Palepu, S. v. Bondi, R. , 156 A.3d 296 ( 2017 )

J-A26029-16
2017 Pa. Super. 35
SHOWRI PALEPU, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD BONDI, M.D. : No. 458 WDA 2016
Appeal from the Order March 2, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): No. GD-14-001811
BEFORE: BENDER, P.J.E., RANSOM,J. and, MUSMANNO, J.
OPINION BY RANSOM, J.: FILED FEBRUARY 14, 2017
Showri Palepu, M.D. (Appellant) appeals from the order entered on
March 2, 2016, which granted Appellee’s motion for summary judgment. We
affirm.
In 2012, Barbara Moore, R.N. was a staff nurse at UPMC McKeesport
as she had been for approximately thirty-five years. Moore Dep., 6/29/15,
10:7-17. Toward the end of 2012, an incident occurred in the operating
room between Ms. Moore and Appellant, surgeon. Id. at 11:2-14.
According to Ms. Moore, Appellant made a disparaging remark about her
age. Id. Following the operation, Ms. Moore informed another nurse that
Appellant upset her; Ms. Moore further discussed the incident with her
supervisor, Gina Ruggieri. Id. at 30:17-21. Richard Bondi, M.D. (Appellee),
through his role as Chairman of the Department of Surgery at UPMC
McKeesport, learned of the incident between Appellant and Ms. Moore.
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Bondi Dep., 3/20/15, 27:1-12. Appellee spoke to Ms. Ruggieri who
confirmed that Ms. Moore had reported the incident. Id. at 30:11-16. In
February of 2013, Appellee attended a peer review committee meeting at
which he relayed to the committee the incident as reported to him. Id. at
37:12-17, 45:18-22.
In April 2014, Appellant filed a complaint alleging that the statement
made by Appellee to the peer review committee placed Appellant in a false
light and constituted defamation and injurious falsehood. Following
preliminary objections, Appellant filed an amended complaint. The court
permitted Appellant to file a second amended complaint to which Appellee
filed another set of preliminary objections. The trial court granted the
preliminary objections in part, permitting Appellant to proceed on two
claims, defamation and injurious falsehood.
Following discovery, in August 2015, Appellee filed a motion for
summary judgment. In response to Appellee’s motion for summary
judgment, Appellant conceded that:
(1) Nurse Moore believed Appellant made a disparaging
remark about her age; and
(2) Ms. Ruggieri confirmed the reported incident to Appellee.
Resp., 12/9/15, ¶¶ 37, 43, 73.
The trial court issued a Memorandum granting Appellee’s motion for
summary judgment. In March 2016, Appellant filed a motion for
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reconsideration, which was denied by the court. Appellant timely filed a
notice of appeal and raised the following issue:1
Whether the trial court erred in granting summary judgment
where the plaintiff submitted evidence of facts which in a jury
trial would require issues to be submitted to a jury.
Appellant’s Brief at 4.2
Appellant contends the trial court erred in granting Appellee summary
judgment. In reviewing a grant of summary judgment, an appellate court
may disturb the order of the trial court only where there has been an error
of law or a clear abuse of discretion. Albright v. Abington Memorial
Hosp., 696 A.2d 1159, 1165 (Pa. 1997) (citing Shomo v. Scribe, 686 A.2d
1292, 1294 (Pa. 1996)).
The moving party has the burden of proving the nonexistence of
any genuine issues of material fact. The record must be viewed
in the light most favorable to the non-moving party, and all
doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party.
Kleban v. Nat’l Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 42 (Pa.
Super. 2001).
____________________________________________
1
The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
2
Appellant’s statement of the question presented is vague. Nevertheless,
Appellant’s brief provides detail sufficient to enable meaningful appellate
review. See, e.g., Commonwealth v. Wheaton, 598 A.2d 1017, 1018 n.1
(Pa. Super. 1991).
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However,
the rule explicitly states that a non-moving party may not avoid
summary judgment by “rest[ing] upon the mere allegations or
denials of his pleading…” See Pa. R.C.P. No. 1035(d).
Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). The scope of
review of a trial court’s order disposing of a motion for summary judgment is
plenary. Albright, 696 A.2d at 1165.
Essentially, Appellant rejects Appellee’s assertion of privilege under the
Peer Review Protection Act.3 See Appellant’s Brief at 21-22; 63 P.S. §
425.3. According to Appellant, Appellee’s statement to the peer review
committee was knowingly false. See Appellant’s Brief at 14. In finding
otherwise, Appellant asserts, the trial court usurped the role of the fact
finder by making credibility determinations not properly resolved at
summary judgment. See id. at 24. Thus, according to Appellant, summary
judgment was not properly granted. See id. at 28.
The Peer Review Protection Act provides, in pertinent part:
(a) Notwithstanding any other provision of law, no person
providing information to any review organization shall be
held, by reason of having provided such information, to
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3
Appellant also rejects Appellee’s assertion of privilege under common law.
See Appellant’s Brief at 22; see also, e.g., Miketic v. Baron, 675 A.2d
324, 330 (Pa. Super. 1996) (recognizing that “[a] publication is conditionally
privileged if the publisher reasonably believes that the recipient shares a
common interest in the subject matter and is entitled to know”). In light of
our disposition, we need not reach Appellee’s common law defense.
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have violated any criminal law, or to be civilly liable under
any law, unless:
…
(2) such information is false and the person providing such
information knew, or had reason to believe, that such
information was false.
63. P.S. § 425.3(a). Thus, Appellee is immune from liability unless he
deliberately provided the committee with false information. Cooper v. Del.
Valley Med. Ctr., 630 A.2d 1, 8 (Pa. Super. 1993); see also, 63. P.S. §
425.3(a)(2).
From Nurse Moore’s deposition testimony, it is clear that an age-
related incident occurred between her and Appellant. See Moore Dep., at
30:17-19, 34:8-9. Nurse Moore’s interpretation of the statements was
reported up the chain to Appellee, who relied on that information when he
spoke to the peer review committee. Appellee had no reason to know or
believe the information was false. Even if Appellant’s assertion that Nurse
Moore misunderstood the comments is correct, Appellee is still protected by
the Peer Review Protection Act. Moreover, we note that Appellant has
conceded that he does not know whether Appellee falsified his statements
before the peer review committee. See Resp. at ¶ 82; Palepu Dep., 3/915,
152:18-23.
Appellant submitted no evidence to support a finding that Appellee
knew or should have known that the information provided to the peer review
committee was not true. To the contrary, Appellant conceded facts essential
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to Appellee’s assertion of privilege. It is undisputed that: (1) Appellee did
not concoct the age related incident between Ms. Moore and Appellant; (2)
Appellee was not offering his own account of the incident; and (3) he was
merely relaying the information reported to him in his capacity as Chairman
of the Department of Surgery. Resp., at ¶¶ 37, 43, 73.
Appellant conceded material facts in his response to Appellee’s motion
and submitted no evidence that an issue of material fact exists. Therefore,
Appellant failed to meet his burden in response to the motion for summary
judgment. Ertel, 674 A.2d at 1042. Thus, the trial court acted correctly in
granting summary judgment in favor of Appellee.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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