Babb, T. v. Geisinger Clinic ( 2015 )

J-A03023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERRENCE E. BABB, M.D. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GEISINGER CLINIC; PENN STATE
GEISINGER HEALTH SYSTEM
Appellee No. 981 MDA 2014
Appeal from the Order Entered February 24, 2014
In the Court of Common Pleas of Centre County
Civil Division at No(s): 98-1195
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
CONCURRING STATEMENT BY MUNDY, J.: FILED JUNE 03, 2015
I join the Majority’s thoughtful memorandum in full. I write separately
to add these few remarks pertaining to Dr. Babb’s counsel seemingly
continuous disregard for our Rules of Appellate Procedure.
When this case was before this Court in 2012, Appellees filed a motion
to dismiss Dr. Babb’s appeal based on his violations of various Rules of
Appellate Procedure. These violations included the following.
12. Dr. Babb failed to designate the record and
properly prepare a reproduced record in accordance
with Pa.R.A.P. 2154(a).
13. Dr. Babb’s reproduced record fails to comply
with Pa. R.A.P. 2152. Specifically, it fails to include
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A03023-15
the relevant pleadings, i.e. the Motions for Summary
Judgment at issue.
14. Perhaps more egregious, Dr. Babb’s reproduced
record contains over 1500 pages of documents which
he filed contemporaneous with and as an “appendix”
to his Memorandum of Law in Opposition to
Appellees’ Motions. Dr. Babb’s multi-volume
appendix was not attached to his Answers to the
Motions, but was later filed with the trial court in
several installments.
15. Although Pa.R.A.P. 2154(a) requires a
designation of the record, Dr. Babb did not do so;
instead, Dr. Babb’s reproduced record includes items
which are not of record and omits others that
certainly should have been included, which are
critical to this Court’s review.
…
24. Dr. Babb[’s brief] exceeded the page limitation
established by Pa.R.A.P. 2135 which restricts
principal briefs to seventy (70) pages.[1]
25. In addition, Dr. Babb’s Statement of the Case
does not conform to the requirements of Pa.R.A.P.
2117 ….
26. Dr. Babb has failed to state the form of the
action; to identify the “Federal Court” involved in a
previous proceeding; to identify the judge whose
determination is under review; to condense his
statement of facts, which is approximately forty (40)
pages in length; and to briefly state the order under
review.
____________________________________________
1
Rule 2135 was amended in 2013 to change the page limitation to a word
limitation.
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27. Dr. Babb also includes backdoor legal argument
within his Statement of the Case in violation of
Pa.R.A.P. 2117(b).
Appellees’ Joint Motion to Quash and Dismiss Appeal, 1025 MDA 2011,
10/18/11, at ¶¶ 12-15, 24-27. However, in spite of these deficiencies, this
Court concluded we were not hampered in our ability to conduct meaningful
appellate review. Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1230 n.14 (Pa.
Super. 2012), appeal denied, 65 A.3d 412 (Pa. 2013).
As the Majority notes, in the instant appeal, Dr. Babb’s counsel has
again shown flagrant disregard for our Rules regarding appellate briefs and
the reproduced record. The deficiencies in the instant appeal, as accurately
summarized by the Majority, are as follows.
Dr. Babb’s principal brief contains over 70 pages and
incorporates an additional 17 pages from a previous
brief filed in this Court, a copy of which he fails to
provide to this Court in this appeal. 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
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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 notes of testimony that are not
accompanied by any cover page indicating when or
where the testimony was taken.
Majority Memorandum at 14-16.
Rule 2101 requires that all appellate briefs and reproduced records
conform to our rules. Pa.R.A.P. 2101. Although Rule 2101 permits dismissal
of an appeal for substantial defects in the same, the rule’s text makes this a
purely discretionary decision on the part of this Court. See id. (stating, “if
the defects are in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be … dismissed[]”) (emphasis
added). For the second time, this Court has admirably addressed the merits
of Dr. Babb’s appeal to the best of its ability, in spite of his repeated
disregard for our rules. In fact, counsel for Dr. Babb repeated some of the
same deficiencies in both appeals, despite our prior note of disapproval.
See generally Babb, supra. I remind counsel for Dr. Babb that although
the Court has now twice declined to dismiss his appeal, should there be a
third appeal, the next panel may not be as generous as the first two.
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