Babb, T. v. Geisinger Clinic ( 2015 )

J-A03023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERRENCE E. BABB, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GEISINGER CLINIC; PENN STATE
GEISINGER HEALTH SYSTEM
Appellee No. 981 MDA 2014
Appeal from the Order entered February 24, 2014
In the Court of Common Pleas of Centre County
Civil Division at No: 98-1195
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 03, 2015
This case returns to this Court following our decision to remand the
case to the Court of Common Pleas of Centre County (“trial court”) for
further proceedings. On remand, the trial court issued an order granting
summary judgment in favor of Appellee Geisinger Clinic (“Geisinger”).
Appellant Terrence E. Babb, M.D. (“Dr. Babb”), appeals from the February
24, 2014 order granting summary judgment to Geisinger. Upon review, we
affirm in part, reverse in part, and remand this matter to the trial court for
further proceedings.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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As summarized by a previous panel of this Court, the relevant facts
and procedural history underlying this appeal, viewed in the light most
favorable to Dr. Babb, are as follows.
In June 1995, Geisinger offered, and Dr. Babb accepted,
employment as a staff physician for their OB/GYN Clinic in State
College.[FN.1] Dr. Babb commenced his employment on
September 1, 1995. At around the same time, Dr. Oliver was
also hired as a staff physician for the OB/GYN Clinic. In July
1996, Geisinger hired Dr. Chmielewski as a third staff physician
at the Clinic. Over time, the working relationship between Dr.
Babb and his two colleagues deteriorated. Dr. Babb made
professional complaints against Dr. Chmielewski. Subsequently,
Dr. Oliver, Dr. Chmielewski and others made professional
complaints against Dr. Babb. Pursuant to a routine annual
performance review process, Dr. Babb was recommended for
reappointment. However, the discord and additional targeted
performance reviews culminated in Geisinger’s decision to
terminate Dr. Babb’s employment.
[FN.1] The parties dispute whether Dr. Babb was a
contract or at-will employee.
To that end, on or about May 16, 1997, Dr. Charles Maxin,
Senior Vice President for Clinical Operations, and Dr. David
Wolfe, Medical Director for Geisinger Medical Group, met with
Dr. Babb and requested his resignation. Dr. Babb refused to
resign and he was fired that same day. The termination was
confirmed by letter dated May 19, 1997, which indicated in part
that quality of care concerns were at issue. Accordingly, Dr.
Babb was afforded a hearing pursuant to Geisinger’s Peer Review
Fair Hearing Plan (Fair Hearing Plan) rather than the Involuntary
Review Process otherwise provided for by Geisinger’s employee
policy # 412. By letter dated June 17, 1997, Counsel for
Geisinger advised Dr. Babb of the reasons for termination and
advised him of his procedural rights under the Fair Hearing Plan.
The Fair Hearing proceeded with five sessions from
November 17, 1997 to February 16, 1998. During the
proceedings, several witnesses testified and exhibits were
presented. Dr. Babb’s counsel cross-examined the witnesses.
Dr. Babb did not present any additional witnesses on his own
behalf. On March 20, 1998, the Hearing Committee made the
following findings.
III. FINDINGS
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1. The evidence supported the allegation that
Dr. Babb had been unable to work cooperatively and
effectively with his colleagues and office staff.
2. The evidence supported the allegations that
Dr. Babb was constantly delinquent in his record
keeping, possibly altered medical records, failed to
abide by the offices’ “lab pending” policy and failed
consistently and properly to maintain and document
his medical charts.
3. The evidence supported the allegations
(with respect to certain medical charts brought to
the attention of the committee), that irregularity in
medical care provided by Dr. Babb occurred
including, failure to properly diagnose, performance
of inappropriate operative procedures, lack of proper
pre-operative evaluation in urological procedures and
antiquated approaches to pelvic examinations.
4. Based on Findings 2 and 3 above, the
Committee concludes that Dr. Babb’s conduct had an
adverse impact on patient care.
Geisinger Defendants’ Motion for Summary Judgment, 12/10/10,
Exhibit J, Report of Hearing Committee at 7 (emphasis in
original). The Clinical Practice Committee, in a letter dated May
28, 1998, accepted the Fair Hearing Committee’s findings and
affirmed Dr. Babb’s termination.
As a consequence of the Fair Hearing results, Geisinger
submitted a mandated National Practitioner Data Bank (“NPDB”)
Report on June 2, 1998. See Jacksonian v. Temple
University Health System Foundation, 862 A.2d 1275, 1278
(Pa. Super. 2004) (noting the Health Care Quality Improvement
Act (HCQIA)[FN.3] “requires hospitals to report information to the
Data Bank, and to request information from the Data Bank when
physicians join a hospital and every two years thereafter. See
42 U.S.C. §§ 11133, 11135”). Geisinger’s report included the
following statements.
[FN.3] 42 U.S.C.A. § 11101 et seq.
This classification is being utilized although the
actual adverse action is a termination of employment
(as opposed to a pure revocation of privileges) based
upon unprofessional conduct, etc. Penn State
Geisinger Clinic terminated the practitioner’s
employment on May 16, 1997 subject to an internal
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review. The termination was based upon concerns
regarding the practitioner’s professional conduct and
clinical competency and/or judgment. In addition to
certain, specific incidents, the termination was also
based upon the practitioner’s chronic failure to
properly and promptly complete medical records and
patient charts. The decision to terminate was upheld
by a hearing committee. The Clinical Practice
Committee accepted the recommendation of the
Hearing Committee and affirmed/finalized the
decision to terminate the practitioner’s employment.
The Hearing Committee determined that the conduct
of the practitioner could have an adverse impact on
patient care.
[Geisinger Defendants’ Motion for Summary Judgment,
12/10/10], Exhibit L, NPDB Adverse Action Report.
During his employment with Geisinger, Dr. Babb enjoyed
clinical privileges with Centre County Hospital [(“]CCH[”)]. Upon
his termination by Geisinger, those privileges were withdrawn
because Dr. Babb no longer had malpractice insurance coverage.
Dr. Babb subsequently obtained employment in Clearfield
County.
On May 1, 1998, Dr. Babb initiated the instant action in
the [trial court] by filing a writ of summons against Geisinger,
Dr. Oliver, and Dr. Chmielewski (Geisinger Defendants).[FN.4] On
July 24, 1999, Dr. Babb reapplied for clinical privileges with CCH.
On November 4, 1999, Dr. Babb filed a complaint in United
States District Court for the Middle District of Pennsylvania
against Geisinger, CCH, and others, alleging, inter alia,
discrimination, antitrust violations, breach of contract, civil
conspiracy to deny privileges, and interference with
contract.[FN.6]
[FN.4] Penn State Geisinger Health System
(“PSGHS”) and CCH were not named defenants on
the May 1, 1998 writ. In the context of this opinion,
our discussion of issues relating to Geisinger shall
include PSGHS unless otherwise noted.
[FN.6] Although Dr. Babb’s reapplication for clinical
privileges with CCH was still pending when the
federal action was filed, his claims against CCH were
premised on the hospital’s failure to act in a timely
matter.
Meanwhile, CCH, preparing for consideration of Dr. Babb’s
reapplication, received a copy of the NPDB Adverse Action
Report filed by Geisinger. To further assess the basis for the
report, CCH requested receipt of the information underlying the
report from Geisinger in order to make its own independent
evaluation. Geisinger refused to release information unless Dr.
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Babb signed a blanket release. Dr. Babb refused to do so. None
of the other information available to CCH regarding Dr. Babb’s
competence and qualifications either prior to or subsequent to
the June 2, 1998, NPDB Adverse Action Report was negative.
Nevertheless, the Credentials Committee for CCH recommended
conditional acceptance citing concerns about the NPDB report
and Dr. Babb’s working relationship with the hospital’s
institutions and personnel. CCH’s Medical Executive Committee,
after considering the Credentials Committee recommendation
and reservations, ultimately did not recommend acceptance of
Dr. Babb’s reapplication. CCH advised Dr. Babb of the Medical
Executive Committee’s decision on December 11, 2000 and of
his rights to a Fair Hearing. Dr. Babb did not request a hearing.
On January 29, 2001, in consideration of the Medical Executive
Committee’s recommendation and Dr. Babb’s decision not to
request a hearing, CCH’s Board of Directors voted not to grant
Dr. Babb’s reapplication for clinical privileges.
In conjunction with this action, CCH submitted a required
NPDB report. The reported stated the following.
Adverse Action Classification Code: DENIAL OF
CLINICAL PRIVILEGES (1650)
Date Action Was Taken: 01/29/2001
...
Clinical privileges were denied based on
adverse reports of the physician’s professional
competence and professional conduct, either or both
of which could adversely affect the health or welfare
of patient care at Centre Community Hospital.
...
Basis for Action: UNPROFESSIONAL CONDUCT
(10) INCOMPETENCE (11)
CCH’s Motion for Summary Judgment, 12/10/10, Exhibit T.
Dr. Babb sought review from the U.S. Department of
Human Services, which raised concerns about the sufficiency of
the NPDB report resulting in a corrected report entered June 27,
2002, as follows.
CLINICAL PRIVILEGES WERE DENIED BASED UPON:
Information contained in a national practitioner data
bank report filed by the practitioner’s former
employer advising that the practitioner’s
employment had been terminated based upon
concerns regarding the practitioner’s professional
conduct and clinical competency and/or judgment
that could have an adverse impact on patient care; a
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letter received by the Hospital from practitioner’s
former employer referring the hospital to the data
bank report in response to credentials committee
reference check with former employer; and
practitioner’s statements during his interview with
the Hospital’s credentials committee. The Hospital
believed: that practitioner’s appointment to the
active medical staff would result in an adverse effect
on the quality of the medical care provided to
OB/GYN patients because practitioner failed to
provide evidence that contradicted his former
employer’s data bank adverse assessment;
practitioner’s interview statements to the hospital’s
credentials committee reflected mistrust and
animosity towards members of Hospital’s OB/GYN
Department, Hospital’s medical staff leadership and
administration; and, practitioner’s expressed
animosity towards other members of the medical
staff including charges against other members of the
medical staff of unethical practice would preclude
appropriate and necessary working relationships with
the medical staff including quality improvement. The
Hospital determined that granting privileges to
practitioner would be disruptive to the operations of
the hospital.
Basis for Action: UNPROFESSIONAL CONDUCT
(10)
Dr. Babb’s Response in Opposition to Summary Judgment Motion
of Defendants, 3/15/11, at 553, Appendix III.
On September 14, 2001, the District Court, with Judge
Muir presiding, granted defendants’ motions for summary
judgment, terminating all federal claims but declining to address
Dr. Babb’s state claims. Subsequently, the defendants in the
federal action sought attorney fees from Dr. Babb, alleging his
federal causes of action were frivolous. At the hearing on
defendants’ motion for attorney fees, Judge Muir permitted Dr.
Babb to submit evidence of the basis for his suit, as it pertained
to his state of mind in commencing the action. On April 30,
2002, Judge Muir made extensive findings of fact and entered an
order denying the motion for attorney fees. Id. at 450, Appendix
III.
Meanwhile, on October 31, 2001, Dr. Babb filed a seven-
count complaint in the still pending instant action against the
Geisinger Defendants.[FN.8] On January 25, 2002, Dr. Babb filed
an amended six-count complaint, adding CCH as a party and
alleging the following causes of action. As against Geisinger, Dr.
Babb sought monetary damages, alleging breach of contract
(Count I), and illegal retaliation in violation the Pennsylvania
Human Relations Act (Count VI). As against all defendants, Dr.
Babb sought monetary damages, alleging defamation (Count II),
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intentional interference with contractual relations (Count IV),
and civil conspiracy (Count V). In Count III, Dr. Babb also
sought injunctive relief against Geisinger and CCH relative to the
alleged defamation. See Dr. Babb’s Amended Complaint,
1/25/02. The defendants filed various preliminary objections,
which the trial court subsequently overruled. On June 4, 2003,
CCH filed its answer and new matter to Dr. Babb’s amended
complaint. On January 6, 2004, the Geisinger Defendants filed
their answer and new matter.
[FN.8] [Dr. Babb] added PSGHS to the caption on
the complaint without notice to any of the parties or
requesting leave of the trial court. In the complaint
[Dr. Babb] stated, “it is believed and averred that
Geisinger Clinic was acquired by Penn State
Geisinger Health System (PSGHS), and was known
as the Penn State Geisinger Clinic (PSGC) during the
periods relevant to this Complaint.” [Dr. Babb’s]
Complaint, 10/31/01, at ¶ 2.
On December 10, 2010, the Geisinger Defendants and CCH
each filed a motion for summary judgment. The Geisinger
Defendants and CCH sought summary judgment or partial
summary judgment on the following grounds. Relative to Counts
V and VI of Dr. Babb’s amended complaint, civil conspiracy and
retaliation respectively, the Geisinger Defendants alleged the
claims were barred by res judicata and collateral estoppel based
on previous holdings of the District Court. . . . Relative to Dr.
Babb’s claim for monetary damages in Counts I, II, IV, V, and
VI, the Geisinger Defendants and CCH aver they are covered by
the HCQIA and Pennsylvania Peer Review Protection Act
[(PRPA)][FN.10] immunity. Relative to Count I, breach of contract,
the Geisinger Defendants maintain that, as a matter of law, Dr.
Babb was an at-will employee, precluding a contract based claim
or, in the alternative, that Dr. Babb failed to allege any breach to
his detriment. Relative to Counts II and III, the Geisinger
Defendants and CCH contend Dr. Babb has failed to make out a
case for defamation as a matter of law since the alleged
statements fall outside the statute of limitations, involve
expressions of opinion, or are privileged. . . . Relative to Dr.
Babb’s Count III request for injunctive relief, the Geisinger
Defendants and CCH allege the relief requested is unavailable as
a matter of law because the Data Bank Report at issue was
justified, privileged and mandated and an adequate remedy
exists at law. Relative to Count IV, interference with contract,
the Geisinger Defendants and CCH aver that Dr. Babb has failed
to offer evidence of improper motive, intention or justification or
that there was a reasonable probability that privileges would
have been granted by CCH. . . . Finally, the Geisinger
Defendants sought summary judgment relative to PSGHS since
the entity no longer exists. See Geisinger Defendants’ Motion
for Summary Judgment, 12/10/10; CCH’s Motion for Summary
Judgement, 12/10/10.
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[FN.10] 63 P.S. §[§] 425.1-425.4.
On May 12, 2011, the trial court issued an opinion and
order granting summary judgment in favor of all defendants as
to all counts and dismissed all claims with prejudice. The trial
court based its grant of summary judgment for the counts
seeking damages on the Geisinger Defendants’ and CCH’s claims
of HCQIA immunity. In addition, the trial court noted, “due to
the finding that the parties acted properly in their actions against
Dr. Babb, the [trial c]ourt finds that [i]njunctive relief is
improper and unavailable.” Trial Court Opinion, 5/12/11, at 7.
On June 9, 2011, Dr. Babb filed a timely notice of appeal.
Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1217-22 (Pa. Super. 2012)
(some footnotes omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
On appeal, a panel of this Court affirmed in part and reversed in part
the trial court’s order. The panel affirmed the trial court’s grant of summary
judgment in favor of Dr. Oliver, Dr. Chmielewski, and CCH on the basis of
HCQIA immunity and failure to raise a proper claim for injunctive relief
against CCH. The panel, however, reversed the trial court’s grant of
summary judgment in favor of Geisinger on the basis of HCQIA immunity
because there existed an issue of material fact regarding Geisinger’s
compliance with 42 U.S.C.A. § 11112(a). The panel also declined to review
additional issues relating to Geisinger’s summary judgment motion that were
not addressed by the trial court. The panel, as a result, reversed the trial
court’s May 12, 2011 order only to the extent it granted Geisinger’s motion
for summary judgment and remanded the case for further proceedings.
On remand, the trial court ordered Geisinger to file another summary
judgment motion and brief relating only to issues that the trial court did not
address in its May 12, 2011 order. See Trial Court Order, 10/15/13. The
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trial court also directed Dr. Babb to respond to Geisinger’s summary
judgment motion within 15 days. See id.
On November 4, 2013, Geisinger filed its motion for summary
judgment, raising seven issues. Geisinger first argued it was entitled to
summary judgment as a matter of law, because the doctrines of res judicata
and collateral estoppel barred Dr. Babb’s claims for civil conspiracy and
retaliation. Second, Geisinger argued it was entitled to summary judgment
as a matter of law, because Section 425.3(a) of the PRPA, 63 P.S.
§ 425.3(a), rendered Geisinger immune from liability. Third, Geisinger
argued that Dr. Babb’s breach of contract claim failed as a matter of law,
because Dr. Babb was an at-will employee who could be terminated with or
without cause. Geisinger also argued that, to the extent Dr. Babb claimed
Geisinger did not follow a proper procedure with respect to his termination,
Dr. Babb’s claim was barred by collateral estoppel. Fourth, Geisinger argued
that Dr. Babb’s defamation claim, to the extent it was based on statements
made prior to May 1, 1997, was barred by the one-year statute of limitations
under 42 Pa.C.S.A. § 5523. Fifth, Geisinger argued Dr. Babb’s request for
permanent injunction failed as a matter of law, because the NPDB Report
was justified and required by law. Sixth, Geisinger argued Dr. Babb’s
intentional interference with contractual relations claim failed, because Dr.
Babb could not establish the absence of a privilege or justification on the
part of Geisinger. Lastly, Geisinger argued that PSGHS be dismissed from
the action because PSGHS no longer existed.
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Upon Dr. Babb’s request for a continuance, the trial court extended the
time for Dr. Babb to respond to Geisinger’s motion for summary judgment.
See Trial Court Order, 12/04/13. On December 13, 2013, Dr. Babb filed a
brief in opposition to Geisinger’s motion for summary judgment. Citing
specific findings made by Judge Muir in the federal action, Dr. Babb argued
he was not collaterally estopped from raising a claim for civil conspiracy.
Second, Dr. Babb argued the decision of the prior panel of this Court
precluded Geisinger from using PRPA’s immunity provision to seek summary
judgment, because disputed issues of material fact existed as to malice and
bad faith on the part of Geisinger. Third, Dr. Babb argued that Geisinger’s
motion for summary judgment failed with respect to his breach of contract
claim, because issues of material fact existed as to Dr. Babb’s employment
status and because Geisinger failed to meet its contractual obligations.
Fourth, Dr. Babb contended that his defamation claim was not premised on
statements made prior to May 1998, but rather on statement made, inter
alia, during the Fair Hearing process and in the NPDB Report. Fifth, Dr.
Babb argued that, contrary to Geisinger’s argument in support of its
summary judgment motion, he was entitled to a permanent injunction with
respect to the NPDB Report. Sixth, Dr. Babb argued sufficient evidence of
record existed as to his intentional interference with contract claim. In
support of this argument, Dr. Babb
incorporate[d] by reference here the summary of fact pertaining
to the adverse testimony of Dr. Babb in concurrent litigation and
the actions of Geisinger agents and employees detailed in the
Brief of [Dr. Babb] relating to CCH in the Superior Court at Pages
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19 to 51, detailing wrongful acts of [Geisinger] agents and
employees in the process.
Dr. Babb’s Brief in Response to Geisinger Motion for Summary Judgment,
12/16/13, at 71. In addition, Dr. Babb relied upon averments made in his
complaint to establish the NPDB Report “had the purpose and effect of
wrongfully interfering with prospective contractual relations, locally and
globally.” Id. Finally, Dr. Babb argued Geisinger waived or abandoned its
challenge to the inclusion of PSGHS as a party to this action.
On February 24, 2014, the trial court issued an opinion and order,
granting summary judgment in favor of Geisinger. In its opinion, the trial
court first noted that Dr. Babb failed to file a response to Geisinger’s motion
for summary judgment, but instead filed a brief in opposition. See Trial
Court Opinion, 2/24/14, at 4. The trial also noted Dr. Babb’s brief contained
only citations to the reproduced record that Dr. Babb had submitted to the
prior panel of this Court on his last appeal. As a result, the trial court
concluded Dr. Babb’s brief in opposition “and its citations are not evidence.”
Id. Based on this conclusion, the trial court determined Dr. Babb failed to
challenge the statement of facts contained in Geisinger’s November 4, 2013
motion for summary judgment. Id. The trial court, therefore, held that the
facts for the purpose of summary judgment in this case were
uncontroverted. Id.
The trial court then proceeded to address Geisinger’s affirmative
defenses of res judicata and collateral estoppel as well as peer review
immunity under Section 425.3(a) of the PRPA. With respect to res judicata
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and collateral estoppel, the trial court determined that the September 14,
2001 order of the federal district court granting summary judgment in favor
Geisinger barred Dr. Babb from re-litigating his civil conspiracy and
retaliation claims sub judice. Id. at 6. Regarding the peer review immunity
under PRPA, the trial court determined Geisinger was immune from liability
for money damages under Section 425.3(a). Id. at 11-12. With respect to
Dr. Babb’s breach of contract claim, the trial court concluded that he was an
at-will employee who was terminated for cause and that Geisinger followed
proper post-termination procedures as outlined in Dr. Babb’s practice
agreement. Id. at 13. The trial court further concluded Dr. Babb’s
defamation claim, premised in part on the Fair Hearing process and the
NPDB Report, was without merit, because Dr. Babb failed to identify the
alleged defamatory statements. In addition, the trial court determined “[t]o
the extent it is based on Geisinger’s statements in the data bank report
summarizing the reasons for [Dr.] Babb’s termination, the claim fails
because the communication was privileged.” Id. at 15. With respect to Dr.
Babb’s request for a permanent injunction, the trial court concluded Dr.
Babb failed “to show a clear right to relief, [and] has not shown any urgent
need for immediate relief or harm that cannot be remedied by damages.
The case has been pending for over fifteen years.” Id. at 16. Addressing
Dr. Babb’s claim for intentional interference with contractual relations, the
trial court concluded the claim failed because it was “based on the data bank
report and Geisinger’s communications with [CCH] concerning [Dr.] Babb’s
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application for privileges.” Id. at 17. Finally, the trial court concluded that
PSGHS was not a proper party to the action because Dr. Babb failed to name
it in his writ of summons and PSGHS did not exist when Dr. Babb filed his
complaint. Additionally, the trial court noted Dr. Babb did not provide any
evidence or legal argument supporting PSGHS’s inclusion as a party to the
action. Id. at 17-18.
On appeal,1 Dr. Babb raises seven issues for our review, reproduced
here verbatim:
1. Did the [t]rial [c]ourt err by treating the remand for
disposition of previously briefed and argued motion as a new
motion and declining to consider the complete record?
2. Did the [t]rial [c]ourt erred [sic] in application of collateral
estoppel and res judicata[?]
3. Did the [t]rial [c]ourt erred [sic] in finding peer review
immunity broader than HCQIA immunity and applicable to claims
here[?]
4. Did the [t]rial [c]ourt erred [sic] in finding that no material
issue of fact existed as to the breach of contract claims[?]
5. Did the [t]rial [c]ourt erred [sic] in finding no material issue of
fact existed as to the defamation claims[?]
6. Did the [t]rial [c]ourt erred [sic] in finding no material issue of
fact existed as to the intentional interference of contract claim[?]
7. Did the [c]ourt erred [sic] in finding Defendant Penn State
Geisinger Health System was not a property [sic] party as part
of the joint venture during relevant conduct[?]
Dr. Babb’s Brief at 2.2
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1
The trial court did not order Dr. Babb to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
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We are mindful that:
[o]ur scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is
clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused
its discretion.
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting
Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)).
Before we address the issues on appeal, we note with disapproval Dr.
Babb’s liberal noncompliance with the Pennsylvania Rules of Appellate
Procedure as they relate to briefing and the reproduced record.3 Because
there are numerous deficiencies in Dr. Babb’s brief, we address only those
that are particularly egregious. Dr. Babb’s principal brief contains over 70
pages and incorporates an additional 17 pages from a previous brief filed in
_______________________
(Footnote Continued)
2
We note Dr. Babb’s brief on appeal largely mirrors his December 16, 2013
brief in opposition to Geisinger’s motion for summary judgment filed below.
3
The prior panel of this Court also disapproved of Dr. Babb’s failure to
comply with the appellate rules governing briefs and reproduced record.
See Babb, 47 A.3d at 1230, n.14.
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this Court, a copy of which he fails to provide to this Court in this appeal.4
Given the length of his principal brief, Dr. Babb failed to certify that it
contained less than 14,000 words, as required under Pa.R.A.P. 2135(d). Dr.
Babb’s brief also fails to comply with Pa.R.A.P. 2117 (Statement of the
Case), because his statement of the case is, inter alia, neither brief nor
devoid of any argument. In fact, his statement of the case spans 53 pages,
which includes citations to entire depositions and other lengthy documents in
the reproduced record. The argument section of his brief, however, is short
(less than 16 pages) and contains little citation to the record or legal
authority, in violation of Pa.R.A.P. 2119.
Dr. Babb’s reproduced record, which was filed in five volumes
containing over 1500 pages and compiled in no particular order, does not
contain a table of contents in violation of Pa.R.A.P 2174. The reproduced
record also fails to comply with the requirements of Pa.R.A.P. 2152 and
2154 insofar as it does not include any relevant docket entries, pleadings or
the summary judgment motion filed by Geisinger following remand to the
trial court. Although the reproduced record is paginated, we have found
instances were Dr. Babb repeats the same page number, such as 476a.
Finally, Dr. Babb’s reproduced record contains many excerpts or passages of
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4
In addition to the nearly 100 pages in his principal brief, Dr. Babb also filed
a 14-page reply brief to further flesh out his arguments on appeal.
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notes of testimony that are not accompanied by any cover page indicating
when or where the testimony was taken.
Nonetheless, despite Dr. Babb’s failure to comply in many ways with
the appellate procedural rules, we decline to quash his appeal. By doing so,
we are cognizant of the fact that Dr. Babb’s noncompliance foists upon us
the nearly impossible task of reviewing his arguments. We, however, shall
review and address only arguments we can discern from Dr. Babb’s brief.
We remind Dr. Babb that “[t]his Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Commonwealth v. Gould,
912 A.2d 869, 873 (Pa. Super. 2006); see also Schenk v. Schenk, 880
A.2d 633, 639 (Pa. Super. 2005) (“It is not the duty of the Superior Court to
scour the record and act as appellant’s counsel.”) (citation omitted).5
We first address Dr. Babb’s first, fourth, fifth and sixth issues as they
relate to whether a factual dispute exists in this case. In his first assertion
of error, Dr. Babb essentially argues the trial court erred in concluding
Dr. Babb failed to challenge the facts set forth in Geisinger’s November 4,
2013 motion for summary judgment, because Dr. Babb did not file a
response under Pa.R.C.P. No. 1035.3, but submitted instead a brief citing
____________________________________________
5
The principles stated in criminal cases regarding the Pennsylvania Rules of
Appellate Procedure are “equally applicable” in civil cases because the rules
apply to both civil and criminal cases. Lineberger v. Wyeth, 894 A.2d 141,
148 n.4 (Pa. Super. 2006).
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the reproduced record that he submitted to this Court on his previous
appeal.6 In this regard, Dr. Babb argues the trial court declined to consider
his December 16, 2013 brief in opposition to Geisinger’s November 4, 2013
motion for summary judgment and the attendant reproduced record,
because they were not evidence.
Pennsylvania Rule of Civil Procedure 1035.3, relating to response to
summary judgment, provides in pertinent part:
(a) Except as provided in subdivision (e), the adverse party may
not rest upon the mere allegations or denials of the pleadings
but must file a response within thirty days after service of the
motion identifying
(1) one or more issues of fact arising from evidence
in the record controverting the evidence cited in
support of the motion or from a challenge to the
credibility of one or more witnesses testifying in
support of the motion, or
(2) evidence in the record establishing the facts
essential to the cause of action or defense which the
motion cites as not having been produced.
....
(d) Summary judgment may be entered against a party who
does not respond.
Pa.R.C.P. No. 1035.3(a), (d). To the extent Dr. Babb suggests that Rule
1035.3 does not prescribe a particular format for responding to a motion for
____________________________________________
6
To the extent Dr. Babb claims the trial court erred in treating the remand
for disposition of a previously briefed and argued motion for summary
judgment as a new motion for summary judgment, we decline to address
this issue because Dr. Babb waived it by failing to raise it in the trial court.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
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summary judgment, we agree. The clear and unambiguous language of Rule
1035.3 merely requires that a party respond to a summary judgment motion
“within thirty days after service of the motion identifying,” inter alia, factual
disputes. Accordingly, based on the clear language of Rule 1035.3, the trial
court erred in declining to treat Dr. Babb’s December 16, 2013 brief as a
response in opposition to Geisinger’s November 4, 2013 motion for
summary judgment.
With the foregoing in mind, and treating Dr. Babb’s brief (in opposition
to Geisinger’s motion for summary judgment) as a response under Rule
1035.3, we must determine whether the facts set forth in Geisinger’s
summary judgment motion are undisputed. Thus, we next address Dr.
Babb’s fourth argument that the trial court erred in finding that no material
issues of fact existed as to Dr. Babb’s breach of contract claim.
In this regard, Dr. Babb argues that, contrary to Geisinger’s
assertions, he “was not an at-will employee subject to unreviewable,
summary discharge, without cause.” Dr. Babb’s Brief at 65. Dr. Babb also
argues
Geisinger violated the contract provision requiring Dr. Babb’s
participation in the selection of a team leader. Geisinger violated
the provision requiring consultation regarding the recruitment of
Dr. Charles. Geisinger breached the contract requirement
regarding the requirement that he be given pre-termination
notice and opportunity to respond regarding any alleged
deficiencies in performance.
Id. at 66. In support of his breach of contract claim, Dr. Babb points out
that the practice agreement, which he signed on June 30, 1996, provides in
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pertinent part that “[p]rior to any termination initiated by Geisinger for or
without cause, however, [Dr. Babb] shall be afforded an opportunity for
a review of the underlying circumstances therefore [sic], pursuant to
Geisinger’s published guidelines governing such reviews, as amended and in
effect from time to time.” Dr. Babb’s Brief in Opposition to Geisinger Motion
for Summary Judgment, 12/16/13, at 12 (citing Practice Agreement,
6/30/95, at 1) (emphasis added). Dr. Babb cites his own testimony to
support his argument that Geisinger failed to advise him of any disciplinary
issues prior to terminating his employment. Reproduced Record (R.R.) at
1482.7 In addition, Dr. Babb points to a June 8, 1995 letter authored by Dr.
Maxin, which provides in pertinent part:
The Practice Agreement along with the Employee Benefits
Summary, the Professional Staff Handbook and this letter form
the basis of the agreement between you and Geisinger.
....
You will participate in the decision along with your colleagues
and Geisinger management to designate leadership position for
OB/GYN in Centre County. You will also have the opportunity to
participate in the hiring and firing of any employees in the
OB/GYN department.
June 8, 1995 Letter by Dr. Maxin, at 1-2 (emphasis added).
____________________________________________
7
We cannot discern from the reproduced record when, where or in what
context Dr. Babb’s testimony was taken. Dr. Babb provides us only with
excerpts or selected pages of testimony that are riddled with annotations.
As noted earlier, the reproduced record supplied by Dr. Babb fails to comply
in any meaningful way with the requirements of the Rules of Appellate
Procedure governing reproduced records and, as a result, renders our review
of this appeal extraordinarily challenging.
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Geisinger on the other hand argues only that the “with or without
cause” language contained in the practice agreement establishes
conclusively that Dr. Babb was an at-will employee. Geisinger’s Brief at 42-
43. In so doing, Geisinger downplays the significance of the June 8, 1995
letter by Dr. Maxin that seemingly casts doubt over Geisinger’s at-will
argument.
Viewing the record in the light most favorable to Dr. Babb, as the non-
moving party, and resolving all doubts as to the existence of a genuine issue
of material fact against Geisinger, as the moving party, we conclude that the
trial court erred in granting Geisinger’s motion for summary judgment with
respect to Dr. Babb’s breach of contract claim. As the record evidence cited
in support of Dr. Babb’s breach of contract claim indicates, a factual dispute
exists as to whether (1) Dr. Babb was an at-will employee, (2) Geisinger
afforded Dr. Babb’s an opportunity to review the underlying grievances prior
to termination and (3) Geisinger had any contractual obligations to Dr. Babb
that Geisinger failed to honor during the course of Dr. Babb’s employment
with Geisinger.
We next address Dr. Babb’s fifth argument that the trial court erred in
finding no material issue of fact existed as to the defamation claim. To
support this argument, Dr. Babb points out that disputed issues of material
fact exist with respect to statements made by Geisinger at the time of his
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termination, during the Fair Hearing process and in the NPDB Report.8
Dr. Babb’s Brief at 68. As the trial court and Geisinger note, however, Dr.
Babb fails to identify with specificity what statements form the basis of his
defamation claim. See Trial Court Opinion, 2/24/14, at 15 (Dr. Babb “failed
to specifically identify the time, place, publisher, and recipients of the
statements he relies on to support his defamation claim.”). Accordingly,
given the lack of evidence offered by Dr. Babb to support his defamation
claim, we find no basis upon which to disagree with the trial court’s
conclusion that there exists no genuine issue of material fact, 9 or with its
conclusion granting Geisinger summary judgment on this claim.
In his sixth assertion of error, Dr. Babb argues that the trial court
erred in finding that no issues of material fact existed with respect to his
interference with prospective contractual relations claim. To support his
argument, Dr. Babb asserts
[t]he Complaint plainly asserts that employees and agents of
PSGHS acted in concert to interfere with Dr. Babb’s attempt to
secure staff privileges at CCH, that the interference was
____________________________________________
8
In his reply brief, Dr. Babb directs our attention to pages 27 through 55,
where he claims we can find “detailed” facts relating to his defamation claim.
Dr. Babb’s Reply Brief at 10. Our review of the referenced pages in
Dr. Babb’s brief does not yield any statements—much less detailed
statements—that are defamatory. At any rate, to the extent there may be
statements that Dr. Babb considers defamatory, it is incumbent upon him to
specify what they are. As mentioned, Dr. Babb cannot expect this Court to
scour the record for evidence supporting his claims.
9
As mentioned infra, statements made during the Fair Hearing process or
the resulting NPDB Report are covered by PRPA’s immunity provisions.
- 21 -
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wrongful, with improper motive and beyond the scope of any
privilege. The Complaint also specifically alleges that PSGHS
Data Bank report was false, defamatory and had the purpose
and effect of wrongfully interfering with prospective contractual
relations, locally and globally. This is separate actionable
interference.
Dr. Babb’s Brief at 70. Because Dr. Babb fails to offer any evidence beyond
what he pled in his complaint to support this claim, we agree with the trial
court that no issues of material fact exist. See Pa.R.C.P. No. 1035.3(a) (an
adverse party may not rest upon the mere averments or denials in its
pleadings); see also Bank of America, N.A. v. Gibson, 102 A.3d 462, 464
(Pa. Super. 2014) (noting “the nonmoving party cannot rest upon the
pleadings, but rather must set forth specific facts demonstrating a genuine
issue of material fact”); see also Downey v. Crozer-Chester Med. Ctr.,
817 A.2d 517, 524 (Pa. Super. 2003) (“Where the non-moving party bears
the burden of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment.”). Summary judgment in
Geisinger’s favor was therefore appropriate on this claim.
We now turn to Dr. Babb’s second assertion of error. Dr. Babb argues
the trial court erred in its application of collateral estoppel and res judicata
with respect to his civil conspiracy claim. Specifically, Dr. Babb has alleged
Geisinger “engaged in a civil conspiracy to wrongfully discharge and denied
[sic] privilege, defame and interfere with existing and prospective
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contractual relations of Dr. Babb.”10 Dr. Babb’s Complaint, 1/25/02, at
¶ 254.
Discussing the preclusive doctrines of res judicata and collateral
estoppel, our Supreme Court remarked:
We acknowledge that the term “res judicata” is a somewhat
sloppy term and that it is sometimes used to cover both res
judicata itself (claim preclusion) as well as collateral estoppel
(“broad” res judicata or issue preclusion). Collateral estoppel,
broad res judicata or issue preclusion “forecloses re-litigation in
a later action, of an issue of fact or law which was actually
litigated and which was necessary to the original judgment.”
City of Pittsburgh v. Zoning Board of Adjustment of
Pittsburgh, [] 559 A.2d 896, 901 ([Pa.] 1989).
Hebden v. W.C.A.B. (Bethenergy Mines, Inc.), 632 A.2d 1302, 1304
(Pa. 1993). Our Supreme Court also remarked:
Under the doctrine of res judicata issue preclusion,[FN.2] when an
issue of fact or of law is actually litigated and determined by a
valid final judgment, and determination of the issue was
essential to judgment, the determination on that issue is
conclusive in a subsequent action between the parties, whether
on the same or a different claim. Clark v. Troutman, 502 A.2d
137 ([Pa.] 1985). As we have noted in our cases, issue
preclusion serves the twin purposes of protecting litigants from
assuming the burden of re-litigating the same issue with the
same party, and promoting judicial economy through preventing
needless litigation. Id.
[FN.2] “Res judicata” means “a thing adjudged” or a
matter settled by judgment. Traditionally, American
courts have used the term res judicata to indicate
claim preclusion, i.e., the rule that a final judgment
rendered by a court of competent jurisdiction on the
merits is conclusive as to the rights of the parties
and constitutes for them an absolute bar to a
subsequent action involving the same claim, demand
or cause of action. See, e.g., Matchett v. Rose, 36
Ill. App. 3d 638, 344 N.E.2d 770 (1976). This is
____________________________________________
10
On appeal, Dr. Babb challenges only the trial court’s ruling with respect to
the prospective nature of his interference with contract claim.
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distinguished from the traditional doctrine of
collateral estoppel, or issue preclusion, which holds
that when a particular issue has already been
litigated, further action on the same issue is barred.
See, e.g., City of St. Joseph v. Johnson, 539
S.W.2d 784 (Mo. App. 1976). We have interpreted
the “modern doctrine of res judicata” as
incorporating both claim preclusion, or traditional res
judicata, and issue preclusion, or traditional
collateral estoppel.
McNeil v. Owens-Corning Fiberglas Corp., 680 A.2d 1145, 1147-48 (Pa.
1996) (citation omitted).
In BuyFigure.com, Inc. v. Autotrader.com, Inc., 76 A.3d 554 (Pa.
Super. 2013), appeal denied, 84 A.3d 1061 (Pa. 2014), we held “res
judicata and collateral estoppel applied to bar [a]ppellant’s claims, because
the claims and issues in both the federal and state courts had identical
characteristics, and the parties were either identical or had privity with one
another, so as to be bound in state court by the decisions and rulings of the
federal court.” BuyFigure.com, Inc., 76 A.3d at 560. We explained:
As [the Pennsylvania Commonwealth] Court recently
decided in Callowhill Center Associates, [LLC v.
Zoning Board of Adjustment, 2 A.3d 802 (Pa.
Cmwlth. 2010)], the doctrine of res
judicata/collateral estoppel applies not only to
matters decided, but also to matters that could
have, or should have, been raised and decided
in an earlier action. Our decision in Callowhill
Center Associates recognized well-settled
precedent that collateral estoppel applies if there
was adequate opportunity to raise issues in the
previous action. Stevenson v. Silverman, 417 Pa.
187, 208 A.2d 786 (1965); Hochman v. Mortgage
Finance Corporation, 289 Pa. 260, 137 A. 252
(1927).
Bell v. Township of Spring Brook, 30 A.3d 554, 558 (Pa.
Cmwlth. 2011). (emphasis supplied).
Significantly, as emphasized by our Pennsylvania Supreme
Court:
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As pertinently stated in Hochman[], 137 A. [at]
253; ‘The [doctrine of res judicata ] should not be
defeated by minor differences of form, parties, or
allegations, when these are contrived only to obscure
the real purpose,—a second trial on the same cause
between the same parties. The thing which the
court will consider is whether the ultimate and
controlling issues have been decided in a prior
proceeding in which the present parties
actually had an opportunity to appear and
assert their rights. If this be the fact, then the
matter ought not to be litigated again, nor should
the parties, by a shuffling of plaintiffs on the record,
or by change in the character of the relief sought, be
permitted to nullify the rule.’ (Emphasis supplied.)
Stevenson [], [] 208 A.2d [at] 788[.]
BuyFigure.com, Inc., 76 A.3d at 561 (emphasis added).
In this case, the parties dispute only whether the ultimate and
controlling issue, i.e., the existence of a conspiracy between Geisinger and
CCH, was decided finally in the federal action, which concluded on the merits
on September 14, 2001. To buttress his argument against the preclusive
doctrine of res judicata, however, Dr. Babb principally cites “findings of fact”
outlined in Judge Muir’s April 30, 2002 opinion issued in connection with
Geisinger’s and CCH’s motion for attorney’s fees and costs. Dr. Babb’s Brief
at 61-62.
Dr. Babb’s reliance on the April 30, 2002 decision, however, is
misleading. A careful reading of the April 30, 2002 opinion reveals that the
opinion contained very limited factual findings. In fact, in the prefatory
section of his opinion, Judge Muir expressly claimed “[f]indings of fact or
conclusions of law set forth below which are not disputed are noted with a
“U” in parenthesis after such finding.” Federal Court Opinion, 4/30/02, at 5
- 25 -
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(emphasis added). Thus, the “factual findings” upon which Dr. Babb relies
are not findings rendered by Judge Muir as they were not noted with a “U,”
but rather appear to be Judge Muir’s recitation of facts as alleged by Dr.
Babb. Moreover, as the trial court aptly found:
The issue decided in the federal court’s fee decision was whether
[Dr.] Babb’s claims were frivolous and without foundation,
entitling Geisinger to an award of attorneys’ fees. The decision
related only to reasonableness and [Dr.] Babb’s state of mind.
The merits were not actually litigated or resolved by that
decision, and thus res judicata does not apply.
Trial Court Opinion, 2/24/14, at 9.
Thus, having addressed Dr. Babb’s unwarranted reliance on Judge
Muir’s April 30, 2002 opinion, which has no preclusive effect, we must
determine whether Judge Muir’s September 14, 2001 order on the merits
bars Dr. Babb’s civil conspiracy claim sub judice. In his September 14, 2001
order, Judge Muir addressed conspiracy claims raised by Dr. Babb that were
premised upon “an alleged conspiracy between certain Geisinger Defendants
and certain [CCH] Defendants.” Federal Court Order #2, 9/14/01, at 17. In
ruling on Dr. Babb’s conspiracy claims at the summary judgment stage,
Judge Muir concluded that Dr. Babb presented insufficient evidence
regarding the existence of any conspiracies alleged in the complaint. Id. at
18. Judge Muir specifically found
there is no evidence regarding the single most critical element
upon which all of [Dr.] Babb’s remaining claims are based (i.e.,
the existence of a conspiracy or illicit agreement.) There was
only one direct communication between a representative of
Geisinger Defendants and a representative of [CCH] regarding
[Dr.] Babb’s application which provides any support at all to
[Dr.] Babb’s allegations. That communication is the
conversation between Maxin and [Lance H.] Rose in September
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of 1999, which shows only that there may have been an
opportunity to conspire or reach an agreement.
....
[T]he conversation between Rose and Maxin demonstrates
merely an opportunity to conspire and nothing more. In that
conversation Maxin informed Rose that Maxin would not attend
the meeting to discuss [Dr.] Babb’s application unless [Dr.] Babb
executed a document releasing Maxin from liability for providing
information relating to [Dr.] Babb’s employment at the Clinic.
....
No direct or circumstantial evidence has been presented that
reasonably tends to prove a conscious commitment or a common
scheme among the Defendants designed to achieve an unlawful
objective.
Federal Court Order #1, 9/14/01, at 19-21. Judge Muir, thefore, concluded
[t]here is simply no evidence indicating that any decision
adverse to [Dr.] Babb resulted from a conspiracy. Because no
reasonable trier of fact could conclude, based on the record
presented to us, that any conspiracy existed as alleged in the
complaint we will grant Geisinger Defendants’ motion for
summary judgment as to the claims in Counts 6, 7, and 10.[11]
Federal Court Order #2, 9/14/01, at 17.
In Pennsylvania, a plaintiff must prove the following elements to
establish a claim for civil conspiracy: (1) a combination of two or more
persons acting with a common purpose to do an unlawful act or to do a
____________________________________________
11
Count 6 in Dr. Babb’s complaint alleged “all Defendants violated Section 1
of the Sherman Act when they acted in concert to monopolize the market for
obstetrical and gynecological inpatient surgical services in a certain
geographic area.” Federal Court Order #2, 9/14/01, at 2-3. Count 7 alleged
“all of the Defendants conspired to monopolize the market referenced in
Count 6, thereby violating Section 2 of the Sherman Act.” Id. at 3. Count
10 alleged “all of the Defendants unlawfully conspired against [Dr.] Babb.”
Id.
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lawful act by unlawful means or for an unlawful purpose, (2) an overt act
done in pursuance of the common purpose, and (3) actual legal damage.
Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004).
It has long been the settled rule in this Commonwealth that
proof of conspiracy must be made by full, clear and satisfactory
evidence. The mere fact that two or more persons, each with
the right to do a thing, happen to do that thing at the same time
is not by itself an actionable conspiracy.
Fife v. Great Atl. & Pac. Tea Co., 52 A.2d 24, 39 (Pa. 1947). Also,
“absent a civil cause of action for a particular act, there can be no cause of
action for civil conspiracy to commit that act.” McKeeman v. Corestates
Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 2000). When a plaintiff’s
conspiracy claim lacks an underlying predicate cause of action, the
conspiracy claim must fail as a matter of law. See Phillips v. Selig, 959
A.2d 420, 437 (Pa. Super. 2008) (“Because we affirm the trial court’s grant
of summary judgment dismissing [a]ppellant’s interference with contract
claim, no predicate cause of action exists upon which [a]ppellants may
assert claims for civil conspiracy.”), appeal denied, 967 A.2d 960 (Pa.
2009).
With the foregoing principles in mind, we agree with the trial court’s
conclusion that the federal court’s September 14, 2001 order bars Dr. Babb
from raising his civil conspiracy claim sub judice. As the trial court noted,
Dr. Babb and Geisinger “were parties to the federal action, in which a court
of competent jurisdiction entered a final judgment,” resolving “the
controlling issues of conspiratorial conduct and improper motives by
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Geisinger.”12 Trial Court Opinion, 2/24/14, at 6-7. In fact, the federal
court’s determination that the record lacked any evidence demonstrating the
existence of a conspiracy between Geisinger and CCH was predicated on
evidence presented by the parties. Accordingly, because Dr. Babb and
Geisinger were both parties to the federal action and litigated the issue of
conspiracy, Dr. Babb is prohibited by the doctrine of res judicata from re-
litigating in the matter sub judice the issue of conspiracy.
Even if we had not applied the preclusive doctrine of res judicata, Dr.
Babb’s conspiracy claim with respect to wrongful discharge would have
failed, because Dr. Babb neglected to allege an independent cause of action
for wrongful discharge. See supra, Phillips; see also Boyanowski v.
Capital Area Intermediate Unit, 215 F.3d 396, 405-06 (3d Cir. 2000)
(citation omitted) (“The rule that civil conspiracy may not exist without an
underlying tort is a common one. Indeed, we are unaware of any
jurisdiction that recognizes civil conspiracy as a cause of action requiring no
separate tortious conduct.”). Similarly, Dr. Babb’s conspiracy claim also fails
because of our conclusion above with respect to Dr. Babb’s defamation and
interference with contract claims.
We now address Dr. Babb’s third assertion of error. Dr. Babb argues
the trial court erred in applying the immunity provisions of Section 425.3 of
____________________________________________
12
There is no indication in the record that Dr. Babb did not have an
opportunity to litigate the issue of conspiracy in the federal court.
- 29 -
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the PRPA to his claims, because the application of the PRPA was precluded
by the prior decision of this Court.13 We disagree.
As noted earlier, the prior panel of this Court reversed the trial court’s
grant of summary judgment—that was based on HCQIA immunity—in favor
of Geisinger. In so reversing, the panel concluded only that a genuine issue
of material fact existed with respect to “whether Dr. Babb has met his
burden to show that either the peer review process or Geisinger’s belief that
its actions were in furtherance of patient care was unreasonable” under
Section 11112(a) of the HCQIA. Babb, 47 A.3d at 1227. The panel
clearly did not address the issue of immunity under the PRPA. Id. at 1230
(declining to address “the applicability of immunity under the PRPA”).
Accordingly, the trial court did not err in addressing the issue of immunity
under Section 425.3(a) of the PRPA.
Insofar as Dr. Babb argues Geisinger did not meet the requirements of
Section 425.3, because “more than sufficient evidence that Geisinger []
acted with malice and bad faith” exists, we disagree for several reasons.
First, Section 425.3(a) of the PRPA does not contain any requirement that
malice or bad faith be established. Indeed, Section 425.3(a) of the PRPA
plainly provides:
____________________________________________
13
To the extent Dr. Babb asserts that the trial court erred in finding the
immunity provisions of the PRPA to be broader than the immunity provisions
of the HCQIA, we decline to address this issue, because it was never raised
before the trial court. See Pa.R.A.P. 302(a).
- 30 -
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(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 have violated
any criminal law, or to be civilly liable under any law, unless:
(1) such information is unrelated to the performance of the
duties and functions of such review organization, or
(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). Based on our reading of the clear and unambiguous
language of the PRPA, we disagree with Dr. Babb’s contention that malice or
bad faith are an element under Section 425.3(a). Second, to the extent Dr.
Babb cites Cooper v. Delaware Valley Medical Center, 654 A.2d 547,
553-54 (Pa. 1995), to support his argument that malice and bad faith are
required under Section 425.3, we find such reliance inapposite. In Cooper
our Supreme Court addressed the issue of malice only under Section
425.3(b), which by its plain terms requires proof of malice. See id.; 63 P.S.
§ 425.3(b) (“[T]his subsection shall not apply with respect to any action
taken by any individual if such individual, in taking such action, was
motivated by malice toward any person affected by such action.”)
(emphasis added). Third, even if malice were an element under Section
425.3 of the PRPA, Dr. Babb does not cite any facts to establish malice. He
only provides the bald remark that “sufficient evidence that Geisinger acted
with malice and bad faith” exists. Dr. Babb’s Brief at 63. Dr. Babb’s broad
remark about evidence favorable to his case is troubling, because he fails to
provide any citation to the record. As we have repeatedly emphasized, we
shall not develop an argument for the appellant, nor shall we scour the
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record to find evidence to support an argument. See J.J. DeLuca Co. v.
Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super. 2012) (citation and
quotation marks omitted).
We now address Dr. Babb’s last argument that the trial court erred in
finding PSGHS was not a proper party to this action. To support his
argument, Dr. Babb points out
[he] was hired by an entity known as the “Geisinger Clinic” in
1995. He was discharged by the “Geisinger Clinic” in May 16,
1997. The original Summons was filed against Robin E. Oliver,
M.D. and Michael Chmielewski, M.D. and Geisinger Clinic in May
1998. Served by Sheriff was timely requested and a return was
issued as to [all three of them.]
The actual final confirmation of discharge of Dr. Babb was
made by Bruce Hamory, M.D., on letterhead which identified him
as Executive Vice President and Chief Medical Officer of the
“Penn State Geisinger Health System.” On June 5, 1998 [Dr.
Maxin] used the same letterhead and identified himself as the
Sr. Vice President Clinical Operations Western Region for the
“Penn State Geisinger Health Clinic” in confirming that the
termination was final and in making a demand for loan
repayment. The NPDB Report was filed by “Penn State Geisinger
Clinic.”
The corporate documents attached to PSGHS to the Brief
in Support of Preliminary Objections unequivocally showed that
“Geisinger Clinic” became the “Penn State Geisinger Clinic” by a
name change amendment.
....
On or about February 21, 2000, the Penn State Geisinger
Clinic again renamed itself and dissolved ties to the Penn State
Geisinger Health System Foundation by further amendment to
its bylaws.
Dr. Babb’s Brief at 71-72 (emphasis in original). Dr. Babb, however, cites
no legal authority for the proposition that an entity that no longer exists
when a complaint is filed properly may be included as a party to the action.
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We, therefore, agree with the trial court’s determination that, “[a]lthough
[Dr.] Babb has suggested that the doctrine of successor liability may apply,
he has not provided the [c]ourt with any authority establishing a basis for
successor liability in this case.” Trial Court Opinion, 2/24/14, at 18.
We also disagree with Dr. Babb’s suggestion that the trial court lacked
authority to revisit the issue of whether PSGHS was a proper party to this
action after ruling on it at the preliminary objection stage. A trial judge
always may revisit his or her own prior pre-trial rulings in a case without
clashing with the law of the case doctrine. See In re Estate of Elkins, 32
A.3d 768, 777 (Pa. Super. 2011) (citation omitted), appeal denied, 57 A.3d
71 (Pa. 2012); see also BuyFigure.com, Inc, 76 A.3d at 558-59 (noting
that “[a] trial court has the inherent power to reconsider its own rulings”).
Lastly, to the extent Dr. Babb argues Geisinger waived the issue of
whether PSGHS was a proper party by failing to raise it in its motion for
summary judgment, we reject the argument as misleading. Our review of
Geisinger’s summary judgment motion reveals that Geisinger indeed raised
this issue. Geisinger’s Motion for Summary Judgment, 11/4/13, at ¶ 141.
In sum, we reverse the trial court’s grant of summary judgment only
with regard to the issue of breach of contract and remand the matter to the
trial court because a genuine issue of material fact exists as to whether (1)
Dr. Babb was an at-will employee, (2) Geisinger afforded Dr. Babb’s an
opportunity to review the underlying grievances prior to termination and (3)
Geisinger had any contractual obligations to Dr. Babb that Geisinger failed to
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J-A03023-15
honor during the course of Dr. Babb’s employment with Geisinger. We
affirm the trial court’s grant of summary judgment with respect to all
remaining issues.14
Order affirmed in part. Reversed in part. Case remanded.
Jurisdiction relinquished.
Justice Fitzgerald joins the memorandum.
Judge Mundy files a concurring statement, in which Justice Fitzgerald
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
____________________________________________
14
On October 23, 2014, Geisinger filed a “Motion to Quash and Dismiss
Appeal,” because, according to Geisinger, Dr. Babb failed to comply with the
requirements of the Pennsylvania Rules of Appellate Procedure with respect
to briefing and the reproduced record. As we observed above, we recognize
and strongly disapprove of the various deficiencies in Dr. Babb’s brief and his
reproduced record. Despite the difficult task of understanding and
determining Dr. Babb’s arguments, however, we managed to glean enough
information from the record to engage in meaningful appellate review.
Accordingly, we deny Geisinger’s motion to quash the appeal.
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