J-S59031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHERINE S. GARGES 

Appellant

v.

GENISYS CREDIT UNION, CUMIS 

INSURANCE SOCIETY, INC., LARRY 

S. EISMAN, KANTROWITZ & 

PHILLIPPI, LLC, STEVEN B. 

KANTROWITZ

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1196 EDA 2019

Appeal from the Order Entered March 20, 2019

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): No. 2016-29578

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 06, 2020

Kathryn S. Garges appeals from the entry of summary judgment in favor 

of Genisys Credit Union, Cumis Insurance Society, Inc., Larry S. Eisman, 

Kantrowitz & Phillippi, LLC, and Steven B. Kantrowitz (“Appellees”). Garges 

claims the court erred in granting Appellees’ motions for summary judgment 

on her Dragonetti Act1 and abuse of process claims. We affirm.

Garges’ claims arise from a prior action that USA Federal Credit Union 

(“Credit Union”)2filed against her (“Underlying Action”). Garges had three 

accounts with the Credit Union—a Credit Card Account, a “Kwik Draw Line of 

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1 42 Pa.C.S.A. §§ 8351–55.

2 Genisys Credit Union is the successor in interest to USA Federal Credit Union.
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Credit,” and a vehicle loan. In 2002, after Garges missed payments on the 

credit card and Kwik Draw Line of Credit, Garges and the Credit Union 

exchanged communications in an effort to reach an agreement underwhich

Garges could pay off the two accounts. In the 2002 communications, Garges 

admitted that she was unable to repay the loans, and sought alternate 

payment schedules. See, e.g., Motion for Summary Judgment of Defendant 

Credit Union at Exh. G, Letter from Garges to Eisman dated Dec. 13, 2002 

(stating that Garges’ accounts had been past due for a “year or so”). Also in 

2002, the Credit Union repossessed Garges’ vehicle. Answer with New Matter 

of Credit Union, filed Aug. 10, 2017, at ¶ 15.

In 2005, the Credit Union filed a Complaint, asserting Garges was 

delinquent in payment on the two credit obligations. The Complaint sought 

$11,156.14. Larry S. Eisman, Esquire, represented the Credit Union and 

signed the Complaint. 

Garges filed an Answer with New Matter and Counterclaim. Steven B. 

Kantrowitz, of the firm Kantrowitz & Phillippi, LLC, entered an appearance on 

behalf of the Credit Union on the Counterclaim. In the Answer, Garges stated 

that she “made many timely payments” but admitted that she “did not repay 

the entire ending balance on either” account. USA Fed. Cred. Union v. 

Garges, No. 2005-02231, Defendant’s Answer to Plaintiff’s Complaint , New 

Matter, and Counterclaim, at ¶ 4. In her New Matter, Garges averred that she 

had not received any correspondence or telephone calls from the Credit Union 

since December 2002, and had not received any statements since February 
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2003. She further asserted counterclaims against the Credit Union claiming 

that the Credit Union’s conduct: violated the commercial standard of fair 

dealing applicable to contracts involving secured transactions under the 

Pennsylvania Uniform Commercial Code; constituted unfair or deceptive debt 

collection practices in violation of the Pennsylvania Fair Credit Extension 

Uniformity Act; and violated the Pennsylvania Unfair Trade Practices and 

Consumer Protection Law.

Both sides filed dispositive motions. In July 2008, the trial court granted 

the Credit Union’s motion for summary judgment on Garges’ Counterclaims

and denied Garges’ cross motion for summary judgment.

The docket for the Underlying Action contains some discovery motion 

practice in the summer of 2009, but then no activity from October 2009 

through October 2014. Trial Court Opinion, filed July 2, 2019, at 2 (“1925(a) 

Op.”). In October 2014, the trial court issued a Notice to Terminate pursuant 

to Local Rule 1901 of the Montgomery County Local Rules of Judicial 

Administration. The Notice informed the parties that the court intended to 

terminate the case for lack of docket activity for at least two years, but that it 

would not terminate the case if any party filed a statement of intention to 

proceed within 60 days. No party filed a statement of intention to proceed. 

On January 5, 2015, the court marked the case “terminated” on the 

docket. On January 20, 2015, Garges filed a petition to reinstate, seeking to 

reinstate her counterclaim or, in the alternative, all claims. The trial court 
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denied the petition to reinstate, and this Court affirmed. The Pennsylvania 

Supreme Court denied a petition for allowance of appeal. 

In December 2016, Garges filed a Complaint in the present action. In 

July 2017, she filed an Amended Complaint, in which she asserted various 

claims including a wrongful initiation of civil proceedings claim under the 

Dragonetti Act against Genisys and Eisman, a wrongful continuation and use 

of legal proceedings under the Dragonetti Act against all Appellees, and a 

common law abuse of process claim against all Appellees.3

In support of her Dragonetti Act claim against the Credit Union and 

Eisman, Garges claimed the Credit Union filed the Underlying Lawsuit for the 

improper purpose of obtaining money from Garges that she did not owe. She 

also contended that the suit was in retaliation for her 2002 objections to 

allegedly unlawful conduct, and that Eisman knew or should have known the 

lawsuit was initiated for an improper purpose. In support of her Dragonetti 

Act claim against all Appellees, Garges claimed, inter alia, that Appellees knew 

or should have known within a reasonable time of the filing of her Answer with

New Matter and Counterclaim that the Credit Union lacked probable cause for 

its claims and Appellees acted with gross negligence and without probable 

cause in continuing the lawsuit. Garges further claimed that Appellees’ actions

constituted an abuse of process.

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3 Garges also asserted claims of malicious misuse of civil proceedings, libel, 

slander, and false light publicity. See Amended Complaint, at ¶¶ 80-103. The 

trial court granted summary judgment as to these claims, and Garges does 

not challenge the summary judgment order as to these claims on appeal. 
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Her Amended Complaint also included allegations that Appellees refused 

to dismiss or withdraw their claims in 2015, asserting that if they had done so 

she could have appealed the order granting summary judgment as to her 

counterclaims. She further claims that the parties entered settlement 

discussions in 2015, but that a claim’s adjuster for Kantrowitz “insisted that 

Garges resubmit her complete evidence and legal arguments in the Lawsuit to 

the claims adjuster.” Amended Complaint at ¶ 43. 

In January 2019, Appellees filed motions for summary judgment and 

Garges filed a partial motion for summary judgment. In March 2019, the trial 

court granted Appellees’ motions and denied Garges’s motion, and entered 

summary judgment in favor of Appellees on all claims. Garges filed a timely 

notice of appeal. 

Garges raises the following issues on appeal:

1. Did the court err, as a matter of law or because there 

were genuine contested material issues of fact, in denying 

Garges’s partial motions for summary judgment under the 

Dragonetti Act against the Credit Union for procurement and 

initiation of the underlying action and against Eisman for 

initiation of the underlying action, and in granting each of 

[Appellees’] motions for summary judgment on the same 

claims?

2. Did the court err, as a matter of law or because there 

were genuine contested material issues of fact, in denying 

Garges’s partial motions for summary judgment against 

each of the Credit Union, Eisman, the Insurance Company, 

the Kantrowitz firm, and Kantrowitz for continuation and use 

of the underlying action in violation of the Dragonetti Act, 

and in granting each of [Appellees’] motions for summary 

judgment on the same claims?
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3. Did the court err, as a matter of law or because there 

were genuine contested material issues of fact, in granting 

the motions for summary judgment of each of the Credit 

Union, Eisman, the Insurance Company, the Kantrowitz 

firm, and Kantrowitz against Garges’s claims for common 

law abuse of process in the underlying action?

Garges’ Br. at 3-4.

Garges challenges the grant of summary judgment. “[S]ummary 

judgment is only appropriate in cases where there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law.” 

Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018) (citing Pa.R.Civ.P. 

1035.2(1)). “When considering a motion for summary judgment, the trial 

court must take all facts of record and reasonable inferences therefrom in a 

light most favorable to the non-moving party and must resolve all doubts as 

to the existence of a genuine issue of material fact against the moving party.” 

Id. We reverse a grant of summary judgment if there has been an error of 

law or an abuse of discretion. Id. at 892. Because the issue of whether there 

is a genuine issue of material fact is a question of law, our standard of review 

is de novo and our scope of review is plenary. Id.

In her first two issues, Garges claims that the court erred in granting 

summary judgment as to her Dragonetti claims.

The Dragonetti Act provides as follows:

(a) Elements of action.—A person who takes part in the 

procurement, initiation or continuation of civil proceedings 

against another is subject to liability to the other for 

wrongful use of civil proceedings [if]:

(1) he acts in a grossly negligent manner or without 

probable cause and primarily for a purpose other than 
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that of securing the proper discovery, joinder of 

parties or adjudication of the claim in which the 

proceedings are based; and

(2) the proceedings have terminated in favor of the 

person against whom they are brought.

42 Pa.C.S.A. § 8351(a).

To establish a claim under the Dragonetti Act, a plaintiff must prove all 

of the following:

(1) The defendant has procured, initiated, or continued the 

civil proceedings against him.

(2) The proceedings were terminated in his favor.

(3) The defendant did not have probable cause for his 

action.

(4) The primary purpose for which the proceedings were 

brought was not that of securing the proper discovery, 

joinder of parties or adjudication of the claim on which the 

proceedings were based.

(5) The plaintiff has suffered damages as set forth in section 

8353.

Perelman v. Perelman, 125 A.3d 1259, 1263-64 (Pa.Super. 2015) (quoting 

42 Pa.C.S.A. § 8354).

Probable cause for the procurement, initiation, or continuation of civil 

proceedings exists if the defendant “reasonably believe[d] in the existence of 

the facts upon which the claim is based,” and either:

(1) reasonably believes that under those facts the claim may 

be valid under the existing or developing law;

(2) believes to this effect in reliance upon the advice of 

counsel, sought in good faith and given after full disclosure 

of all relevant facts within his knowledge and information; 

or
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(3) believes as an attorney of record, in good faith that his 

procurement, initiation or continuation of a civil cause is not 

intended to merely harass or maliciously injure the opposite 

party.

Id. at 1264 (quoting 42 Pa.C.S.A. § 8352). Further, “an action for wrongful 

use of civil proceedings pursuant to the Dragonetti Act does not require a 

prima facie showing of actual malice, but such action requires proof that the 

defendant acted in a grossly negligent manner.” Id. (quoting Hart v. 

O'Malley, 781 A.2d 1211, 1218 (Pa.Super. 2001)). 

In her first issue, Garges claims the trial court erred in granting 

summary judgment as to her Dragonetti Act claim against the Credit Union 

and Eisman. She argues that although she admitted she owed debt in 2002, 

she did not admit that she owed debt in 2005. She claims the Credit Union 

and Eisman filed with the complaint, and produced in discovery, falsified 

versions of the card terms and conditions. She further claims that her car was 

damaged during repossession and, although she had not known it had been 

damaged, Appellees should have been aware. She further claims the Credit 

Union “waived by laches and estoppel all amounts it claimed were owing by 

deliberately ceasing collection activity and communications with Garges other 

than sending Garges quarterly statements which showed no balances owing 

and purporting to be statements of all her accounts.” Garges’ Br. at 22. Garges 

states Eisman’s actions did not have a reasonable basis in law or fact because 

they included making a record of false documents, and he verified the 

Complaint and discovery on his own knowledge, not on good faith belief that 

he relied on his client. Garges notes that the Credit Union failed to withdraw 
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or proceed with the case, and did not attempt to meet its burden of proof in 

arbitration. Garges further claims the trial court opinion “implicitly credits 

[Appellees’] stated defense” that they decided not to proceed because it 

became apparent any judgment would be uncollectible due to lack of assets. 

Id. at 25. She claims there was no evidence to support this defense. 

The trial court concluded Garges failed to come forward with evidence 

sufficient to create a genuine dispute as to whether Appellees, including the 

Credit Union and Eisman, acted in a grossly negligent manner or without 

probable cause. It found that the Credit Union’s collection complaint was 

supported by probable cause, noting Garges admitted she had outstanding 

accounts with the Credit Union and never asserted she paid them in full. 

1925(a) Op. at 6. The court noted that Garges “contended she was relieved 

of any obligation to pay them, primarily for three reasons—that [the Credit 

Union] was unable to produce documentation related to the accounts, that Ms. 

Garges debts were fully satisfied because her vehicle was damaged during 

repossession by [the Credit Union], and that [the Credit Union] had waived its 

right to collect the balances due by discontinuing the sending of periodic 

statements and/or by sending statements showing zero balances.” Id. at 6-

7. The court concluded that “these arguments are not so clearly dispositive as 

to establish that [Appellees] acted in a grossly negligent manner or without 

probable cause in pursuing and continuing” the collection action. Id. at 7. 

The trial court stated the following as to the defenses:
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First, Ms. Garges argues that [Appellees] lacked probable 

cause or were grossly negligent because they failed to 

produce in the Underlying Action certain documentation 

relating to the credit accounts. This failure does not 

establish that [the Credit Union’s] claims were wholly 

lacking in merit. Ms. Garges did not deny the existence of 

the accounts and did not assert that she had paid them in 

full. [The Credit Union] could readily have established its 

claim without such documentation—for example, by

showing that Ms. Garges made periodic charges on her 

credit card account or specific draws on her line of credit.

Next, Ms. Garges argues that [Appellees] lacked probable 

cause to pursue the Underlying Lawsuit because of alleged 

damage caused to her car when [the Credit Union]

repossessed it. Specifically, Ms. Garges contends that [the 

Appellees] were aware 

that there was possible damage to Garges’s car 

caused in course of the repossession but did not 

pursue this information and therefore never met 

[their] legal obligation to obtain the true value on sale 

of the car, which created an unrebutted presumption 

under applicable law that nullified any legal right to 

claim amounts owing on [their collection] claim." [Pl. 

Garges's Br. in Supp. of Her Mot. for Partial Summ. it. 

Against Def Genisys Credit Union [hereinafter, 

"Garges Br."], at 20.]

Despite this contention, Ms. Garges failed to present 

evidence, in either the Underlying Action or the present 

case, that her car was damaged during its repossession. 

More importantly, the contention that any such damage 

would create a "presumption" that all debts owed by her to 

USA were somehow “nullified” lacks any legal support and 

is contrary to common sense.5

5 While Ms. Garges could have plausibly argued that 

her indebtedness was reduced by the monetary 

amount of any damage caused to the vehicle, that is 

not the argument that she made in the Underlying 

Action or the present case.

Finally, Ms. Garges argues that [the Credit Union]

"deliberately ceased collection activity and communications 

with Garges after January, 2003, other than sending Garges 
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quarterly statements which showed no balances owing and 

purported to be statements of all her accounts, which 

waived any rights by laches and estoppel." (Garges Br., at 

20-21.) As noted [above], Ms. Garges acknowledged in the 

Underlying Action that she had not paid her accounts with 

[the Credit Union] in full. She thus does not assert that the 

zero-balance statements sent by [the Credit Union] were 

accurate. Rather, she contends that by sending such 

statements, [the Credit Union] waived its right to collect the 

unpaid amounts. Ms. Garges cites no authority to support 

her waiver argument. To the contrary, if Ms. Garges was 

aware, as she apparently acknowledges, that the 

statements were not accurate, then there is no basis for her

to argue that she was somehow lulled into complacency or 

that [the Credit Union] otherwise waived its right to collect 

the balance actually owed. In short, this defense, like Ms. 

Garges' other defenses, is not so clearly dispositive as to 

support a claim of gross negligence or lack of probable cause 

on the part of [Appellees].

It is also relevant that Ms. Garges filed a Cross-Motion for 

Summary Judgment in the Underlying Action, seeking 

dismissal of [the Credit Union’s] claims against her, and that 

the Cross-Motion was denied. (Genisys Mot., Ex. J, L.) 

Although it is not clear whether the denial of a defendant’s 

motion for summary judgment establishes per se that there 

was probable cause to pursue the claim against the 

defendant, the Superior Court has made clear that such 

denial of summary judgment is an important factor in 

making the probable-cause determination. See Meiskin v. 

Howard Hanna Co., 590 A.2d 1303, 1307 (Pa. Super 

1991) (holding that existence of probable cause was 

“confirmed” by denial of summary judgment in the 

underlying action).

1925(a) Op. at 7-9.

We agree with the trial court’s analysis and its finding that no genuine 

issues of material fact exists, and conclude the trial court did not err or abuse 

its discretion. As outlined by the trial court, the evidence establishes Appellees 
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did not act in a grossly negligent manner or without probable cause in initiating 

the underlying lawsuit.

In her second issue, Garges argues that the trial court erred because its 

analysis of the Dragonetti Act did not separate her claims in Count 1 of her 

Complaint, which dealt with the initiation of the lawsuit, from Count III, which 

dealt with continuation of the lawsuit. She claims Appellees made “at least 

four separate decisions not to withdraw the claims prior to their dismissal.” 

Garges’ Br. at 28. Garges claims the Credit Union “knew there was unusual 

inactivity on its claims and that Eisman was delaying and trying to coerce 

settlement and that the inactivity was tied to Garges’s ability to appeal the 

interlocutory summary judgment order against her counterclaims.” Id. at 30. 

She claims the insurance company worked with Kantrowitz to “deliberately 

deceive Garges and discourage her appeal and attempts to settle the case by 

ambiguous representations of authority to settle the Dragonetti Act claims, 

and by requiring that Garges re-submit all her evidence and legal arguments 

to the claims adjustor in order to discuss settlement.” Id. at 31.

This claim is meritless. As discussed above, the Underlying Action was 

supported by probable cause and Appellees did not act with gross negligence 

in initiating, and continuing to pursue, the claims. That Garges raised 

affirmative defenses does not alter this. Further, that the Credit Union did not 

dismiss or withdraw its claims does not impact the analysis here, as probable 

cause supported the initiation and continuation of the proceedings.
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In her third claim, Garges argues the trial court erred in granting 

summary judgment on her common law abuse of process claim. She argues 

she presented sufficient evidence to show Appellees violated the legal process 

standard for an improper purpose, including “coercing [her] into paying money 

she did not legally owe, harassing and maliciously injuring Garges, avoiding 

exposure of falsehoods and false documentation, coercing settlement, and 

preventing Garges from obtaining consideration of the merits of her 

counterclaim.” Garges Br. at 35. She claims the Credit Union and its attorneys

“refused to withdraw or agree to dismissal of its claims” and “continued to act 

to achieve its improper purposes by opposing Garges throughout he 

attempted appeal.” Id. at 36. She claims that, contrary to the court’s 

conclusion, she did not have a way to force the case to proceed. She argues 

Appellees told her that they were going to proceed. She also notes that the 

Appellees did not agree to dismiss the case in the settlement conference that 

occurred after she filed her motion to reinstate. 

To establish a claim for abuse of process, the plaintiff must show that 

the defendant “(1) used a legal process against the plaintiff, (2) primarily to 

accomplish a purpose for which the process was not designed; and (3) harm 

has been caused to the plaintiff.” P.J.A. v. H.C.N., 156 A.3d 284, 288 

(Pa.Super. 2017) (quoting Werner v. Plater–Zyberk, 799 A.2d 776, 785 

(Pa. Super. 2002)). “Abuse of process is, in essence, the use of legal process 

as a tactical weapon to coerce a desired result that is not the legitimate object 

of the process.” Id. (quoting Werner, 799 A.2d at 785). Further, “the 
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gravamen of this tort is the perversion of legal process to benefit someone in 

achieving a purpose which is not an authorized goal of the procedure in 

question.” Id. (quoting Werner, 799 A.2d at 785).

The trial court concluded that the Credit Union is not liable for abuse of 

process where it chose to allow the case “die a natural death through 

administrative termination,” rather than discontinuing the case. 1925(a) Op. 

at 10. It pointed out that Garges could have “invoked procedures to achieve 

an earlier disposition of [the Credit Union’s] claims.” Id. She could have 

sought consent to the filing of a trial praecipe, and, if the Credit Union refused, 

could have sought a conference and requested the case be deemed ready for 

trial. Id. Alternately, she could have sought dismissal for lack of prosecution 

by filing a motion for non pros. Id. The court concluded that “Garges is not 

faulted for failing to move the case forward. But she cannot argue that [the 

Credit Union], in an abuse of legal process, delayed her ability to appeal from 

a final judgment when she had the means available to move the case forward 

herself.” Id. at 10-11.

We agree, and conclude the trial court did not err or abuse its discretion. 

Garges has not established a genuine issue of material fact regarding any 

element of the abuse of process claim.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/20