that in Reliance Steel, its import is clear. We believe it effectively restricts acceptance to its terms. See also Lockheed Electronics Co., Inc., 114 Cal. App. 3d 304, 170 Cal. Rptr. 591, 30 U.C.C. Rep. Serv. 827 (1981); In re Waterlilly Juniors, Inc., 19 U.C.C. Rep. Serv. 86 (N.Y. Sup. Ct. 1976).
However, our disposition of defendant's motion need not rest on the above basis alone. Section 2207(b)(2) of 13 Pa. C.S. states that additional terms become part of a contract unless they materially alter it. Clearly, the arbitration clause is an additional term, and we believe it is a material alteration.
In Just Born, Inc. v. Stein Hall & Co., Inc., 59 Pa. D. & C. 2d 407 (1971), the plaintiff's purchase order was silent as to the method of settling disputes, but the defendant's acknowledgment included an arbitration clause. The court held that applying 12 A P.S. § 2-207 (the forerunner of 13 Pa. C.S. § 2207) to the case, a contract had clearly been formed, and the arbitration clause in the acknowledgment form was an additional term. Relying upon a 1945 case, Scholler Bros., Inc. v. Hagen Corp., 158 Pa. Super 170, 44 A.2d 321 (1945), the common pleas court held that in Pennsylvania an arbitration agreement cannot be found by implication, and the parties intent to submit to arbitration must be clear.
The Just Born court also found that Pennsylvania's policy regarding arbitration agreements is similar to that of New York. Thus, it relied upon Application of Doughboy Industries, 17 A.D.2d 216, 233 N.Y.S. 2d 488 (1962) and its progeny, which held that an arbitration clause is a material term requiring assent of both parties. In Doughboy the court ruled that an arbitration clause contained in the seller's form but not in the buyer's form was a material alteration under the U.C.C. and therefore did not become part of the contract. Other courts have held that an arbitration clause is a material alteration requiring the parties' assent. Supak & Sons Mfg. Co., Inc. v. Pervel Industries, Inc., 593 F.2d 135 (4th Cir 1979); Valmont Industries v. Mitsui & Co., (U.S.A.), Inc., 419 F. Supp. 1238 (D. Neb. 1976); John Thallon & Co., Inc. v. M & N Meat Co., 396 F. Supp. 1239 (E.D. N.Y. 1975). See also Par-Knit Mills, Inc. v. Stockbridge Fabrics, 636 F.2d 51, 54 n.6 (3d Cir. 1980); Travalio, Clearing the Air After the Battle: Reconciling Fairness and Efficiency in a Formal Approach to U.C.C. Section 2-207, 33 Case W. Res. L. Rev. 327, 334 (1983) ("Whether the arbitration provision becomes part of the contract depends upon its materiality. As courts in most jurisdictions would consider such a term material, it probably would not become part of the contract.") (footnote omitted).
In conclusion, we note that Grimberg's reference to 9 U.S.C. § 2, which provides for the validity and enforcement of arbitration clauses in contracts evidencing transactions in interstate commerce, is irrelevant. That statute does not apply until an arbitration clause is determined to be part of a contract. "Section 2 dictates the effect of a contractually agreed-upon arbitration provision, but it does not displace state law on the general principles governing formation of the contract itself." Supak & Sons Mfg. Co., Inc. v. Pervel Industries, Inc., supra, at 137, citing Duplan Corp. v. W.B. Davis Hosiery Mills, Inc., 442 F. Supp. 86 (S.D. N.Y. 1977).
An appropriate order follows.
Dated: October 29, 1984.
AND NOW, October 29, 1984, the motion to dismiss of John C. Grimberg Company, Inc., is denied.