The opinion
J-A19005-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
AARON SCHNIZER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAFTED SUPPLY COMPANY, LLC :
AND STEVE KUHN FLOORING, LLC :
: No. 166 WDA 2025
:
APPEAL OF: CRAFTED SUPPLY :
COMPANY, LLC :
Appeal from the Order Entered January 23, 2025
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-24-010555
BEFORE: BOWES, J., STABILE, J., and BENDER, P.J.E.
CONCURRING MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 26, 2026
While I agree with my esteemed colleagues that we should affirm the
trial court’s order overruling the preliminary objections (“POs”) filed by Crafted
Supply Company, LLC (“Crafted”), I would do so on different grounds.
Specifically, I would hold that Crafted failed to present the trial court or us
with a competent evidentiary record to consider its request to compel
arbitration. Accordingly, I respectfully concur.
The Majority aptly recites the factual and procedural background of this
matter, so I do not do so at length here. It is sufficient to recount that through
his second amended complaint, Aaron Schnizer purports to have entered into
an agreement with Crafted for the delivery of wood flooring, as evidenced by
the unexecuted flooring estimate attached as Exhibit A. This document
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contains an arbitration clause. Crafted filed POs seeking, inter alia, to enforce
that provision, but it did not request discovery or a hearing, and did not
otherwise offer any evidence to support its contention that the parties had a
valid agreement to arbitrate Mr. Schnizer’s claims against it. Instead, it relied
solely upon the averments of the complaint and the language of the unsigned
agreement. The trial court overruled Crafted’s POs, broadly expressing that
it was “not free and clear of doubt at this stage” as to the applicability of a
choice of law clause in the agreement and its effect of the remaining POs. See
Order of Court, 1/23/25.
Crafted’s sole challenge on appeal relates to the trial court’s decision
not to order the case to arbitration. We have reiterated the pertinent law as
follows:
Our standard of review of a claim that the trial court improperly
overruled preliminary objections in the nature of a petition to
compel arbitration is clear. Our review 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.
In doing so, we employ a two-part test to determine whether the
trial court should have compelled arbitration. First, we examine
whether a valid agreement to arbitrate exists. Second, we must
determine whether the dispute is within the scope of the
agreement.
Fineman, Krekstein & Harris, P.C. v. Perr, 278 A.3d 385, 389 (Pa.Super.
2022) (cleaned up).
In its Pa.R.A.P. 1925(a) opinion, the trial court first and foremost
maintained that Crafted was not entitled to relief because it had not adduced
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evidence of a binding agreement to arbitrate, as was its burden. Particularly,
it determined that the company’s “decision to forgo discovery and accept the
facts as pled in [Mr.] Schnizer’s complaint [was] an error.” See Trial Court
Opinion, 3/5/25, at 4.
In that regard, we have held:
[P]reliminary objections in the nature of a petition to compel
arbitration filed pursuant to Pa.R.Civ.P. 1028(a)(6) cannot be
determined from facts of record. See [Pa.R.Civ.P. 1028], Note
(“Preliminary objections raising an issue under subdivision (a)(1),
(5), (6), (7) or (8) cannot be determined from facts of record. In
such a case, the preliminary objections must be endorsed with a
notice to plead or no response will be required under Rule
1029(d).”). In other words, a dispute raising an issue under [Rule
1028(a)(6] cannot be resolved by reference to facts pled in the
complaint. Additional evidence is required.
Davis v. Center Management Group, LLC, 192 A.3d 173, 183 (Pa.Super.
2018) (citations altered; some citations and quotation marks omitted).
The trial court noted that the POs “lack[ed] both a notice to plead and
an affidavit attesting to the validity of the contract and its alleged arbitration
clause.” See Trial Court Opinion, 3/5/25, at 4. It further opined that Mr.
“Schnizer never signed the contract, and Crafted . . . fail[ed] to allege any
factual basis or legal theory to explain why [Mr.] Schnizer’s signature was not
required for the agreement to be fully enforceable.” Id. Thus, the court
concluded that Crafted’s failure to provide any evidence concerning the
operability of the underlying contract or arbitration clause warranted denial of
the request. Id. at 5.
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In reliance of its determination, the court cited one of our non-
precedential decisions, Calfo v. Jones, 313 A.3d 193, 2024 WL 209319
(Pa.Super. 2024) (non-precedential decision). In that case, a son sued his
mother for various claims and attached two unexecuted operating agreements
to the complaint, both of which contained arbitration provisions. The mother
filed POs in the nature of a petition to compel arbitration, relying solely on the
complaint and unexecuted agreements. The trial court overruled the POs and
we affirmed on appeal.
Specifically, we highlighted that, pursuant to Rule 1028, POs seeking to
compel arbitration “placed the burden of production and persuasion upon [the
mother] to offer competent evidence—by affidavits, requests for admissions,
depositions, or a hearing—to convince the trial court that an agreement to
arbitrate existed.” Id. at *4. We further noted that unlike with demurrers,
where the court may only rely on information contained within the pleadings,
“[t]he complaint is not competent evidence for purposes of [POs] brought
under Pa.R.Civ.P. 1028(a)(6).” Id. Hence, we concluded that the mother’s
“failure to offer any proof [wa]s fatal to her [POs], because it [wa]s entirely
possible that neither of the [unexecuted operating agreements wa]s
operable.” Id. (emphasis in original).
In my view, this same logic applies to the case sub judice. Crafted had
the burden to introduce some form of evidence, whether through affidavits,
requests for admissions, depositions, or testimony at a hearing, to convince
the trial court that there was a binding agreement to arbitrate. Crafted did
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not request an evidentiary hearing or the opportunity to conduct discovery,
which the trial court stated it would have granted. See Trial Court Opinion,
3/5/25, at 5. In essence, Crafted made the same mistake that the defendant
did in Calfo, relying solely on averments in the complaint and an unexecuted
flooring estimate. Further, as the Majority cogently notes, Crafted has
expressly conceded on appeal that it is not taking the position that Mr.
Schnizer admitted to the enforceability of the contract or its arbitration
provision merely by attaching it to the complaint. See Majority Memorandum
at 10 n.6. Indeed, one of Mr. Schnizer’s main contentions in the underlying
suit is that various parts of the agreement are unenforceable based on
Crafted’s failure to comply with the Home Improvement Consumer Protection
Act.
For these reasons, I would affirm the trial court’s decision to overrule
the POs in the nature of a petition to compel arbitration based on Crafted’s
failure to produce any evidence supporting its position. I therefore would not
reach the question of whether Mr. Schnizer was bound by the terms of the
unexecuted agreement or otherwise examine the language of Exhibit A to
ascertain its enforceability.
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