J-A23010-14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

RAY DAMI AND RAD MANAGEMENT 

ASSOCIATES, INC., 

:

:

IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

:

 Appellees :

:

 v. :

:

LANE M. TURTURICE, TERRY L. FAUST 

AND JEFFREY D. BULL, 

:

:

:

 Appellants : No. 602 WDA 2013 

Appeal from the Order entered March 19, 2013, 

Court of Common Pleas, Washington County, 

Civil Division at No. 2012-5004 

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 18, 2014 

Appellants, Lane M. Turturice (“Turturice”), Terry L. Faust (“Faust”), 

and Jeffrey D. Bull (“Bull”) (collectively, the “Appellants”), appeal from the 

trial court’s order dated March 19, 2013, denying their Preliminary 

Objections to the Amended Complaint of Appellees Ray Dami (“Dami”) and 

RAD Management Associates, Inc. (“RAD”) (collectively, “Appellees”). For 

the reasons that follow, we reverse the trial court’s order and remand with 

instructions. 

RAD, a company owned and operated by Dami, had a contract with the 

Washington East Washington Joint Sewer Authority (“WEWJA”) to provide 

professional management services to operate the municipal sewer authority 

(hereinafter, the “Agreement”). In March 2011, WEWJA terminated the 
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Agreement. At the time of termination, Faust and Bull were members of 

WEWJA’s Board of Directors and Turturice was the Board’s Solicitor. 

Through the arbitration clause in the Agreement, RAD contested the 

termination. A three-member arbitration panel heard the claims of RAD and 

the cross claims of WEWJA, and on March 28, 2012 entered an arbitration 

award in favor of WEWJA. The trial court subsequently dismissed a petition 

filed by RAD to vacate the arbitration award. 

Dami and RAD then filed the instant lawsuit, in which they set forth 

claims of defamation and false light invasion of privacy against Turturice and 

claims of conspiracy and tortious interference with contractual relationships 

against all of the Appellants. The Appellants filed Preliminary Objections in 

which they, inter alia, sought dismissal of the Complaint on the grounds that

the trial court lacked subject matter jurisdiction and that the matter should 

instead be referred to arbitration pursuant to the arbitration provision in the 

Agreement. In response, Dami and RAD filed an Amended Complaint, 

adding additional allegations to establish that in connection with the 

termination of the Agreement, the Appellants acted outside the scope of 

their official capacities as Solicitor and Board Members – including that the 

three conspired to have Turturice present to the WEWJA Board a false and 

misleading investigative report regarding RAD to serve as the basis for the 

Board’s termination of the Agreement. 
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The Appellants filed Preliminary Objections to the Amended Complaint, 

again asserting that the disputes must be referred to arbitration pursuant to 

the terms of the Agreement. The Appellants denied that Dami and RAD 

acted outside of their official capacities, attaching to the Preliminary 

Objections as exhibits a substantial quantum of supporting evidence, 

including deposition transcripts, answers to interrogatories, Board minutes, 

and other documentary evidence. Dami and RAD then filed Preliminary 

Objections to Appellants’ Preliminary Objections, and a Brief in Support of 

Preliminary Objections and in Opposition to [Appellants’] Preliminary 

Objections. Dami and RAD attached to their brief evidence in support of the 

allegations in the Amended Complaint, including deposition transcripts and 

exhibits. Finally, in a Brief in Opposition to [Appellees’] Preliminary 

Objections to Preliminary Objections, the Appellants attached additional 

exhibits, including minutes of meetings of the Washington City Council. 

After oral argument, by order dated March 19, 2013, the trial court 

overruled the Appellants’ Preliminary Objections as “premature.” In its 

order, the trial court concluded that “although [Appellants] have raised 

numerous potentially dispositive objections, these matters are most properly 

raised in a Motion for Summary Judgment after the parties have thoroughly 

ventilated [Appellees’] allegations in Discovery.”1

 Trial Court Order, 

 

1

 In their appellate brief, the Appellees now contend that the trial court 

decided the disputed issues of fact in their favor based “on a sufficient 
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3/19/2013, at ¶ 2. In its subsequent written opinion pursuant to Rule 

1925(a) of the Pennsylvania Rules of Appellate Practice, the trial court held 

that while it was “skeptical of the bald assertions of the [Appellees] that the 

[Appellants] were acting outside their authority,” its hands were tied 

because “[w]hen deciding preliminary objections, the trial court must 

consider as true all [well] pleaded facts set forth in the complaint and all 

reasonable inferences that can be drawn therefrom.” Trial Court Opinion, 

2/10/2014, at 3. The trial court indicated that it had considered the exhibits 

attached to the Appellants’ Preliminary Objections, but the Appellees 

“asserted that they needed discovery involving many of the issues.” Id.

at 6. As a result, the trial court “found the allegations were sufficient to 

proceed and declined to dismiss the claims at the preliminary objections 

stage.” Id. at 3. 

This timely appeal followed, in which the Appellants raise four issues 

for our consideration and determination: 

1. Whether the trial court erred in finding that 

Appellants’ preliminary objections in the nature of a

petition to compel arbitration and lack of subject 

matter jurisdiction were premature and deferring to 

a motion for summary judgment, where the 

 

record of evidence.” Appellees’ Brief at 13 (“The Trial Court based its finding 

that Defendants were acting outside the scope of their authority as agents of 

WEWJA with regard to their actions at issue in this suit, on a sufficient 

record of evidence, which included Defendants’ own sworn testimony.”). We 

find no basis whatsoever for such an assertion, either in the trial court’s 

March 19, 2013 order or its February 10, 2014 written opinion in support of 

its order. The trial court repeatedly declined to decide these issues of fact. 
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arbitrability of a dispute is required to be determined 

at the outset of litigation with the trial court 

developing the appropriate factual record on the 

issue, if necessary. 

2. Whether the trial court erred in failing to find that a 

valid agreement to arbitrate existed between the 

parties, where all parties to this lawsuit are either 

signatories to the [Agreement] or constitute agents 

and representatives of the signatories, and where 

Appellees failed to either plead or prove that 

Appellants were acting ‘outside’ their capacities as 

agents and representatives of the signatories. 

3. Whether the trial court erred in failing to compel

arbitration on an alternative basis, i.e., whether the 

doctrine of equitable estoppel precludes Appellees 

from resisting arbitration where there is an obvious 

and close nexus between the non-signatories and the 

contract, as well as an obvious and close nexus 

between the non-signatories and the contracting 

parties. 

4. Whether arbitration should be compelled where 

Appellees’ claims fall within the scope of a valid and 

enforceable arbitration clause which broadly requires 

arbitration as to ‘any matter in connection’ with the 

subject [Agreement]. 

Appellants’ Brief at 4-5. 

An agreement containing an arbitration clause as a form of alternative 

dispute resolution is properly raised in preliminary objections, Pa.R.C.P. 

1028(a)(6), and the denial of preliminary objections seeking to compel 

arbitration is appealable as an interlocutory appeal as of right. 42 Pa.C.S.A. 

§ 7320(a)(1); Pa.R.A.P. 311(a)(9); Gaffer Ins. Co., Ltd. v. Discover 

Reinsurance Co., 936 A.2d 1109, 1110 (Pa. Super. 2007). “Our review of 
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a claim that the trial court improperly denied [the] appellant's 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.” Midomo Co., Inc. v. Presbyterian Housing Development Co., 

739 A.2d 180, 186 (Pa. Super. 1999); see also Gaffer, 936 A.2d at 1112. 

When deciding whether a trial court should have compelled arbitration, 

we employ a two-part test: (1) does a valid agreement to arbitrate exist, 

and (2) is the dispute within the scope of the agreement. Smay v. E.R. 

Stuebner, Inc., 864 A.2d 1266, 1270 (Pa. Super. 2004); Callan v. Oxford 

Land Development, Inc., 858 A.2d 1229, 1233 (Pa. Super. 2004). 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. Highmark Inc. v. Hospital Service Ass'n. of 

Northeastern Pennsylvania, 785 A.2d 93, 98 (Pa. Super. 2001), appeal 

denied, 797 A.2d 914 (Pa. 2002). Public policy strongly favors the 

enforcement of arbitration provisions to settle disputes quickly, fairly, and 

economically. Smay, 864 A.2d at 1272. 

For their first issue on appeal, Appellants contend that the trial court 

erred in declining to decide the issue of arbitrability at the preliminary 

objections stage of the proceedings. We agree. Rule 1028(c)(2) of the 

Pennsylvania Rules of Civil Procedure states as follows: 
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(c)(2) The court shall determine promptly all 

preliminary objections. If an issue of fact is raised, 

the court shall consider evidence by depositions or 

otherwise. 

Pa.R.C.P. 1028(c)(2). Where preliminary objections raise one or more 

issues of contested fact, this Court and our Supreme Court have instructed 

that “the trial court must ‘resolve the dispute by receiving evidence thereon 

through interrogatories, depositions or an evidentiary hearing.’”2

 Slota v. 

Moorings, Ltd., 494 A.2d 1, 2-3 (Pa. Super. 1985) (citing Holt Hauling 

and Warehousing Systems, Inc. v. Aronow Roofing Co., 

454 A.2d 1131, 1133 (Pa. Super. 1983) and Luitweiler v. Northchester 

Corp., 319 A.2d 899, 902 (Pa. 1974)). 

In Schmitt v. Seaspray-Sharkline, Inc., 531 A.2d 801 (Pa. Super. 

1987), this Court amplified on the burdens of production and proof in this 

circumstance: 

Appellee properly contested jurisdiction by filing 

preliminary objections. The moving party has the 

 

2

 Local Rule L-1028(c) of the Washington County Local Rules of Civil 

Procedure provides in pertinent part: 

Where Preliminary Objections contain grounds 

raising issues of fact, said objections shall be 

endorsed with a Notice to Plead and the Court will 

schedule deposition of said objections with due 

consideration for the time required by the parties to 

obtain evidence required for consideration of said 

objection. All evidence that the parties wish the 

Court to consider shall be filed with the party’s Brief. 

Washington County Rules of Civil Procedure L-1029(c). 
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burden of supporting its objections to the court's 

jurisdiction. Once the plaintiff has produced some 

evidence to support jurisdiction, the defendant must 

come forward with some evidence of his own to 

dispel or rebut the plaintiff's evidence. The moving 

party may not sit back and, by the bare allegations 

as set forth in the preliminary objections, place the 

burden upon the plaintiff to negate those allegations. 

It is only when the moving party properly raises the 

jurisdictional issue that the burden of proving 

jurisdiction is upon the party asserting it. If an issue 

of fact is raised, the court shall take evidence by 

deposition or otherwise. The court may not reach a 

determination based upon its view of the 

controverted facts, but must resolve the dispute by 

receiving evidence thereon through interrogatories, 

depositions, or an evidentiary hearing. 

Id. at 531-32 (citations omitted). 

The Preliminary Objections filed by the Appellants clearly raise 

dispositive issues of fact. The Agreement between WEWJA and RAD 

provides in relevant part: 

In the event of any dispute between [WEWJA] and 

RAD with respect to any matter in connection with 

this Agreement, such dispute shall be settled by 

arbitration in accordance with the Commercial 

Arbitration Rules of the American Arbitration 

Association. 

Preliminary Objections to Amended Complaint, 11/21/2012, at Exhibit 1. 

The Appellants contend that this arbitration provision requires that the 

claims in the Appellees’ Amended Complaint be submitted to arbitration 

because all three Appellants, as the Solicitor and Board Members, are agents 
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and representatives of WEWJA.3

 The Appellees disagree, contending that 

the allegations in the Amended Complaint establish that the three Appellants 

were acting outside the scope of their capacities as agents and 

representatives of WEWJA, and therefore the Agreement has no application 

here. The Appellants counter, arguing that the evidence attached to their 

Preliminary Objections establishes that they were acting within the scope of 

their representative capacities at all times in connection with WEWJA’s 

termination of the Agreement. 

Pursuant to Rule 1028(c)(2), it was incumbent on the trial court to 

decide the Appellants’ Preliminary Objections “promptly,” and its decision to 

defer a determination regarding the arbitrability of the Appellees’ claims until 

the summary judgment stage of the proceedings was error. Accordingly, we 

reverse the trial court’s March 19, 2013 and remand the case with 

 

3

 As the trial court correctly recognized, so long as individuals act within the 

scope of their representative capacities, a valid agreement to arbitrate is not 

rendered ineffective merely because the claims at issue are asserted against 

individuals rather than the corporate signatory of the agreement. Trial Court 

Opinion, 2/10/2014, at 5-6. In general, only the parties to an arbitration 

agreement are subject to arbitration. Cumberland-Perry Area 

Vocational-Technical School v. Bogar & Bink, 396 A.2d 433, 435 

(Pa. Super. 1978). As our Supreme Court recently reaffirmed in Tayar v. 

Camelback Ski Corp., Inc., 47 A.2d 1190, 1196 (Pa. 2012), however, 

corporate entities must act through their agents and representatives, and 

thus contractual provisions referring to the corporate entity are assumed to 

also refer to the entity’s agents and representatives (even if not specifically 

mentioned). Accordingly, if the Appellants were acting within the scope of 

their representative capacities on behalf of WEWJA, the reference in the 

arbitration provision of the Agreement to WEWJA in the above-cited 

arbitration provision applies to both to WEWJA and the Appellants. 
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instructions that the trial court decide all issues of fact and issue a ruling 

either granting or overruling said Preliminary Objections forthwith.4

 We note 

that the parties have already submitted substantial evidence to the trial 

court on the disputed issues of fact, but it is in the trial court’s discretion to 

determine whether to permit the parties to engage in additional discovery 

and/or whether to conduct an evidentiary hearing prior to rendering its 

ruling. 

The trial court’s order dated March 19, 2013 is reversed. The case is 

remanded to the trial court to make a determination on the arbitrability of 

this dispute. This Court’s jurisdiction is relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/18/2014 

 

4

 Based upon our disposition of the Appellants’ first issue on appeal, it is 

unnecessary to address the remaining three issues.