J-A24019-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JOHN LUFBURROW : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HIGHMARK HEALTH : : Appellant : No. 1429 MDA 2024
Appeal from the Order Entered September 4, 2024 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 2023-06410
BEFORE: DUBOW, J., KUNSELMAN, J., and BECK, J.
MEMORANDUM BY DUBOW, J.: FILED: JANUARY 22, 2026
Appellant, Highmark Health, appeals from the September 4, 2024 order
overruling its preliminary objections and refusing to send this matter to
arbitration.1 Appellant challenges the court’s determination that no arbitration
agreement existed between Appellant and its former employee, Appellee, John
Lufburrow. After careful review, we affirm.
Appellant employed Appellee from May 2017 until January 2023. At the
start of Appellee’s employment, he signed various documents, including an
offer of employment and a restrictive covenant agreement, copies of which
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1 This interlocutory appeal is authorized by Pa.R.A.P. 311(a)(8) (permitting an
interlocutory appeal from any order that is made appealable by statute), and the Uniform Arbitration Act, 42 Pa.C.S. § 7320(a)(1), which provides that an appeal may be taken from “[a] court order denying an application to compel arbitration[.]” J-A24019-25
Appellant stored in its “Workday” electronic human resources system.
Appellant promoted Appellee several times during his employment.
On January 13, 2023, Appellee’s employment with Appellant
terminated. According to Appellee, pursuant to a sales incentive plan
agreement between the parties, Appellee was entitled to payment of certain
wages that he had earned and accrued in the year prior to the end of his
employment but that Appellant had not yet paid him. On April 6, 2023, his
counsel sent a letter to Appellant’s chief operating officer, Karen Hanlon;
Appellant’s executive vice president and chief human resources officer, Larry
Kleinman; and Appellant’s chief legal officer, Carolyn Duronio, requesting that
Appellant pay the outstanding wages in full or Appellee would initiate legal
action.
Appellant’s counsel, Lindsey Kennedy, responded by letter 11 days later
rejecting Appellee’s claim for wages under the sales incentive plan agreement
and reminding Appellee of his obligations under the restrictive covenant
agreement. Ms. Kennedy did not, however, raise the existence of an
arbitration agreement. Exchanges of correspondence between Appellee’s
counsel and Ms. Kennedy ensued, culminating in Appellee’s counsel sending
Ms. Kennedy a draft complaint and outlining Appellee’s intent to file the
complaint if Appellant did not resolve this matter by August 14, 2023.
The parties did not resolve their wage dispute prior to the deadline
established by Appellee. Consequently, on August 16, 2023, Appellee initiated
this action by filing a complaint raising breach of contract, unjust enrichment,
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and promissory estoppel claims and asserting that Appellant violated the
Wage Payment and Collection Law.
On August 29, 2023, Appellant sought, via email to Appellee’s counsel,
an extension of time in which to file an answer to the complaint. Appellee’s
counsel agreed to extend the time for filing an answer to September 19, 2023.
On September 12, 2023, however, Appellant’s counsel notified Appellee’s
counsel for the first time of the purported existence of a mandatory arbitration
agreement (“MAA”) that would require Appellee to submit any claims arising
from his employment with Appellant to arbitration.
Then, on September 19, 2023, rather than file an answer to the
complaint, Appellant filed preliminary objections seeking to transfer this
matter to arbitration asserting that Appellee had agreed, at least twice during
the term of his employment, to submit any controversies arising from his
employment to arbitration when he entered into Appellant’s MAA. In support
of the existence of the MAA, Appellant attached, inter alia, affidavits of its
employees Brenda S. Goodling—an Employee Relations Consultant in
Appellant’s Human Resources Department—and Megan Shusko—Appellant’s
“learning architect.”2 Ms. Gooding and Ms. Shusko explained in their affidavits
that Appellant presented an online course to its employees to train the
employees on the content and effects of the MAA (the “ADR training”).
2 As a member of Appellant’s Instructional Design Team, Ms. Shusko worked
to design and develop instructional materials and training programs for Appellant’s employees and managers. Shusko Affidavit, 9/9/23, at ¶ 4.
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Appellant stated that when an employee completed the ADR training program,
it required the employee to respond to a quiz question and, click “accept” to
indicate that the employee agreed to the terms of the MAA. Preliminary
Objections, 9/19/23, at ¶ 17-18. The program would record the employee’s
participation in the program as “100% completed.” Preliminary Objections,
9/19/23, at ¶¶ 17-18. Appellant represented that, on May 9, 2017, and again
on April 18, 2018, Appellee participated in the online ADR training, responded
to the quiz question, and clicked “accept.” Notably, Appellant did not attach
a copy of the MAA signed by Appellee.
On October 9, 2023, Appellee filed preliminary objections to Appellant’s
preliminary objections, requesting that the trial court strike Appellant’s
preliminary objections on procedural grounds.3 In the alternative, Appellee
denied Appellant’s claim that an agreement to arbitrate existed.
On September 3, 2024, the trial court held a hearing to take evidence
regarding the existence of an arbitration agreement at which Appellee, Ms.
Shusko, and Mary Esgrow—Appellant’s director of employee and labor
relations—testified. Because Appellant could not produce an arbitration
agreement signed by Appellee to prove the existence of a valid arbitration
agreement, the evidence presented at the hearing focused on Appellant
attempting to prove the existence of the agreement by explaining the ____________________________________________
3 In particular, Appellee asserted that the preliminary objections were improper and untimely because Appellee had granted Appellant an extension of time only to file an answer to the complaint, not an extension of time to file preliminary objections.
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processes by which it documents employee participation in its ADR training
program and online acknowledgement of agreement to the MAA.
To this end, Ms. Shusko testified that Appellant had a computer-based
training program to educate its employees about its ADR program. She
testified that in 2017 and 2018, all employees, whether they were new hires
or had moved into new roles, were supposed to take the computer-based
training that culminated in the electronic acceptance of the MAA. She testified
that if an employee did not electronically accept the MAA, the course would
continue to show that the training was “in progress” or “incomplete.” In other
words, completion of the ADR training program required the online
acknowledgement of acceptance of the MAA.
Ms. Shusko testified that at the time Appellee began working for
Appellant, Appellant used software called “SkillPort” to implement the ADR
training. She testified that SkillPort also stored an employee’s ADR program
completion status. She testified that, in approximately 2020, Appellant
stopped using SkillPort to administer its online ADR training program and that
when Appellant’s contract with SkillPort ended, Appellant “had a copy of
training records downloaded from the [Skillport] system into an Excel file.”
N.T. Hr’g, 9/4/24, at 22. She explained that “[t]he records were downloaded
either by someone in our team or by SkillPort and provided to us.” Id. at 23.
She testified that the records are kept by Appellant in the regular course of
business and saved on one of Appellant’s network servers.
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With respect to verifying whether Appellee had completed Appellant’s
online ADR training program and acknowledged acceptance of the MAA, Ms.
Shusko testified that she “went to the location on our network drive where
those files are stored and opened the Excel files.” Id. at 25. She testified
that Appellant maintains, and her current team is the custodian of, those files.
She testified that she reviewed the Excel spreadsheets of the course
completions that were downloaded from SkillPort and they showed that
Appellee had completed the ADR training and acknowledged acceptance of the
MAA in 2017 and 2018.
On cross-examination, Ms. Shusko testified that Appellant stores the
single master Excel spreadsheet with historical records of ADR program
completion from SkillPort on a shared drive. She explained that in order to
prepare Appellant’s exhibits for this litigation showing Appellee’s completion
of the online ADR training program and his acknowledgement of acceptance
of the MAA she copied and pasted the relevant spreadsheet cells from the
master spreadsheet onto a new document. She testified that there were no
security controls in place to stop her from editing the document. She also
testified that she did not know who created the master Excel spreadsheet or
whether the information contained on it was ever verified against the SkillPort
data itself, and there was no security protocol in place to stop anyone from
changing the data within the spreadsheet.
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Appellant then moved for admission of the Excel spreadsheet exhibits.
Appellee’s counsel noted on the record his objection to the court treating the
exhibits as business records.
Ms. Esgro testified that in 2017 and 2018, she worked for Appellant as
an employee relations consultant and, as a result, was familiar with
Appellant’s MAA. She testified that she does not have direct access to an
employee’s historical training record, but if she needed to access it, she would
obtain it from one of the many people who had direct access to it and would
rely on the veracity of the documents provided to her for the truth of the
information in the business record. She confirmed that she had no role in
migrating the data stored by SkillPort to any other system.
Ms. Esgro also testified that Appellant’s human resources department
used an online human resources system called Workday. With respect to
Appellee’s Workday human resources personnel profile, Ms. Esgro testified
that it contained, numerous documents that Appellee had signed, either
physically or electronically, including an at-will employment
acknowledgement, a restrictive covenant agreement, a retention bonus
agreement, and an offer letter. Ms. Esgro agreed that Appellee’s Workday
personnel profile did not include a signed arbitration agreement. She clarified
that, she would not have expected to see such a document in Appellee’s
personnel profile because it is her “understanding that the MAA and the related
training were completed in a separate system outside of Workday during this
period of time.” Id. at 48. She explained that she was aware of a “technical
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limitation when it came to transferring any records of the MAA training and
acknowledgements into the Workday system.” Id.
Ms. Esgro further testified that if an employee did not acknowledge
acceptance of the MAA through SkillPort the employee’s manager would
provide the employee with a “different executed copy of the MAA [] by their
leader” that Appellant would consider binding. Id. Whether the executed
copy provided to the employee by the leader would be recorded “would have
been an interaction between that leader and [the employee].” Id. at 49.
Appellee’s counsel sought to elicit testimony to explain why, if
Appellant’s “sweeping MAA [] applies to all employees[,]” Appellant did not
raise the existence of the MAA until two weeks after Appellee filed his
complaint even though Appellee had notified Appellant months earlier about
a potential lawsuit. Id. In Ms. Esgro’s opinion “knowing that we do have to
check alternative systems for records and where they may be stored, it’s not
surprising [] that we had to go looking in more than one place.” Id. at 49-
50. She testified that locating those records would probably take “a couple of
weeks in general” and that two months “possibly” seemed excessive. Id. at
50.
Appellee also testified at the hearing. He testified that he recalled
signing an offer letter prior to commencing his employment with Appellant,
that he did not recall participating in the ADR training program, and that he
did not sign an MAA. He testified that if he had been told he must sign the
MAA, he would not have signed it, even if he would have lost his job as a
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consequence. Appellee testified unequivocally that if he was subject to an
MAA, he would not have worked for Appellant. When asked by Appellant’s
counsel whether he had any evidence that he did not agree to the MAA,
Appellee testified that he had none “[o]ther than [Appellant’s] lack of
documentation that [he] agreed to a [MAA].” Id. at 57. Appellee testified
that he was “promoted three times in [his] almost six years with [Appellant],
and [he has] no recollection of having to take [the ADR] training at each of
those steps.” Id. at 58-59.
Following the presentation of evidence and brief argument by counsel,
the trial court noted, inter alia, that the court had “some real problems with
[Appellant] not being aware of an MAA for several months. If that was the
company[-]wide policy, you would think legal would know that.” Id. at 62.
Ultimately, the court found Appellant’s witnesses and documentary evidence
not credible or reliable and concluded that Appellant had not met its burden
of proving that Appellee accepted participation in an MAA. The court, thus,
overruled Appellant’s preliminary objections and ordered Appellant to file an
answer.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following five issues on appeal:
1. Did the trial court err and/or abuse its discretion in overruling [Appellant’s] preliminary objections seeking to enforce [the MAA] by finding facts which are not supported by substantial evidence of record?
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2. Did the trial court err and/or abuse its discretion by failing to recognize the valid business record evidencing [Appellee’s] completion of the ADR training and acceptance of the MAA?
3. Did the trial court err and/or abuse its discretion by failing to acknowledge [Appellee’s] clear and consistent testimony that he simply does not recall completing the ADR training or signing the MAA?
4. Did the trial court err and/or abuse its discretion by concluding that [Appellant’s] witnesses lacked credibility because [Appellant] did not immediately notify [Appellee] of the existence of the MAA when it received a demand letter threatening litigation and, instead, waited until after a formal complaint was filed in federal court before raising the issue of arbitration in POs?
5. Did the trial court err and/or abuse its discretion by concluding that [Appellant] did not enter into a voluntary and binding arbitration agreement or waived its right to enforce a valid arbitration agreement because it notified [Appellee] of the existence of the MAA shortly after it requested an extension of time to file a response to the complaint, but weeks before any responsive pleading was filed?
Appellant’s Brief at 3-4 (unnecessary capitalization omitted).4
Appellant’s issues challenge the trial court’s order overruling its
preliminary objections after finding that a valid agreement to arbitrate did not
exist and, therefore, refusing to compel this case to arbitration. In such cases,
our standard of review is as follows:
Our review of a claim that the trial court improperly denied preliminary objections in the nature of a petition 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. We ____________________________________________
4 Appellant has not included in its brief a section of argument corresponding
to questions one and five as required by Pa.R.A.P. 2119(a). We, thus, conclude that Appellant has abandoned those issues and we decline to review them.
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employ a two-part test to determine whether the trial court should have compelled arbitration: (1) whether a valid agreement to arbitrate exists, and (2) whether the dispute is within the scope of the agreement.
Davis v. Ctr. Mgmt. Grp., LLC, 192 A.3d 173, 180 (Pa. Super. 2018)
(internal citations and quotation marks omitted), see also id. at 182
(explaining “the issue of whether a party agreed to arbitrate a dispute is a
threshold, jurisdictional question that must be decided by the [trial] court.”).
A court cannot compel arbitration absent an express agreement to
arbitrate. Bair v. Manor Care of Elizabethtown , PA, LLC., 108 A.3d 94,
96 (Pa. Super. 2015). Appellant bears the burden of establishing the
existence of such an agreement. Id. (citing 42 Pa.C.S. § 7304(a)).
To the extent that factual findings and credibility determinations are at
issue, we will accept the trial court’s conclusions insofar as they are supported
by the record. O.H. Bel Air Paratners LP v. Hinton, 296 A.3d 1173, 1175
(Pa. Super. 2023); see also C.G. v. J.H., 172 A.3d 43, 47, 57 (Pa. Super.
2017) (noting our deference to a trial court’s factual findings where those
findings are required to resolve preliminary objections). It is not the job of
the appellate court to “pass on the credibility of witnesses; hence we will not
substitute our judgment for that of the factfinder.” O.H. Bel Air Paratners,
296 A.3d at 1175 (citation omitted).
In its first issue, Appellant contends that the trial court erred when it
failed to find credible Appellant’s witnesses’ testimony and Excel spreadsheet
purportedly evidencing Appellee’s completion of the ADR training and
acceptance of the MAA. Appellant’s Brief at 41-54. Appellant assails the court
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for declining to infer from its evidence that it has a “comprehensive ADR
program” and that Appellee participated in the program and accepted the MAA
on at least two separate occasions “without proper analysis under
Pennsylvania Rule of Evidence 803(6), which allows for a party to rely on
unauthenticated business records.” Id. at 41-42. Appellant asserts that Ms.
Shusko’s testimony was sufficient to show a valid business record because she
has personal knowledge that the information showing that Appellee
participated in the ADR program was downloaded from Skillport and that the
format of the download used in the ordinary course of business by Appellant
was to an Excel spreadsheet. Id. at 47.
In explaining the reasons it found that Appellant’s documentary
evidence and witness testimony to prove the existence of the MAA was not
reliable, the court noted, among other things, the lack of security protocols in
place to prevent the manipulation of the data contained on the Excel
spreadsheet and Appellant’s delay in notifying Appellee of the existence of the
alleged MAA. Trial Ct. Op., 12/31/24, at 4. Although, as Appellant observes,
the court was also concerned by Ms. Shusko’s inability to “verify that the data
was accurately inputted from [SkillPoint]” as she did not create the records
and to “identify who or what entity created them[,]” the trial court did not
wholesale reject Ms. Shusko’s testimony of the Excel spreadsheets as business
records, rather the court afforded that evidence less weight than Appellant
insists it was due. Our review of the record supports the trial court’s factual
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findings, and we cannot and will not reweigh the court’s credibility
determinations. Accordingly, Appellant is not entitled to relief on this claim.
In its second issue, Appellant claims that the trial court erred in crediting
Appellee’s testimony that he does not remember participating in the ADR
training program or signing an MAA as sufficient to overcome the
“presumption” of a valid MAA. Appellant’s Brief at 55-59. In support of this
claim, Appellant has cited and discussed numerous cases whose authority is
not binding on this Court but cites no cases whose authority is binding.
Our Rules of Appellate Procedure require an appellant to support each
question raised with discussion and analysis of pertinent authority. Eichman
v. McKeon, 824 A.2d 305, 319 (Pa. Super. 2003); Pa.R.A.P. 2119(a). “When
issues are not properly raised and developed in briefs, when the briefs are
wholly inadequate to present specific issues for review, a Court will not
consider the merits thereof.” Branch Banking and Trust v. Gesiorski, 904
A.2d 939, 942-43 (Pa. Super. 2006) (citation omitted).
Our review indicates that Appellant has not properly raised and
developed its argument in support of his claim. We, thus, decline to consider
the merits of this issue.5
5 Even if Appellant had properly developed its argument in support of this claim, it would not entitle Appellant to relief as this claim, is in essence, a challenge to the weight of the evidence in which Appellant asks us to reconsider the court’s determination as to the credibility of Appellee and reweigh the substantial evidence of record. We cannot and will not make credibility determinations or undertake to reweigh the evidence. See O.H. Bel Air Partners, 296 A.3d at 1175.
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In its final issue, Appellant claims the trial court erred in finding that no
MAA existed because Appellant did not invoke its existence when Appellee
initially threatened litigation. Appellant’s Brief at 60-65. Appellant contends
that it was under no obligation to raise the issue of the MAA earlier and its
failure to do so does not constitute a waiver of its right to enforce it. Id. at
62-64.
The trial court’s opinion reflects that the court considered Appellant’s
belated invocation of the purported existence of the MAA as one of many
factors it considered when weighing the evidence and determining whether it
found Appellant’s position persuasive. The court did not, as Appellant
suggests, find that as a matter of law Appellant had waived its right to enforce
the MAA simply because it waited months before asserting that Appellee was
bound by an MAA. Rather, after considering all the evidence presented, the
court opined as follows:
[Appellant] presented testimony from training software/program creators who claimed that [Appellee] would have had to have signed the agreement to complete the training as recorded in their records. However, the witnesses could not verify that the data was accurately inputted from the previous training system as they did not create the records. Nor could they identify who or what entity created them. Furthermore, the records themselves were open to manipulation. Therefore, this testimony was less than persuasive. It was further discounted by the fact that [Appellant] did have electronic records of other agreements that [Appellee] had signed. Those documents had been successfully transferred to the new human resources systems. However, [Appellant] had no record of a signed agreement to arbitrate.
Finally, it is noteworthy that [Appellant] did not immediately raise the existence of an arbitration agreement. It argued that every employee is required to sign such an agreement. However, the
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delay in raising its existence created doubts as to whether every employee actually signs such an agreement. If it were ubiquitous among all employees, [Appellee] would have known to raise it immediately.
[Appellee] also testified that he never agreed to be bound by an agreement to arbitrate. He did not recall any training on the subject. He also testified that had he been presented with such an agreement, he would have found other employment rather than accept it. We found his testimony to be credible.
Trial Ct. Op. at 4-5.
Following our review, we conclude that the substantial evidence of
record supports the trial court’s findings of fact. Appellant once again asks
this Court to reweigh the evidence and substitute our judgment over matters
of credibility and weight of the evidence for that of the trial court. We decline
to do so. Appellant is, therefore, not entitled to relief on this claim.
In sum, having found Appellant’s issues meritless, waived, or
abandoned, we affirm the trial court’s order overruling Appellant’s preliminary
objections.6
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 01/22/2026
6 To the extent that Appellee suggests in his brief that this Court should award
him counsel fees, we decline to do so.
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