Babb, T. v. Geisinger Clinic

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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

____________________________________________

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.

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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

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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.

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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).

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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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