The opinion of the court was delivered by: Joyner, District Judge.
This case has been brought before the Court on Motion of the
Defendant-Counterclaimant Florida Infusion Services, Inc. for
summary judgment on both the Plaintiff's complaint for
declaratory judgment and its counterclaim for judgment on the
commercial promissory note and guaranty agreement which plaintiff
and her husband executed in defendant's favor on August 24, 1999.
For the reasons which follow, the motion shall be denied.
Both Plaintiff, Bernadette Meade and her husband, Third-Party
Defendant Keith Mills, are physicians maintaining separate
medical practices at 3013 Garrett Road in Drexel Hill, PA. Dr.
Mills' apparently concentrates his practice in the treatment of
cancer patients, many of whom are indigent. Dr. Mills has been
purchasing chemotherapy drugs and other supplies from Defendant
Florida Infusion Services, Inc. ("FIS") for the last five years
with the result that, as of August of 1999, he owed FIS
$266,445.71, $261,763.36 of which was past due.
According to FIS, as an accommodation to Drs. Mills and Meade,
it agreed to convert the amount due as of August 3, 1999 into a
loan to be repaid by both of them over a period of 28 months at
the rate of $10,444.10 per month. On September 1, 1999, Drs.
Mills and Meade executed and delivered to FIS a Commercial
Promissory Note and Guaranty Agreement in which they promised to
repay, jointly and severally, the sum of $266,445.71 under the
above terms. Although Plaintiff and Third-Party Defendant made
the required payments in September, October and November, 1999,
they have failed to make any payments since that time and
Defendant now contends that it is entitled to judgment in its
favor as a matter of law in the amount of $253,042.53.
In opposition to the defendant's motion, Plaintiff advances the
same argument that she asserts in her complaint for declaratory
judgment. Specifically, it is Plaintiff's position that because
there was no consideration for her promise and agreement to help
pay her husband's pre-existing business debt, the commercial
promissory note and guaranty are unenforceable. Thus, Dr. Meade
contends, this case presents genuine issues of material fact and
summary judgment is inappropriate.
Standards Governing Summary Judgment Motions
The standards to be applied by the district courts in ruling on
motions for summary judgment are set forth in Fed. R.Civ.P. 56.
Under subsection (c) of that rule,
. . . The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law. A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone
although there is a genuine issue as to the amount of
Pursuant to this rule, a court is compelled to look beyond the
bare allegations of the pleadings to determine if they have
sufficient factual support to warrant their consideration at
trial. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287
(D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102
L.Ed.2d 51 (1988); Aries Realty, Inc. v. AGS Columbia
Associates, 751 F. Supp. 444 (S.D.N.Y. 1990).
Generally, the party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion and identifying those portions of the
pleadings, depositions, answers to interrogatories and admissions
on file, together with any affidavits, which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). In considering a summary judgment motion, the
court must view the facts in the light most favorable to the
non-moving party and all reasonable inferences from the facts
must be drawn in favor of that party as well. U.S. v. Kensington
Hospital, 760 F. Supp. 1120 (E.D.Pa. 1991); Schillachi v. Flying
Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D.Pa. 1990). See
Also: Williams v. Borough of West Chester, 891 F.2d 458, 460
(3rd Cir. 1989); Tziatzios v. U.S., 164 F.R.D. 410, 411, 412
The outcome of this case turns on the language of the
promissory note and guarantee and the circumstances under which
they were executed. Defendant submits that because there is a
choice of law provision in the notes which Plaintiff signed, the
law of Florida should be applied in this case.*fn1 While
Plaintiff argues that, "Pennsylvania law would undoubtedly apply
to FIS's efforts to enforce its past due obligation," it appears
to this Court that we need not necessarily resolve this issue as
the law of both states is similar to the extent that it holds
that forbearance in the collection of an outstanding account may
be sufficient to support the promise to pay a debt of a third
person, provided the grant of such delay is of benefit to the
promisor, or the one for whom he intervenes. Koons v. Franklin
Trust Co., 276 Pa. 377, 380, 120 A. 387, 388 (1923). See Also:
City of South Miami v. Dembinsky, 423 So.2d 988, 989
(Fla.Dist.Ct.App. 1982); Bara v. Jones, 400 So.2d 88
(Fla.Dist.Ct. App. 1981).
Pennsylvania courts, of course, have traditionally held that a
choice of law provision in a contract will be upheld as long as
the transaction bears a reasonable relationship to the state
whose law is governing and where the parties have sufficient
contacts with the chosen state. Watkins
v. Kmart Corporation, 1998 WL 355525, 1998 U.S.Dist. LEXIS 9494
(E.D.Pa. 1998); Cottman Transmission Systems, Inc. v. Melody,
869 F. Supp. 1180, 1184 (E.D.Pa. 1994); Jaskey Finance and
Leasing v. Display Data Corp., 564 F. Supp. 160 (E.D.Pa. 1983).
Since the record in this action contains no evidence as to
whether or not the plaintiff has any contacts whatsoever with
Florida and as to whether or not this transaction bears a
reasonable relationship to Florida, we find that genuine issues
of material fact exist which preclude a definitive determination
from being made at this time as to which state's law should
Moreover, in reviewing the language of the note and the
guaranty, we find that neither document specifies what
consideration has been given in support. To be sure, ...