphs

66 and 67 of Plaintiffs’ complaint. The trial court’s overruling of that

preliminary objection is not at issue in this appeal, although, as discussed

below, the allegations in those paragraphs affect whether McCrossin’s claims

are within the scope of the arbitration agreement.

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to the employment agreements. Trial Court Opinion at 5-7. Defendants filed

a timely notice of appeal from this order.

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 includes some pre-arbitration

settlement procedures. Waters v. Express Container Services of

Pittsburgh, LLC, 284 A.3d 1217, 1220, 1221 n.1 (Pa. Super. 2022) (denial

of arbitration was appealable as of right even though parties’ agreement

required pre-arbitration good faith negotiations); Fineman, Krekstein &

Harris, P.C. v. Perr, 278 A.3d 385, 387-89 (Pa. Super. 2022) (denial of

arbitration was appealable as of right even though parties’ agreement required

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pre-arbitration mediation); TTSP Corp. v. Rose Corp., 217 A.3d 1269, 1272-

73, 1278-79 (Pa. Super. 2019) (denial of arbitration was appealable as of right

even though parties’ agreement required attempt to resolve dispute amicably

before arbitration).

The dispute resolution provisions at issue here are plainly arbitration

agreements. Paragraph 12 of Husband Plaintiffs’ employment agreements

requires that the parties resolve disputes under the Comcast Solutions

Program. McCrossin Employment Agreement ¶12; Raffa Employment

Agreement ¶12. The Comcast Solutions Program requires binding arbitration

to resolve all disputes that are not settled by agreement of the parties.

Comcast Solutions Program Guide at 5-10. Although it permits settlement of

claims by two other means prior to resort to arbitration, the Comcast Solutions

Program does not even require the parties to go through those steps prior to

arbitration. Id. at 5-7. Instead, it specifically provides:

The first two steps of the Comcast Solutions process, however,

are not a mandatory prerequisite before moving to arbitration.

Either party may request to skip Step 1 [review] and/or Step 2

[mediation] of the process and proceed directly to the next step.

Id. at 5. The trial court’s order overruling Defendants’ preliminary objections

that Plaintiffs’ claims must be resolved under the Comcast Solutions Program

is therefore appealable as of right, and this appeal is properly before us.4

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4 The fact that Defendants sought dismissal of the complaint in their

preliminary objections does not defeat jurisdiction. An order overruling a

(Footnote Continued Next Page)

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Defendants raise the following single issue in this appeal:

Whether the trial court erred and abused its discretion in

overruling preliminary objections to compel arbitration, where

Plaintiffs' claims are subject to valid agreements to arbitrate

contained within employment agreements and other documents

referenced and incorporated therein, and the claims asserted are

all covered claims that fall within the scope of the arbitration

agreements?

Appellants’ Brief at 5. That issue presents questions of law subject to this

Court’s plenary review. Estate of Atkinson, 231 A.3d at 898 (whether a

written contract includes an arbitration agreement and whether the parties’

dispute is within the scope of the arbitration agreement are questions of law).

Pennsylvania and federal law both impose a strong public policy in favor

of enforcing arbitration agreements. Marmet Health Care Center, Inc. v.

Brown, 565 U.S. 530, 532-33 (2012); Moses H. Cone Memorial Hospital

v. Mercury Construction Corp., 460 U.S. 1, 24 (1983); Estate of

Atkinson, 231 A.3d at 898; Saltzman v. Thomas Jefferson University

Hospitals, Inc., 166 A.3d 465, 471 (Pa. Super. 2017). If a valid agreement

to arbitrate exists and the dispute falls within the scope of that arbitration

agreement, the dispute must be submitted to arbitration. Estate of

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preliminary objection that a claim cannot be litigated in court because it is

subject to an arbitration agreement is appealable as of right even if the

defendant did not request an order compelling arbitration. Waters, 284 A.3d

at 1221 & n.1 (court had jurisdiction even though defendant’s preliminary

objections sought only dismissal of plaintiff’s claims). Defendants’ preliminary

objections asserted that Plaintiffs’ claims cannot be litigated in court because

they are subject to the Comcast Solutions Program arbitration agreement.

Preliminary Objections to Amended Complaint ¶¶32-73.

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Atkinson, 231 A.3d at 898; Saltzman, 166 A.3d at 472; Provenzano, 121

A.3d at 1094.

There is no dispute here that Husband Plaintiffs entered into valid

agreements to arbitrate. Husband Plaintiffs signed employment agreements

that required that certain disputes be resolved through the Comcast Solutions

Program as set forth in the Comcast Solutions Program Guide, which requires

binding arbitration. McCrossin Employment Agreement ¶12; Raffa

Employment Agreement ¶12; Comcast Solutions Program Guide at 5-10. The

Comcast Solutions Program and Comcast Solutions Program Guide are part of

Husband Plaintiffs’ employment agreements to the extent that Paragraph 12

of the employment agreements requires compliance with the Comcast

Solutions Program with respect to a dispute. The terms of a contract include

both terms in the contract document signed by the parties and terms in

documents that the signed contract specifically identifies and incorporates.

Estate of Atkinson, 231 A.3d at 898-99 (party who agreed in contract that

he signed to be bound by the terms and conditions in other document was

bound by arbitration agreement in that other document that was incorporated

by reference in the signed contract); Southwestern Energy Production,

Co. v. Forest Resources, LLC, 83 A.3d 177, 187-88 (Pa. Super. 2013)

(terms in separate documents incorporated by reference in a written contract

constitute terms of that contract). Plaintiffs do not contend, and the trial court

did not find that the arbitration agreement set forth in the employment

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agreements and the Comcast Solutions Program Guide is unconscionable or

invalid.

The fact that Defendants are not parties to the contracts that Husband

Plaintiffs signed does not bar them from enforcing the arbitration agreements.

Generally, only parties to an arbitration agreement can be compelled to

arbitrate a dispute. Humphrey v. GlaxoSmithKline PLC, 263 A.3d 8, 14

(Pa. Super. 2021); Civan v. Windermere Farms, Inc., 180 A.3d 489, 494-

95 (Pa. Super. 2018); Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa. Super. 2012).

Defendants, however, are seeking to compel arbitration, and Husband

Plaintiffs, who would be compelled to arbitrate, signed the arbitration

agreement.

A non-party that is not referenced in an arbitration agreement cannot

compel arbitration of claims unconnected to the contract that contains the

arbitration agreement. Elwyn, 48 A.3d at 462-64; Gallagher v. Hearthside

Realty, Inc., No. 3699 EDA 2018, slip op. at 5-8 (Pa. Super. Sept. 9, 2019).

However, non-parties, such as affiliates or agents of a party to the contract,

that have an obvious and close nexus to the contract or contracting parties

can enforce an arbitration agreement. Saltzman, 166 A.3d at 468-69 & n.2;

Provenzano, 121 A.3d at 1097, 1103; Dodds v. Pulte Home Corp., 909

A.2d 348, 351 (Pa. Super. 2006). In addition, non-parties that the parties

intend to include in the arbitration agreement can compel arbitration. Dodds,

909 A.2d at 351.

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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.” Comcast

Solutions Program Guide at 2. 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, 715 A.2d 1075, 1079–1080 (Pa. 1998); Pisano v.

Extendicare Homes, Inc., 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

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at issue here, and the trial court’s order must be affirmed with respect to Wife

Plaintiffs claims on that ground.5

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., 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.

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5 Although the trial court did not base its denial of arbitration on this basis,

we may affirm a trial court on grounds different than those on which it based

its decision. Livingston v. Greyhound Lines Inc., 208 A.3d 1122, 1135 n.8

(Pa. Super. 2019); In re Estate of Rood, 121 A.3d 1104, 1105 n.1 (Pa.

Super. 2015).

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If the parties’ contract contains an arbitration clause requiring

arbitration of any claims arising out of or relating to their contract, a claim

that arises out of the parties’ contractual relationship must be arbitrated, even

if it is a tort or other non-contract cause of action and is not based on any

breach of the contract’s terms. Waters, 284 A.3d at 1222-25 (personal injury

claim for accident while plaintiff was performing work for defendant as an

independent contractor was within scope of provision requiring arbitration of

any claim that “arises out of or relates to ... operations pursuant to” the

parties’ contract); Saltzman, 166 A.3d at 469, 476-78 (whistleblower claim

and tort claim for wrongful discharge were within scope of arbitration

agreement in employment contract, “because the arbitration provision in this

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”); Pittsburgh Logistics Systems, Inc. v.

Professional Transportation and Logistics, Inc., 803 A.2d 776, 779-82

(Pa. Super. 2002) (claims of interference with prospective contract with a third

party, breach of fiduciary duty, and misappropriation of trade secrets were

within arbitration clause because they arose out of the parties’ contractual

relationship). “[W]here 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

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claim from arbitration can prevail.’” Waters, 284 A.3d at 1223 (quoting

Provenzano).

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. McCrossin Employment Agreement ¶12

(unnecessary capitalization omitted); Raffa Employment Agreement ¶12

(unnecessary capitalization omitted); Comcast Solutions Program Guide at 2-

3. 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.

Defendants are not Husband Plaintiffs’ employer. Plaintiffs, however,

allege that that the injuries that Husband Plaintiffs suffered were caused by

exposure to chemicals in their employment and at their place of employment.

First Amended Complaint ¶¶19, 41-46, 54, 57-59. The complaint also asserts

claims that the Husband Plaintiffs’ workplace was unsafe and that Defendants

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are liable on the ground that they created an unsafe work environment. Id.

¶¶21, 69(c), (g), (h), (l), (m). All of the claims here therefore arise out of

Husband Plaintiffs’ employment.

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. Plaintiffs’ allegations in support of these claims

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allege that Defendants committed the conduct on which the chemical exposure

claims are based and do not allege Defendants directed actions of the Flyers

that caused the chemical exposure or that the Flyers owned the Zamboni

machines that emitted the chemicals. First Amended Complaint ¶¶21, 26, 29,

47-56, 59, 64-65, 69-70, 73-82. Those claims are therefore not within the

scope of the provision in Husband Plaintiffs’ employment agreements in which

they agreed that claims between them and the Flyers arising out of their

employment would be subject to arbitration under the Comcast Solutions

Program. Because 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. In

paragraph 66 and 67 of the complaint, McCrossin alleges that the Flyers took

adverse employment action against him, that Defendants “directed,

instructed, influenced, and/or persuaded” the Flyers to take these actions in

retaliation for this lawsuit, and that Defendants are liable for harm inflicted on

McCrossin by the Flyers’ employment actions. First Amended Complaint ¶¶66-

67. 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

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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.

Date: 2/6/2024

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