MORRIS IMAGING ASSOCIATES, PA VS. ROSA SEMILIA (DC-005061-17, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2250-17T1
MORRIS IMAGING
ASSOCIATES, PA,
Plaintiff-Respondent,
v.
ROSA SEMILIA,
Defendant/Third-Party Plaintiff-Appellant,
v.
MICHAEL HARRISON, ESQ., and
STACY FRONAPFEL, ESQ.,
Third-Party Defendants-Respondents.
__________________________________________
Submitted October 29, 2018 – Decided January 7, 2019
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Morris
County, Docket No. DC-005061-17.
Rosa Semilia, appellant pro se.
Michael S. Harrison, attorney for respondents.
PER CURIAM
This dispute arises from the collection of an outstanding bill for x-rays
and a CAT scan (the services). The patient, defendant Rosa Semilia, appeals
from Special Civil Part orders: granting summary judgment to the provider,
plaintiff Morris Imaging Associates, P.A. (Morris Imaging); and granting
motions dismissing defendant's counterclaim against Morris Imaging and her
third-party complaint against Morris Imaging's legal representatives, Michael
Harrison, Stacy Fronapfel, and the Law Office of Michael Harrison, LLC (the
Law Office); and denying defendant's motion for reconsideration of the
dismissal of her counterclaim and third-party complaint. For the reasons that
follow, we affirm.
I
In November 2016, Semilia received the services at the Morristown
Medical Center emergency room from physicians employed by Morris Imaging.
Prior to the services being rendered, Semilia's husband signed a consent and
payment authorization form on her behalf, which stated, in pertinent part,
I understand and acknowledge that the majority of the
physicians at the Hospital are members of the
Voluntary Medical Staff and are not employees or
agents of the Hospital, but are either independent
contractors or independent practitioners who have been
granted the privilege of using the Hospital's facilities
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for the care and treatment of their patients[, including]
. . . Emergency Department physicians, . . . radiologists,
. . . on call physician[s], and other consultants who may
treat me.
Morris Imaging billed Semilia $499 for the services. After the bill for the
services went unpaid for six months, Semilia received a letter dated May 15,
2017, from Harrison, on behalf of his client Morris Imaging, requesting
payment. The letter stated that it was "not an implied or actual threat of a lawsuit
on the debt" being collected.
Over a month later, Semilia disputed the bill in a letter to Harrison
demanding proof of validity of the debt and warning that any further
communications would "constitute[] a scheme of fraud and inland piracy by
advancing a writing that you know or should know is false[.]" Harrison
promptly responded three days later with a June 16 letter to Semilia, forwarding
her an account statement titled "Morris Imaging Associates, P.A." with an
amount due of $499. The letter informed Semilia that "[i]f payment is not
forthcoming we will institute suit without further notice." About a month
thereafter, the Law Office filed a breach of contract complaint for "Morris
Imaging PA" against Semilia seeking payment of the $499 bill. The complaint
was signed by Harrison and listed Fronapfel, an associate with the Law Office,
as the filing attorney. However, a certification by Fronapfel states that she was
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not working at the Law Office at the time the complaint was filed, nor did she
have anything to do with the filing.
In her answer, Semilia denied breaching a contract with Morris Imaging
and challenged the court's subject matter jurisdiction. Asserting violation of the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692a to 1692p, she
filed a counterclaim against Morris Imaging and a third-party complaint against
the Law Office, Harrison, and Fronapfel. In particular, Semilia alleged: Morris
Imaging injured her with false "material representations"; the Law Office
engaged in misleading and threatening conduct; Harrison and Fronapfel, as debt
collectors, made false representations; and Fronapfel filed a frivolous complaint
against her.
On October 3, 2017, the motion judge granted the Rule 4:6-2(e) motions
by Morris Imaging, and third-party defendants Harrison and Fronapfel,1
dismissing both the counterclaim and third-party complaint with prejudice,
respectively. The judge denied Semilia's motion for reconsideration on
December 1. On December 7, the judge entered an order granting Morris
Imaging's summary judgment motion.
1
In her opposition to the motion to dismiss the counterclaim and third-party
complaint, Semilia consented to the dismissal of her claims against the Law
Office as being a mistakenly named third party.
A-2250-17T1
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II
In appealing the aforementioned orders, Semilia raises the following
arguments in her initial brief: 2
POINT I
THE APPELLATE DIVISION MUST DECIDE
WHETHER THE LOWER COURT RULED
CORRECTLY ON THE LAW OR RULES OF COURT
WHEN IT GRANTED NON-EXISTENT
PLAINTIFF'S MOTION TO DISMISS THE
COUNTERCLAIM, THIRD-PARTY COMPLAINT,
AND GRANTED MOTION FOR SUMMARY
JUDGMENT.
POINT II
THE TRIAL COURT IGNORED THE
REQUIREMENTS OF N.J.S.A. 14A:13-4; N.J.S.A.
14A:4-1; AND N.J.S.A. 14A:13-11.
POINT III
DENIAL OF EQUAL ACCESS TO THE COURT AND
DENIAL OF REMEDY UNDER LAW.
POINT IV
SUMMARY JUDGMENT SHOULD NOT HAVE
BEEN GRANTED WITHOUT A HEARING AND
COMPETENT WITNESS.
2
Semilia's brief does not include the required point headings for her arguments;
we therefore added them for organizational purposes.
A-2250-17T1
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POINT V
DENIAL OF MOTION FOR SUMMARY
JUDGMENT.
POINT VI
DISPUTE OF FACTS; CREDIBILITY ISSUES.
POINT VII
VIOLATION OF HEARSAY RULE AND DICTATES
OF [SELLERS V. SCHONFELD,] 270 N.J. SUPER.
424 (APP. DIV. 1993).
POINT VIII
A LACK OF SUBJECT MATTER JURISDICTION
[RULE] 4:6-2(a).
POINT IX
THE TRIAL COURT ERRED IN FAILING TO
FOLLOW THE PLAIN LANGUAGE OF THE
FDCPA'S PROVISIONS WHERE THE FDCPA
SHOULD HAVE BEEN LIBERALLY CONSTRUED.
POINT X
MICHAEL HARRISON, ATTORNEY AT LAW IS A
"DEBT COLLECTOR" UNDER THE FDCPA AS
WAS CONCLUDED BY THE THIRD CIRCUIT
COURT OF APPEALS IN GRAZIANO V.
HARRISON, 950 F.2d 107 (3d Cir. 1991).
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POINT XI
THE ALLEGED DEBT IS COVERED UNDER THE
FDCPA.
POINT XII
CONDUCT OF COLLECTION LITIGATION.
POINT XIII
FILING THE INSTANT COMPLAINT IS AN
ATTEMPT TO COLLECT A DEBT AND IS
COVERED UNDER FDCPA.
POINT XIV
THE TRIAL COURT ERRONEOUSLY DISMISSED
THE THIRD PARTY COMPLAINT WHERE IN
FACT IT DOES NOT FAIL TO STATE A CAUSE OF
ACTION AGAINST MICHAEL HARRISON, ESQ.,
AND STACY FRONAPFEL.
In her reply brief,3 Semilia argues:
POINT I
PLAINTIFF THROUGH ITS ATTORNEY LIES TO
THE APPELLATE DIVISION.
POINT II
APPELLEES' COUNSEL MICHAEL HARRISON IS
IN VIOLATION OF RPC 3.3 WHERE MICHAEL
HARRISON ON APPEAL KNOWINGLY MAKES
3
Again, we add point headings for her arguments for organization.
A-2250-17T1
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FALSE STATEMENT TO A TRIBUNAL[.] (NOT
ARGUED [BELOW]).
POINT III
APPELLEES' COUNSEL MICHAEL HARRISON IS
IN VIOLATION OF RPC 4.1 (a) (1) WHERE
MICHAEL HARRISON KNOWINGLY ON APPEAL
MAKES A FALSE STATEMENT OF MATERIAL
FACT TO A THIRD PERSON[.] (NOT ARGUED
[BELOW]).
POINT IV
APPELLEES' COUNSEL MICHAEL HARRISON IS
IN VIOLATION OF RPC 8.4 MISCONDUCT[.] (NOT
ARGUED [BELOW]).
Initially, we note that from the record provided it appears the motion judge
made his decisions on the papers without oral argument. The Notice of Appeal
reflects that there is no transcript of the judge's decisions. None of the orders
indicate that the reasons for granting or denying relief were set forth on the
record or in written decisions. Thus, it appears that the judge failed to set forth,
in a meaningful fashion, his factual findings and conclusions of law as required
by Rule 1:7-4.4 Usually, when this is not done, this court's review is impeded
4
Below the judge's signature at the end of the following orders, it is simply
stated: December 1, 2017, – "Defendant has failed to set forth any new facts not
previously raised in her original application. She does not satisfy the criterion
of [Rule] 4:49-2 et seq."; and December 7, 2017, –"Plaintiff is entitled to
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and a remand is necessary. Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div.
2015). However, in this case, to avoid unnecessary litigation delay, we will not
remand because the record provided allows us to determine whether it was
appropriate for the judge to grant summary judgment and dismiss the
counterclaim and third-party complaint for failure to state a cause of action. See
Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4 (2018) (citing
Leeds v. Chase Manhattan Bank, N.A., 331 N.J. Super. 416, 420-21 (App. Div.
2000) (affirming the grant of summary judgment even though order merely
stated "denied")).
Summary Judgment
Semilia argues Morris Imaging's summary judgment motion should have
been denied because a hearing was not provided with competent witnesses
testifying, and there are "very important issues regarding . . . violations of due
process, violations rights [sic] under the state and federal law, equal access to
the courts and credibility issue[s]," which all lead to her "standing and ability to
prosecute [her] complaint." She further contends the court lacked subject matter
jurisdiction over the claim because Morris Imaging is not incorporated in New
judgment as per [Rule] 4:46. There is no genuine issue of material fact." As for
the October 3, 2017 order dismissing the counterclaims and third-party
complaint, there is no statement.
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Jersey and, therefore, is fictitious. These arguments are completely unfounded
and reflect a misunderstanding of the summary judgment process.
When reviewing an order granting summary judgment, we apply "the
same standard governing the trial court." Oyola v. Liu, 431 N.J. Super. 493, 497
(App. Div. 2013). A court should grant summary judgment when the record
reveals "no genuine issue as to any material fact" and "the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2(c). We consider
"whether the competent evidential materials presented, when viewed in the light
most favorable to the non-moving party," in consideration of the applicable
evidentiary standard, "are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A non-moving party "cannot defeat a motion for summary judgment
merely by pointing to any fact in dispute." Ibid. at 541. Thus, "once the moving
party presents sufficient evidence in support of the motion, the opposing party
must 'demonstrate by competent evidential material that a genuine issue of fact
exists[.]'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016) (citing Robbins
v. Jersey City, 23 N.J. 229, 241 (1957)).
A-2250-17T1
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Indeed, "if the opposing party [in a] summary judgment motion 'offers
. . . only facts which are immaterial or of an insubstantial nature, a mere scintilla,
"[f]anciful, frivolous, gauzy or merely suspicious," he will not be heard to
complain if the court grants summary judgment.'" Id. (citing Judson v. Peoples
Bank & Trust Co., 17 N.J. 67, 75 (1954)). "[T]hese general rules . . . without
unjustly depriving a party of a trial, can effectively eliminate from crowded
court calendars cases in which a trial would serve no useful purpose . . . knowing
that a rational jury can reach but one conclusion." Brill, 142 N.J. at 541.
We agree with Morris Imaging that summary judgment was proper as
there was no dispute of material facts and it was entitled to dismissal of the suit
as a matter of law. As evidenced by Morris Imaging's Articles of Incorporation,
the undisputed proofs established that Morris Imaging is a New Jersey
corporation, which rendered services to Semilia at Morristown Medical Center;
therefore, providing the court with subject matter jurisdiction over the dispute.
In addition, undisputed proofs establish that Morris Imaging's physicians
performed services for Semilia which she failed to pay for. Because there were
no disputed issues of material facts, a trial was not necessary, and the judge was
correct in granting summary judgment.
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Motions to Dismiss
Semilia contends that the judge erred in dismissing the counterclaim
against Morris Imaging and the third-party complaint against the Law Office,
Harrison, and Fronapfel. In her counterclaim, she argued that Morris Imaging's
collections complaint was frivolous because she did not enter into a contractual
agreement with the company. She therefore alleged, "[c]ommon [l]aw [f]raud[,]
[c]ommon [l]aw [m]isrepresentaion [a]nd [i]njurious [f]alsehood, [f]raud upon
the [c]ourt" seeking "statutory damages of $1000[] and treble damages in the
amount of $3,000[]." Moreover, she claimed that Morris Imaging violated the
FDCPA. In her third-party complaint, she likewise claimed the third-party
defendants violated her rights under the FDCPA. These contentions are
unpersuasive.
In order for the FDCPA to apply, Semilia must establish there was a debt
communication from a debt collector to a debtor. See 15 U.S.C. § 1692c. There
are two communications in question: letters by Harrison – as counsel for Morris
Imaging – dated May 15, 2017, and June 16, 2017. Neither letter qualifies
Morris Imaging as a "debt collector" under the FDCPA, which is "any person
who uses any instrumentality of interstate commerce or the mails in any business
the principal purpose of which is the collection of any debts, or who regularly
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collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another." 15 U.S.C. § 1692a(6). Morris Imaging
was a creditor seeking payment from Semilia through its counsel for services,
and there is no dispute that the services were provided to Semilia and remained
unpaid. Because under the FDCPA, there was no debt communication and
Morris Imaging is not a debt collector, the statute does not apply in this case.
See FTC v. Check Inv'rs, Inc., 502 F.3d 159, 173 (3d Cir. 2007); Hodges v. Sasil
Corp., 189 N.J. 210, 224 (2007).
Moreover, even if Morris Imaging was a debt collector, nothing in the
record suggests that it harassed, oppressed, or abused Semilia, 15 U.S.C. §
1692d; used false, deceptive, or misleading representations to collect their debt,
15 U.S.C. § 1692e; or used unfair or unconscionable means to collect their debt,
15 U.S.C. § 1692f. Thus, the counterclaim against it was properly denied.
As for Harrison, his initial communication with Semilia provided her with
a debt collection notice that indicated: the amount of debt owed, 15 U.S.C. §
1692g(a)(1); the name of the creditor to whom the debt is owed, 15 U.S.C. §
1692g(a)(2); informed her that he is a debt collector and it was "not an implied
or actual threat of a lawsuit on the debt. . . ," 15 U.S.C. § 1692g(a)(3); and a
statement that, upon Semilia's written request within the thirty-day period, he
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will provide the name and address of Morris Imaging, 15 U.S.C. § 1692g(a)(5).
The notice also contained a statement of legal rights which included "if [Semilia]
notif[ies] this office, in writing, within thirty (30) days after [her] receipt of this
notice[,] that [she] dispute[s] the debt or any portion thereof, this office will
obtain verification of the debt" and mail it to her. See 15 U.S.C. § 1692g(a)(4).
The notice did not mention any credit bureaus, threaten adverse credit reporting
or lawsuits, and was generally polite. Thereafter, as noted previously, Semilia
disputed the bill, Harrison promptly responded within three days, and suit was
filed against Semilia two months later.
Harrison's conduct did not give rise to an actionable claim because even
the least sophisticated debtor would know, based on the language contained in
the initial notice, this was not a lawsuit but a pre-lawsuit action to collect a debt.
See Jensen v. Pressler & Pressler, 791 F.3d 413, 420 (3d Cir. 2015). The notice
was clear and included information required under the FDCPA. See 15 U.S.C.
§ 1692g(a). Moreover, neither of Harrison's letters were misleading. They were
on his law firm's official letterhead and they explicitly notified Semilia that this
was not a legal process and that Harrison was a debt collector assigned to collect
a debt.
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The only questionable violation was in the second letter that failed to state
when a suit would be instituted if payment was not received. Even so, Harrison
provided Semilia with the validation of the debt as requested and required under
15 U.S.C. § 1692g(b). There is nothing, however, indicating that she took any
action during the two months between the receipt of the letter and the filing of
the complaint. As stated previously, the debt is valid based upon the record.
Hence, Harrison was properly dismissed as a third-party defendant.
The same can be said with respect to Fronapfel. Just because she may
have filed the complaint against Semilia on behalf of the Law Firm is not
abusive. As the Sixth Circuit recognized,
"the filing of a debt-collection lawsuit without the
immediate means of proving the debt does not have the
natural consequence of harassing, abusing, or
oppressing a debtor. Any attempt to collect a defaulted
debt will be unwanted by a debtor, but employing the
court system . . . cannot be said to be an abusive tactic
under the FDCPA."
Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 330-
31 (6th Cir. 2006).
Further, because a debt collector is responsible for "the activities of those it
enlists to collect debts on its behalf," Marucci v. Cawley & Bergmann, LLP, 66
F. Supp. 3d 559, 564 (D.N.J. 2014) (quoting Pollice v. Natl. Tax Funding, L.P.,
225 F.3d 379, 405 (3d Cir. 2000)), thus Fronapfel, as an associate of the Law
A-2250-17T1
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Office, would be immune from liability under the FDCPA. Accordingly, we
conclude there was no error in dismissing the third-party complaint against
Fronapfel.
We next turn to the judge's order denying Semilia's motion for
reconsideration of the orders dismissing the counterclaim and third-party
complaint. Semilia argued: (1) "[p]laintiff's/[t]hird [p]arty [d]efendants' Notice
of Motion fails to schedule the return date[,]" and the court made a "rush to
judgment" and violated due process by not considering her opposition; (2) the
court "failed to notify [her] of the October 3, 2017[,] return date[, a]s required
by the court rules . . . "; and (3) "the [c]ourt procedurally err[ed] by issuing [the]
October 3, 2017 order to dismiss . . . because the statements contained in
counsel's [b]rief . . . could [not] and should [not] have been considered . . . since
these statements were not attested to by counsel in a certification[.]" As noted
previously, the judge rejected these arguments on the basis that Semilia "failed
to set forth any new facts not previously raised in her original application [, and
therefore,] [s]he does not satisfy the criterion of [Rule] 4:49-2 et seq."
When we consider a trial judge's denial of a Rule 4:49-2 motion for
reconsideration, we have determined:
Reconsideration itself is a matter within the sound
discretion of the [c]ourt, to be exercised in the interest
A-2250-17T1
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of justice[.] It is not appropriate merely because a
litigant is dissatisfied with a decision of the court or
wishes to reargue a motion, but should be utilized only
for those cases which fall into that narrow corridor in
which either 1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or
2) it is obvious that the [c]ourt either did not consider,
or failed to appreciate the significance of probative,
competent evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
Div. 2010) (citation omitted).]
Therefore, we will not disturb a judge's denial of a motion for reconsideration
absent an abuse of discretion. See id. at 289.
Our review of the record reveals that there was no new information or any
evidence that would significantly change the outcome of the motion. Semilia
merely recites the same arguments she previously made in the original
counterclaim and third-party complaint. Hence, we see no reason to disturb the
judge's order denying reconsideration.
R.P.C. Claims
In Points II, III, and IV of her reply brief, Semilia contends Harrison
violated various provisions of the Rules of Professional Conduct. Since these
contentions were not raised before the motion judge will not be considered on
appeal because they do not "'go to the jurisdiction of the trial court or concern
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matters of great public interest.'" Zaman v. Felton, 219 N.J. 199, 226-27 (2014)
(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Lastly, as for any of Semilia's arguments not expressly discussed above,
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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