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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


           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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J-A03023-15


            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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