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UNIVERSAL PLUMBING & PIPING SUPPLY v. JOHN C. GRIM

October 29, 1984

UNIVERSAL PLUMBING AND PIPING SUPPLY, INC., t/a and d/b/a UNIVERSAL PIPE AND MANUFACTURING, Plaintiff
v.
JOHN C. GRIMBERG COMPANY, INC., Defendant


Barron P. McCune, United States District Judge.


The opinion of the court was delivered by: MCCUNE

BARRON P. McCUNE, UNITED STATES DISTRICT JUDGE

 We consider a motion to dismiss filed by defendant, John C. Grimberg Co., Inc., (hereinafter Grimberg), a Maryland corporation with its principal place of business in Maryland. Plaintiff, Universal Plumbing and Supply, Inc. (hereinafter Universal), a Delaware corporation with its principal place of business in Pennsylvania, filed this suit in order to resolve a contract dispute. Jurisdiction is based upon diversity of citizenship. For the reasons that follow, the motion to dismiss will be denied.

 This quotation is subject to your acceptance by a written purchase order within thirty (30) days, and acceptance of your purchase order by Universal Pipe & Manufacturing, . . . . If your purchase order contains terms or conditions which in any way do not conform to this quotation, such nonconforming terms . . . shall be considered as proposals for acceptance by Universal and shall not be deemed as accepted . . . unless such acceptance is in writing and specifically refers to each such term or condition.

 Grimberg responded with a written purchase order dated February 10, 1982, by which Universal was to supply pipe for the lump sum price of $ 93,373.00. *fn1" The bottom of the purchase order states, "See additional terms and conditions on reverse side." One of the terms, relevant herein, states,

 DISPUTES

 
All conditions, requirements and procedures for settling claims and disputes contained in the prime contract for the project referenced in this Purchase Order are made a part of this Purchase Order and Seller is bound thereby to the same extent as Buyer. In the event there are no specific dispute procedures contained in the prime contract, the procedures of the American Arbitration Association shall apply. Said arbitration proceedings shall be held at such place as the parties may mutually agree upon or, in the event of a failure to agree, shall be held in the District of Columbia.

 In its motion to dismiss defendant asserts, based upon the above "Disputes" provision, that the issues raised in Universal's complaint must be submitted to arbitration. In fact, on August 22, 1984, Grimberg filed an arbitration demand with the American Arbitration Association in Washington, D.C. Universal counters that the terms and conditions of Appendix A preclude giving effect to the arbitration clause contained in defendant's purchase order. Plaintiff asserts that its agreement to the arbitration clause, in writing, is required in order to give effect to that provision, and no such agreement has been given.

 Both parties agree that this dispute must be resolved in light of 13 Pa. C.S. § 2207, which provides, in pertinent part,

 
§ 2207. Additional terms in acceptance or confirmation
 
(a) General rule. - A definite and seasonable expression of acceptance or a written confirmation . . . operates an an acceptance even though it states terms additional to or different from those offered or agreed upon. . . .
 
(b) Effect on contract. - The additional terms are to be considered as proposals for addition to the contract. Between merchants such ...

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