J-S77043-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

MARPLE-NEWTOWN TAS, INC.,

 Appellee

v.

BROADVIEW NETWORKS, INC.,

 Appellant

:

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2035 EDA 2014

Appeal from the Order Entered June 26, 2014, 

in the Court of Common Pleas of Delaware County, 

Civil Division, at No(s): No. 14-2280 

BEFORE: STABILE, JENKINS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 10, 2015

Broadview Networks, Inc. (Broadview) appeals from the order 

overruling its preliminary objection in the nature of a motion to compel 

arbitration against Marple-Newtown TAS, Inc. (MNTAS). We vacate the 

order of the trial court and remand for proceedings consistent with this 

memorandum.

This case arises from a dispute between MNTAS and Broadview, a 

local, regional and long distance telephone carrier. MNTAS instituted this 

breach of contract action against Broadview before a magisterial district 

judge. MNTAS asserted that “[b]etween June 2009 and the present, 

[Broadview] overcharged [MNTAS] $8,199.46 for services which it did not 

provide to [MNTAS] and for which [MNTAS] paid [Broadview].” Complaint, 
J-S77043-14

- 2 -

4/16/2014, at ¶ 17. Thus, MNTAS requested judgment in its favor for that 

amount plus pre-judgment interest. 

On February 26, 2014, the district judge found in favor of MNTAS; 

Broadview appealed to the Court of Common Pleas of Delaware County; and, 

Broadview ruled MNTAS to file a complaint. MNTAS complied and filed its 

complaint on April 16, 2014. Attached as Exhibit B to the complaint is a 

“New Customer Enrollment Form and Letter of Agency” (Service Agreement) 

dated June 1, 2009. The primary contact on behalf of MNTAS was Joseph 

Stonelake, who signed the forms. Included in that form is a section entitled 

Dispute Resolution, which provided the following.

The parties shall attempt to resolve all disputes in the spirit of 

cooperation without formal proceedings. Any dispute which 

cannot be so resolved (other than the collection of amounts due 

for the Services and requests for injunctive relief) shall be the 

subject of mandatory arbitration. Such arbitration shall be 

conducted in accordance with the U.S. Arbitration Act (Title 9, 

U.S. Code), and under the Commercial Arbitration Rules of the 

American Arbitration Association. The arbitration shall be 

conducted in New York, New York. The decision of the arbitrator 

shall be final and binding upon the parties. Judgment upon the 

arbitration award may be entered in any court of competent 

jurisdiction.

Service Agreement, 6/1/2009, at 2.

Also attached to the complaint are additional forms dated June 2, 2009 

and signed or initialed by Joseph Stonelake. In its complaint, MNTAS 

averred that Joseph Stonelake was employed by MNTAS as a loan processor 

between 2006 and January 2012, and that David V. Gilbert (Gilbert) was and 
J-S77043-14

- 3 -

is the President of MNTAS.1 MNTAS stated that in “February, June, and 

November 2009, Gilbert advised [Broadview’s] representative, Daniel DiOrio 

(“DiOrio”), both orally and in writing that only Gilbert and Victoria Stonelake, 

the Manager, were authorized by [MNTAS] to discuss, negotiate, execute, 

agree to and enter into contracts on behalf of [MNTAS].” Complaint, 

4/16/2014, at ¶ 8. Furthermore, MNTAS averred that “[Broadview] likewise 

knew this fact based upon previous contracts negotiated between DiOrio on 

behalf of [Broadview] and [MNTAS].” Id. Attached to the Complaint as 

Exhibit A were copies of e-mails between Gilbert and DiOrio, with a copy to 

Joseph Stonelake, dated November 16, 2009, providing that “NOTHING IS 

TO BE CHANGED WITHOUT Vick’s [] or my specific authorization[.]” On the 

same day, DiOrio confirmed that “Nothing has been and nothing will[.]” 

On May 5, 2014, Broadview filed a preliminary objection to the 

complaint pursuant to Pa.R.C.P. 1028(a)(6), which provides that a 

preliminary objection may be filed where there is an agreement for 

alternative dispute resolution. It requested the parties be compelled to 

arbitrate this matter pursuant to the aforementioned clause in the Service 

Agreement in light of the fact that MNTAS “utilized the services provided by 

Broadview under the Service Agreement, including the services in dispute 

here, as well as other services, and, with certain lapses, [MNTAS] paid 

 

1

Joseph Stonelake is Gilbert’s grandson.
J-S77043-14

- 4 -

Broadview for the services so provided.” Memorandum in Support of 

Preliminary Objection, 5/5/2014, at ¶ 4.

In response, MNTAS asserted that it should not be forced to arbitration 

where the employee of MNTAS, Joseph Stonelake, who signed the Service 

Agreement was not authorized to do so, and Broadview knew this 

information at the time the Service Agreement was signed. Alternatively, 

MNTAS suggested that the instant dispute falls outside the language of the 

arbitration provision in the Service Agreement, because it is a collection 

action.

On June 25, 2014, the trial court overruled Broadview’s preliminary 

objection. Broadview timely filed a notice of appeal.2 The trial court did not 

order Broadview to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925, but the court did file an opinion pursuant 

to Pa.R.A.P. 1925(a).

 

2 We recognize that the 

[d]enial of preliminary objections is ordinarily an interlocutory 

order not subject to immediate appeal. Nevertheless: 

Pennsylvania Rule of Appellate Procedure 311 provides that an 

interlocutory appeal may be taken as of right from any order 

which is made appealable by statute. The Uniform Arbitration 

Act, 42 Pa.C.S.A. §§ 7301 et seq., states that an appeal may be 

taken from ‘[a] court order denying an application to compel 

arbitration....’ 42 Pa.C.S.A. § 7320(a)(1). 

Midomo Co. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 182-83 (Pa. 

Super. 1999) (some quotations and citations omitted).
J-S77043-14

- 5 -

Our standard of review for a denial of 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. Where a party to a 

civil action seeks to compel arbitration, a two-part test is 

employed. First, the trial court must establish if a valid 

agreement to arbitrate exists between the parties. Second, if 

the trial court determines such an agreement exists, it must 

then ascertain if the dispute involved is within the scope of the 

arbitration provision. If a valid arbitration agreement exists 

between the parties, and the plaintiff’s claim is within the scope 

of the agreement, the controversy must be submitted to 

arbitration. 

Callan v. Oxford Land Dev., Inc., 858 A.2d 1229, 1233 (Pa. Super. 2004) 

(citations omitted).

Preliminary objections in the nature of a petition to compel arbitration 

filed pursuant to Pa.R.C.P. 1028(a)(6) cannot be determined from facts of 

record. See Pa.R.C.P. 1028(c)(2) (“Note: Preliminary objections raising an 

issue under subdivision (a)(1), (5), (6), (7) or (8) cannot be determined 

from facts of record.”). The Rule further provides that “[i]f an issue of fact is 

raised, the court shall consider evidence by depositions or otherwise.” 

Pa.R.C.P. 1028(c)(2).

Instantly, the trial court offered two reasons as to why it concluded it 

was proper to overrule the preliminary objection.

[T]he arbitration clause specifically states that the mandatory 

arbitration does not apply to collections of amounts due for 

services and injunctive matters. Therefore, because this matter 

is based upon collections, the Preliminary Objections filed by 
J-S77043-14

- 6 -

[Broadview] alleging mandatory arbitrations were property 

overruled.

***

Based upon the fact [] that the Complaint alleges that the 

President of [MNTAS] specifically stated that his employee Mr. 

Stonelake, (the signature to the agreement) had no authority to 

enter into contracts on behalf of the company raises an issue of 

fact. Considering this fact is true, which must be done at this 

stage of the litigation, it is mandated that the Preliminary 

Objections be overruled and the matter proceed to discovery and 

arbitration in the proper forum, Delaware County Court of 

Common Pleas.

 

Trial Court Opinion, 8/6/2014, at 1-2.

On appeal, Broadview asserts that these conclusions were error. First, 

MNTAS argues that the instant action is not a collection action of the type 

contemplated by the arbitration clause. Broadview’s Brief at 13. Broadview 

further argues that because 

MNTAS accepted and utilized for nearly five years the 

telecommunications and related services provided by Broadview 

under the Service Agreement and these services were by no 

means limited to those in dispute here. During these five years, 

MNTAS, through various representatives, including its President, 

regularly interacted with Broadview regarding the Services being 

provided by Broadview, raising multiple service and billing 

issues; in other words, MNTAS repeatedly insisted upon the 

service quality and billing accuracy rights afforded it under the 

Service Agreement. Moreover, MNTAS, with some lapses, paid 

Broadview for the Services provided under the Service 

Agreement at the rates and pursuant to the terms and conditions 

set forth in the Service Agreement, imploring Broadview, during 

one of these aforesaid payments lapses, not to disconnect its 

services for nonpayment. Indeed, the very documents

submitted by [MNTAS] with its Complaint confirm that MNTAS’s 

President knew that Broadview was installing the Services at 
J-S77043-14

- 7 -

MNTAS’s location before such installation was complete and did 

not at that time disavow [Joseph] Stonelake’s authority to 

execute the Service Agreement, or seek rescission of the Service 

Agreement.

Broadview’s Brief at 19-20. 

In other words, Broadview inartfully asserts that the trial court applied 

the rules incorrectly by assuming the facts of MNTAS’s complaint to be true, 

when Broadview was arguing those facts were false. There is no question 

that, pursuant to the aforementioned rules, the trial court was required to 

make a factual determination about the veracity of the allegations in the 

complaint by considering the averments in the preliminary objections as 

well. Moreover, had the trial court required additional facts to make such a 

determination, it should have considered “evidence by deposition or 

otherwise.” Pa.R.C.P. 1028(c)(2). 

Accordingly, the trial court erred as a matter of law, and we vacate the 

order of the trial court. We remand for the trial court to consider the 

preliminary objections filed by Broadview consistent with Pa.R.C.P. 

1028(c)(2), and make the factual determinations as to whether “a valid 

agreement to arbitrate exists between the parties.... [and] if ... such an 

agreement exists, ... ascertain if the dispute involved is within the scope of 

the arbitration provision.” Callan, 858 A.2d at 1233.3

 

3 The determination about whether this is a collection action as 

contemplated in the Service Agreement also requires consideration of facts 
J-S77043-14

- 8 -

Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015

 

other than those asserted in the complaint. Presumably this clause was 

designed by Broadview to permit it to collect for non-payment of services. 

The instant case involves a somewhat more complex inquiry where MNTAS 

asserts it was billed for and paid for services that Broadview did not provide.