shipped one of Movie-Dine's films to another distributor in Kansas. Further, Bogen stated that the training supplied by Movie-Dine to Coleman was provided by individuals who traveled to Pennsylvania from out-of-state for that purpose. Although Coleman stated in his affidavit that the Movie-Dine films were exhibited exclusively in restaurants located in Eastern Pennsylvania, he failed to address, and therefore refute, the facts demonstrating interstate commerce as presented by Bogen's affidavit and evidenced by the agreement. We find, therefore, that Movie-Dine has met its burden in establishing that the distributor licensing agreement executed between Coleman and Movie-Dine is a contract evidencing a transaction involving commerce and is one covered by sections 1 and 2 of the Act.
We must next determine whether the issues involved in this proceeding are referable to arbitration under the terms of the contract executed between Coleman and Movie-Dine.
Coleman argues that the issues in this suit are not arbitrable because of his allegation of fraud in the inducement to enter the agreement, and because the suit has been brought as a class action pursuant to Fed.R.Civ.P. 23. First, Coleman's claim of fraud in the inducement is a general attack on the validity of the contract and not specifically directed to the agreement's arbitration provision itself. A claim of fraud in the inducement of the contract is insufficient to prevent the invocation of the arbitration provision of the contract. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra, 388 U.S. at 402-404. It is well settled that a general attack on a contract on the ground of fraud in the inducement is a severable claim which is referable to arbitration and is a claim which should not be considered by a federal court. Id. at 404. Only a claim of fraud in the inducement which is addressed to the arbitration provision per se should be adjudicated by the court rather than the arbitrator, because a federal court, in passing upon a section 3 application for a stay, may consider only issues relating to the making and performance of the agreement to arbitrate. Id. at 404; Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Commission, 387 F.2d 768, 771 (3d Cir. 1967). We find, therefore, that Coleman's claim of fraud in the inducement is a severable claim and an issue which is referable to arbitration.
Second, Coleman argues that, even under the broadest interpretation of the agreement's arbitration clause,
the parties never agreed to permit issues brought as a class action to be referable to arbitration. In the absence of any express provision excluding a particular grievance from arbitration, "only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail" where the arbitration clause is broad in its coverage. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 584-585. Arbitration should not be foreclosed simply by adding persons to a civil action who are not parties to the arbitration agreement because such an inclusion would thwart the federal policy in favor of arbitration. Cf. Hilti, Inc. v. Oldach, 392 F.2d 368, 369 n.2 (1st Cir. 1968); Lawson Fabrics, Inc. v. Akzona, Inc., 355 F. Supp. 1146, 1151 (S.D.N.Y.), aff'd mem., 486 F.2d 1394 (2d Cir. 1973). We find, therefore, that Coleman cannot prevent the submission of his claims to arbitration by bringing this suit as a class action, because the broad arbitration clause in the agreement does not have an express provision excluding class actions from arbitration and because there is no forceful evidence of a purpose to exclude such a claim from arbitration.
The thrust of Coleman's suit is the recovery of damages from Movie-Dine and Cine-Tel for their alleged breach of contract. Although claims for breach of contract are the archetypal kinds of disputes referable to arbitration, Macchiavelli v. Shearson, Hammill & Co., Inc., 384 F. Supp. 21, 30 (E.D.Cal. 1974), we must examine the agreement to arbitrate in order to determine which issues are referable to arbitration. In this case, the parties have specifically agreed in their contract to the inclusion of an arbitration provision which states that "any controversy, dispute or question arising out of any aspect of the Agreement, including the making thereof, shall be resolved by arbitration."
Coleman's claim for damages for Movie-Dine's alleged breach of contract is clearly a controversy or dispute arising out of the distributor licensing agreement. We find, therefore, that Coleman's claim for damages for breach of contract is an issue which the parties agreed is referable to arbitration under the terms of the agreement.
The only remaining issue is whether there has been a waiver by Movie-Dine of the right to arbitration. Waiver of the right to arbitration is not to be lightly inferred, and unless one's conduct has gained him an undue advantage or resulted in prejudice to another, he should not be held to have relinquished the right to arbitration. Gavlik Construction Co. v. H.F. Campbell Co., 526 F.2d 777, 783 (3d Cir. 1975); Vespe Contracting Co. v. Anvan Corp., 399 F. Supp. 516, 522 (E.D.Pa. 1975). In this case, Movie-Dine's prompt application to stay the proceedings pending arbitration, filed within four weeks of service, precludes any finding of Movie-Dine's waiver of its right to arbitration.
In conclusion, we shall stay the suit brought in this Court, pursuant to 9 U.S.C. § 3 (1970),
until such arbitration has been completed in accordance with the terms of the agreement.
An appropriate Order will be entered.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 449 F. Supp.]
AND NOW, TO WIT, this 28th day of April, 1978, IT IS ORDERED that the application of defendants, pursuant to 9 U.S.C. § 3 (1970), for an Order staying all proceedings in this action pending plaintiff's submission of his claim to arbitration is hereby granted.
IT IS FURTHER ORDERED that the parties are directed to promptly initiate the arbitration and to pursue it to completion. So long as the within civil action is stayed, the parties shall advise the Court every ninety (90) days, in writing, of the status of such arbitration proceedings.
LOUIS C. BECHTLE, J.