The opinion of the court was delivered by: PLATT
By motion dated March 11, 1975, M & N Meat Company (hereinafter "Respondent") seeks to dismiss a petition to compel arbitration of John Thallon & Co., Inc. (hereinafter "Petitioner") on the grounds of (1) forum non conveniens, (2) improper party respondent, and (3) that respondent never agreed to arbitrate its disputes with petitioner or, in the alternative, to transfer the hearing on the petition to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1404. Petitioner cross-moves for an order pursuant to 9 U.S.C. § 4 compelling the parties to arbitrate their disputes before the American Arbitration Association in New York City.
Petitioner, a New York corporation with offices in Rockville Centre, New York, is engaged in the business of importing and exporting foreign and domestic frozen meat and has done so in the New York City and metropolitan area for a number of years.
Respondent, a Pennsylvania corporation, is a meat broker with offices at 201 Penn Center Boulevard, Pittsburgh, Pennsylvania. M & N Trading Company, also a Pennsylvania corporation located at the same address, is a subsidiary of respondent which buys and resells meat to respondent for resale to others.
On January 28, 1974, as set forth in respondent's affidavit, M & N Trading Company contracted by telephone through Hess-Stephenson Co., a meat broker located in Chicago, Illinois, to purchase from the petitioner one load (approximately 15 tons) of frozen Australian cow meat.
Hess-Stephenson sent a document entitled Confirmation, dated January 28, 1974, to both parties stating the terms of the sale as follows:
Sold to -- M & N Meat Company
Bought From -- John Thallon & Company, Inc.
15 Long Tons Frozen Boneless Australian Cow
60# Even Weight Cartons
85% Lean by Chemical Analysis
Price -- 89-1/2 Cents X Dock SS Act III Philadelphia, Pa.
On January 28, 1974, petitioner sent to respondent a document described as a "contract of sale", although not so entitled, setting forth essentially the terms above but with additional terms on the reverse side which will be hereinafter discussed. On January 29, 1974, M & N Trading Co., (not respondent) sent a "Purchase Order" directly to petitioner setting forth the terms of the agreement as 1 Load Staiger [sic] Crops, price 3.3950 X D, ship via Act III with the request that the purchase be invoiced to M & N Trading Company.
On the reverse side of petitioner's "Contract of Sale" are 12 additional terms which the respondent claims it never agreed to. The pertinent provisions are as follows:
"1) This contract shall not bind the Seller until signed and returned to Seller and unless returned within 10 days of the date hereof.
3) This contract contains no guarantees, warranties or representations except as expressly set forth herein and can be modified or rescinded only by a writing signed by both parties.
8) This contract and the rights of the parties hereunder shall be governed by the laws of New York.
9) In the event of dispute, Seller shall have the option of submitting same to arbitration in the City of New York, same to be conducted under the commercial rules of the American Arbitration Association and any determination made by such Arbitrator shall be final and binding, not subject to review and a judgment may be entered pursuant thereto; or Seller may pursue any other remedy including litigation. Buyer consents to the jurisdiction of the courts of the State of New York and consents that any process issuing out of such court may be served upon it by registered or certified mail sent to it at the address on the reverse side of this contract and such service shall by [sic] sufficient to confer personal jurisdiction on such court. The cost of arbitration or litigation including attorneys' fees of 15% of amount in dispute shall be paid by the party against whom the dispute is resolved.
11) In the event buyer claims imported meat covered by this contract is less than 85% chemical lean, seller has right to ...