                                 NOT FOR PUBLICATION WITHOUT THE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

                                                                        A-2250-17T1
                                       2
            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

                                                                            A-2250-17T1
                                         3
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
                                        4
                                       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
                                       5
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).




                                             A-2250-17T1
                    6
             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
                                         7
            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


                                                                            A-2250-17T1
                                         8
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.
                                                                            A-2250-17T1
                                         9
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
                                        10
      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.




                                                                              A-2250-17T1
                                        11
      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


                                                                        A-2250-17T1
                                      12
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


                                                                          A-2250-17T1
                                       13
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.




                                                                               A-2250-17T1
                                         14
      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
                                       15
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
                                        16
            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


                                                                         A-2250-17T1
                                       17
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.




                                                                        A-2250-17T1
                                      18
