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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 sevencount 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.”). 
J-A03023-15

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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 
J-A03023-15

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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. 
J-A03023-15

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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 nonmoving 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,9or 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.
J-A03023-15

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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 
J-A03023-15

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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. 
J-A03023-15

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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 
J-A03023-15

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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 relitigating 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). 
J-A03023-15

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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 
J-A03023-15

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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. 
J-A03023-15

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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 
J-A03023-15

- 34 -

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.