J. A10038/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MEDISYS, INC.                               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
STEPHANIE HUNSBERGER,                       :           No. 2594 EDA 2016
                                            :
                          Appellant         :


                  Appeal from the Order Entered August 5, 2016,
                 in the Court of Common Pleas of Chester County
                         Civil Division at No. 2015-08867


BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED DECEMBER 08, 2017

      Stephanie Hunsberger (“Hunsberger”) appeals the August 5, 2016

order of the Court of Common Pleas of Chester County that denied

Hunsberger’ s petition to open confessed judgment. After careful review, we

affirm.

      Hunsberger      was    the    sole   owner   of   Medisys   Solutions,   LLC

(“Solutions”).    Hunsberger created Solutions to purchase the assets of

Medisys, Inc. (“Medisys”).         On March 12, 2015, Solutions and Medisys

entered into an asset purchase agreement (“Agreement”) whereby Solutions

would purchase the assets that had been necessary for Medisys to operate

its business of providing data collection, project management, and training

services to healthcare companies and managed care organizations.               On

March 23, 2015, the parties executed an amendment to the Agreement.
J. A10038/17

Under the terms of the Agreement and the amendment, Solutions agreed to

pay Medisys the amount of $1,200,000. Solutions agreed to pay $800,000

at closing with $355,222.60 paid to the escrow agent to cover 110% of

Medisys’s federal, state, and local tax liability with the remainder of the

$800,000 to be paid to Medisys. In addition, the sum of $400,000 was to be

paid by Solutions to Medisys over time pursuant to the terms of a

promissory note.    Under the terms of the promissory note, Solutions was

required to pay the $400,000 back in 60 equal monthly payments of

$7,522.32 due on the first of each month.         The promissory note also

contained   the   following   language   concerning   a   guaranty   agreement

(“Guaranty”):

            D.     GUARANTY AGREEMENT. The obligations of
                   [Solutions] hereunder are secured by that
                   certain      Guaranty       Agreement     dated
                   concurrently       herewith,     executed    by
                   [Hunsberger]       and     [Medisys],   whereby
                   [Hunsberger]      guarantees     the   complete
                   performance of the obligations of [Solutions]
                   under this note. [Medisys] may elect, at its
                   option, to seek enforcement of this Note
                   against [Hunsberger] without first exhausting
                   its rights against [Solutions].

Promissory note, 3/27/15 at 2.

     Under the Guaranty, Hunsberger guaranteed payment of any and all

sums now or hereafter owing to Medisys from Solutions. Of most interest to

the dispute between the parties here are Sections 9 and 10 of the Guaranty

which provided, as follows:



                                     -2-
J. A10038/17


                  Section 9. Obligations Are Unconditional. The
           payment and performance of the Obligations shall be
           the absolute and unconditional duty and obligation of
           [Hunsberger], and shall be independent of any
           defense or any rights or setoff, recoupment or
           counterclaim which [Hunsberger] might otherwise
           have against [Medisys], and [Hunsberger] shall pay
           and perform these Obligations, free of any
           deductions and without abatement, diminution or
           setoff. Until such time as the Obligations have been
           fully paid and performed, [Hunsberger]: (a) shall
           not suspend or discontinue any payments provided
           for herein; (b) shall perform and observe all of the
           covenants and agreements contained in this
           Guaranty; and (c) shall not terminate or attempt to
           terminate this Guaranty for any reason. No delay by
           [Medisys] in making demand on [Hunsberger] for
           satisfaction of the Obligations shall prejudice or in
           any way impair [Medisys’s] ability to enforce this
           Guaranty.

                 Section 10.        Defenses Against Maker.
           [Hunsberger] waives any right to assert against
           [Medisys] any defense (whether legal or equitable),
           claim, counterclaim, or right of setoff or recoupment
           which [Hunsberger] may now or hereafter have
           against [Medisys].

Guaranty Agreement, 3/27/15 at 3, §§ 9 and 10.

     The Guaranty also provided for a confession of judgment clause in

Section 25 against Hunsberger in the event of a default.

     Solutions made the required payments due on April 1 and May 1,

2015. On May 11, 2015, Solutions issued a check to Medisys in the amount

of $9,840.14 along with a spreadsheet that indicated that Solutions was

attempting to offset the amount due. On May 18, 2015, Medisys’s counsel

sent a default notice to Solutions’s counsel. On July 31, 2015, Hunsberger,



                                    -3-
J. A10038/17

in her capacity as a member of Solutions, informed Kimm Ebersole,

president and chief executive officer of Medisys, that certain representations,

warranties, and covenants made by Medisys were misleading.          The letter

also stated that Solutions had suffered losses as defined in Section 8.1 of the

Agreement so that Solutions was entitled to reduce the principal amount

payable pursuant to the promissory note. Solutions informed Medisys that

its losses totaled $472,087.81.   A reduction of that amount exceeded the

amount due on the promissory note.

      By letter dated August 20, 2015, Medisys rejected the statements

Hunsberger had made in the July 31, 2015 letter and stated that Solutions

had defaulted for a third time under the promissory note.

      On September 23, 2015, Ashley L. Beach, counsel for Medisys,

confessed judgment in favor of Medisys and against Hunsberger in the

amount of $399,470.18 which consisted of unpaid principal due under the

Guaranty, $2,343.88 in interest which accrued prior to default, $3,083.50 in

interest which accrued after the default, and $19,022.39 in attorneys’ fees.

That same date, Medisys also filed a complaint in confession of judgment.

      On October 23, 2015, Hunsberger petitioned to strike or open the

confessed judgment. In the petition to strike, Hunsberger alleged that that

the Agreement stated that there were two possible venues for an action

arising out of the Agreement: the Court of Common Pleas of Berks County

and the United States District Court for the Eastern District of Pennsylvania.



                                     -4-
J. A10038/17

Because Medisys filed the confession of judgment in the trial court and not in

the two venues set forth in the Agreement, Hunsberger asserted that the

confession was unauthorized and should be struck.1

      In the petition to open confessed judgment, Hunsberger alleged the

following:

             19.   As a result of the factual averments set forth in
                   this Petition, Hunsberger has the following
                   meritorious defenses that warrant that the
                   confessed judgment be opened:

                   a.    Medisys, by and through the
                         conduct of its staff and its former
                         owner,         Kimm         Ebersole
                         (“Ebersole”), has misrepresented
                         and/or omitted several material
                         facts incident to the Transaction.

                   b.    Medisys, by and through the
                         conduct of its staff and its former
                         owner, Ebersole, has breached the
                         Agreement.

                   c.    Medisys, by and through the
                         conduct of its staff and its former
                         owner, Ebersole, has committed
                         acts of material misrepresentation
                         and nondisclosure incident to the
                         Transaction.

                   d.    Some or all of Medisys’[s] claims
                         are void and unenforceable.

                   e.    Medisys’[s] claims are barred by
                         the doctrine of offset.




1By order dated April 13, 2016, the trial court denied the petition to strike.
Hunsberger did not appeal that order.


                                      -5-
J. A10038/17


                  f.    Medisys’[s] claims are barred by
                        the doctrine of illegality.

                  g.    Medisys’[s] request for relief is
                        barred by the doctrine of unclean
                        hands.

                  h.    Any monies which Medisys claims
                        are owed to it by Hunsberger are
                        offset   by    monies   owed  to
                        [Solutions] by Medisys.

                  i.    Medisys’[s] claims are bared in
                        whole or in part for failure to act in
                        good faith.

                  j.    Medisys’[s] claims are barred in
                        whole or in part by the terms of
                        the agreements between Medisys,
                        [Solutions],     Ebersole,   and
                        Hunsberger.

                  k.    Hunsberger’s actions were entirely
                        appropriate.

                  l.    Hunsberger reserves the right to
                        raise any additional defenses not
                        raised herein of which she may
                        become aware through discovery,
                        further investigation, or otherwise,
                        to assert any other defenses as
                        they become available.

“Petition to Strike or Open Confessed Judgment”, 10/23/15 (“Petition”) at

4-5.

       In the petition, Hunsberger asserted that Medisys had unlawfully

retained contract payments from its prior clients that were due to go to

Solutions under the Agreement.       Hunsberger also asserted that Medisys

failed to assist in the transition from Medisys to Solutions so that Solutions


                                     -6-
J. A10038/17

lost clients and misrepresented the number of medical records that had to

be reviewed under the contract with Health Partners.        Hunsberger further

asserted that Medisys did not facilitate the transition of its Information

Technology systems and misrepresented the condition of its information

technology infrastructure. Hunsberger also alleged that Medisys did not pay

taxes due as required under the Agreement and did not account for deferred

revenue. Hunsberger concluded by alleging that Solutions was permitted to

offset its losses against the amount due on the promissory note. (Petition at

8-26.)

        Following discovery and the submission of briefs, the trial court denied

the petition to open by order filed on August 4, 2016. On August 9, 2016,

Hunsberger filed a timely notice of appeal.           The trial court ordered

Hunsberger to file a statement of errors complained of on appeal, pursuant

to Pa.R.A.P. 2119(b). Hunsberger complied with the order on September 2,

2016.     The trial court did not issue a new opinion but referred to the

reasoning set forth in footnote 1 of its August 4, 2016 order. In footnote 1,

the trial court stated:

                    Hunsberger does not deny that she executed
              the Guaranty, that it was an unconditional guaranty
              and that she agreed to the above quoted language,
              including the waiver language. Rather, Hunsberger
              argues that although she has “waived a right to
              assert a setoff or counterclaim for damages
              unrelated to the [Agreement] . . . [t]he waiver
              language of Section 9 of the Guaranty does not apply
              to the contractual reductions set out in the



                                      -7-
J. A10038/17


          [Agreement] [Section 7] and incorporated into the
          Note.”

                The question thus presented to the court by
          Hunsberger is this: do the various provisions of the
          Guaranty preclude Hunsberger from asserting the
          defense she calls ‘contractual reductions?[’] The
          court finds that they do.

               Hunsberger waived her right to assert her
                          current defenses.

                The plain and unambiguous language of the
          Guaranty, including its waiver provision, renders
          Hunsberger’s obligations under the Guaranty
          absolute and unconditional. Hunsberger agreed that
          this absolute and unconditional obligation would be
          “independent of any defense or any rights of setoff,
          recoupment, or counterclaim.”       Hunsberger also
          agreed that her obligation to pay and perform would
          be “free of any deductions and without abatement,
          diminution or setoff.” The parties could not have
          made it clearer that in executing the Guaranty
          Hunsberger waived her right to challenge her
          obligation to pay and perform.

                Faced   with   such   clear  waiver    terms,
          Hunsberger argues that her defense is not one of
          “common law” setoff – which she acknowledges was
          waived in the Guaranty – but a defense of
          ‘contractual reduction.’  Whether couched as a
          common law defense or a contractual defense,
          Hunsberger waived her right to assert either when
          she agreed to an unconditional and absolute duty in
          the Guaranty.

                 First, Hunsberger’s recent re-characterization
          of her defense stands in stark contradiction to the
          Petition to Open she verified and filed with the court.
          In petitioning the court to open the confessed
          judgment, Hunsberger recited the same facts
          regarding the alleged losses sustained by Solutions
          which she expands upon in her brief, and averred
          that she had the following meritorious defenses:


                                   -8-
J. A10038/17



                (b) Medisys’[s] claims are barred by the
                doctrine of offset.
                ...

                (h) any monies which Medisys claims are
                owed to it by Hunsberger are offset by
                monies owed to Solutions by Medisys[.]

                 Changing the order of the words does not
          change the nature of the defense raised.
          Hunsberger waived her right to assert any right of
          setoff or “offset[.”]

                Second, Hunsberger agreed that her obligation
          to perform was “free of any deductions and without
          abatement, dimunition . . . .”      Her claim of a
          “contractual reduction” is nothing more than a
          deduction, a right she also waived.

                Third, the waiver provision makes clear that
          Hunsberger waived any defense, not just a claim of
          setoff.   The Guaranty states that Hunsberger’s
          obligation is independent of (1) any defense, or
          (2) any rights of setoff, recoupment, or (3) any
          counterclaim (emphasis added [by trial court]). The
          use of the disjunctive “or” indicates the parties’
          intention to preclude Hunsberger from asserting any
          of the above. The phrase “any defense” cannot be
          read to be tied only to “setoff or recoupment[.”] If
          that were the parties’ intention, then it too would
          have been stated in the plural as was the term
          “rights.”   It was not and represents a separate
          category of things waived by Hunsberger.

                  Finally, Hunsberger’s claim that she is entitled
          to have the judgment opened to challenge the
          amount of the debt owed because of the reductions
          taken by Solutions is also without merit. Although
          Hunsberger cites secondary sources for the
          proposition that the “general rule” is that a
          guarantor’s liability will not exceed the debtor’s
          liability, the general rule as cited relates to defenses
          of the debtor which a guarantor may then raise.


                                   -9-
J. A10038/17


            Hunsberger, however, has waived all such defenses
            in her absolute and unconditional Guaranty.
            Furthermore, as set forth in Section 6 of the
            Guaranty, Hunsberger’s obligations remain valid and
            binding “even if the obligations of [Solutions] to
            [Medisys] which are guaranteed hereby are now or
            hereafter become invalid or unenforceable for any
            reason.” Thus, if Solutions’[s] obligation to pay the
            $400,000 is unenforceable due to failures on the part
            of Medisys (what Hunsberger now calls “contractual
            reductions”), under the Guaranty, Hunsberger would
            still be obligated to pay the sum due and owing
            Medisys at the time she executed the Guaranty.

                   Furthermore, the right to take reductions was
            that of Solutions, not Hunsberger.           Moreover,
            although the Note acknowledges that the “principal
            sum shall be subject to reduction pursuant to
            Section 7” of the [Agreement], it also expressly
            provides that any such reduction will not change the
            payment amounts due in any future month. The
            parties do not dispute that the amounts required for
            the first three (3) months were not paid in full by
            Solutions and no further payment was made. Even if
            Solutions was entitled to “reductions” of the principal
            sum for “losses,” it could only make such reductions
            after providing thirty (30) days[’] written notice to
            Medisys, which notice it did not provide. Thus, any
            right to reduce the principal referenced in the Note is
            expressly contingent upon compliance with notice
            terms of the [Agreement], with which Solutions
            failed to comply.

                   Hunsberger’s alleged defenses, meritorious or
            not, were waived by her when she executed the
            Guaranty and cannot be asserted here as
            justification for opening the judgment.

Trial court order, 8/4/16 at footnote 1 pp. 4-6 (emphasis in original).

      On appeal, Hunsberger raises the following issues for this court’s

review:



                                    - 10 -
J. A10038/17


            [1.]   Did the [trial] court err as a matter of law by
                   finding   that     the    Guaranty    precludes
                   Ms. Hunsberger from challenging the confessed
                   judgment based on the principal obligor's
                   exercise of its right, pursuant to the express
                   provisions of the Note, to unilaterally reduce
                   the amount due and owing under the Note?

            [2.]   Did Ms. Hunsberger allege and presented [sic]
                   meritorious   defenses   to   the   confessed
                   judgment and produce sufficient evidence to
                   warrant submission of the case to a jury,
                   where the principal obligor exercised its right
                   to reduce the amount due and owing under the
                   Note seven weeks before Appellee confessed
                   judgment against Ms. Hunsberger under the
                   Guaranty?

Hunsberger’s brief at 3.

      A petition to open a confessed judgment is an appeal to the equitable

powers of the trial court.    Homart Dev. Co. v. Sgrenci, 662 A.2d 1092,

1097 (Pa.Super. 1995).       A confessed judgment will be opened only where

the petitioner acts promptly, asserts a meritorious defense, and presents

sufficient evidence of that defense to warrant submitting the issues of the

case to a jury. Iron Worker’s Sav. & Loan Ass’n v. IWS, Inc., 622 A.2d

367, 370 (Pa.Super. 1993).

            In making such a determination, the court employs
            the same standard as that of the directed verdict—
            viewing all the evidence in the light most favorable
            to the petitioner and accepting as true all evidence
            and proper inferences therefrom supporting the
            defense while rejecting adverse allegations of the
            party obtaining the judgment.

Id.



                                     - 11 -
J. A10038/17

     We will not disturb the trial court’s refusal to open a confessed

judgment absent an abuse of discretion or error of law. Germantown Sav.

Bank v. Talacki, 657 A.2d 1285, 1289 (Pa.Super. 1995).

     Rules for opening a confessed judgment are set forth at Pennsylvania

Rule of Civil Procedure 2959:

           (b)    If the petition states prima facie grounds for
                  relief the court shall issue a rule to show cause
                  and may grant a stay of proceedings. . . .

           ....

           (e)    The court shall dispose of the rule on petition
                  and    answer,    and    on    any    testimony,
                  depositions, admissions and other evidence.
                  . . . If evidence is produced which in a jury
                  trial would require the issues to be submitted
                  to the jury the court shall open the judgment.

Pa.R.C.P. 2959.

     Initially, Hunsberger contends that the trial court erred when it

concluded that she waived her right to challenge the amount of the

confessed judgment. First, she asserts that a guarantor is always permitted

to challenge the amount of debt the guaranty secures.       She explains that

Solutions determined that it could reduce the amount of the debt owed to

Medisys due to various breaches of the Agreement.        As a result of these

breaches, Hunsberger asserts that the losses exceeded the amount of the

debt and extinguished the debt. Hunsberger argues that in the absence of

waiver, a challenge to the amount of an obligation “due and owing” is always




                                    - 12 -
J. A10038/17

permitted so long as the judgment debtor contests the judgment amount in

his or her petition to open. (Hunsberger’s brief at 16.)

      This court notes that the case Hunsberger cites for support for this

proposition, Olson v. Sayers, 2014 WL 10794989 (Pa.Super. Oct. 21,

2014), is an unpublished memorandum opinion of this court and has no

precedential value. See Pennsylvania Superior Court I.O.P. 65.37. Further,

the case cited in Olson for this point of law, Germantown Sav. Bank v.

Talacki, 657 A.2d 1285, 1291 (Pa.Super. 1995), does not address the issue

of waiver which is present here.

      The trial court determined that the Guaranty signed by Hunsberger

was unconditional. An unconditional guaranty is one “whereby the guarantor

agrees to pay or perform a contract without limitation.”          Continental

Leasing Corp. v. Lebo, 272 A.2d 193, 197 (Pa.Cmwlth. 1970).            The trial

court also determined from the plain and unambiguous language of the

Guaranty that Hunsberger waived the defenses or rights of setoff,

recoupment, and counterclaim.        The trial court also determined that

Hunsberger waived any deductions, abatement or diminution and any

defense not just setoff, recoupment, or counterclaim. A review of the record

confirms the trial court’s examination of the Guaranty. This court’s review of

the record, the trial court opinion, and the parties’ briefs leads this court to

conclude that the trial court did not abuse its discretion or commit an error

of law when it denied the petition to open.



                                     - 13 -
J. A10038/17

      Hunsberger next contends that the general rule is that the guarantor’s

liability will not exceed the principal debtor’s liability.   However, the case

Hunsberger cites for support, Ford Motor Credit Co. v. Lototsky, 549

F.Supp. 996 (E.D. Pa. 1982), also states that because a contract of guaranty

is a separate undertaking, a guarantor may assume a contractual liability

greater than that of the debtor.     Therefore, the case cited by Hunsberger

does not support the proposition she espouses. Also, it should be noted that

Medisys indicates in its brief that Medisys and Solutions are currently in

litigation in the Court of Common Pleas of Berks County regarding the

alleged setoff and reduction in the note.

      Hunsberger also asserts that the language of the Guaranty did not

effect a waiver of the right to challenge the amount of the debt the Guaranty

secures.   Hunsberger argues that the Guaranty only waived defenses and

rights of setoff, recoupment, and counterclaim that were personal to

Hunsberger and not ones that applied to Solutions.        However, Hunsberger

ignores Section 6 of the Guaranty which states, “This Guaranty shall be

valid, binding, and enforceable even if the obligations of the Maker

[Solutions] to the Holder [Medisys] which are guaranteed hereby are now or

hereafter become invalid or unenforceable for any reason.” Therefore, under

Section 6, Hunsberger, as guarantor, would still have a duty under the

Guaranty even if Medisys somehow did not fulfill its obligations to Solutions.




                                     - 14 -
J. A10038/17

     Hunsberger next asserts that Solutions has the right to take a

reduction in the amount owed under the note and that it is hornbook law

that a guarantor may assert the defenses of the principal obligor. While that

may be the case generally, Hunsberger ignores the explicit waiver in the

Guaranty.

     Hunsberger also contends that Solutions’s right to take reductions

against the note for incurred losses has not been compromised because it

complied with the terms of the Agreement when it notified Medisys of the

reduction to which it believed it was entitled. As we have already found that

Hunsberger waived all defenses, we need not address this issue. Similarly,

this court need not address the second main issue raised by Hunsberger that

she presented meritorious defenses to the confessed judgment and sufficient

evidence to warrant submission to a jury because Hunsberger waived any

defenses under the Guaranty.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/8/2017




                                   - 15 -
