Greenberg, M.D., M. v. Buckley, B.

J-A03012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL R. GREENBERG, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BARBARA M. BUCKLEY : No. 668 MDA 2016
Appeal from the Judgment Entered March 28, 2016
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2015-2372
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 08, 2017
Appellant, Michael R. Greenberg, M.D., appeals from the March 28,
2016 Order entered in the Centre County Court of Common Pleas, which
sustained the Preliminary Objections filed by Barbara M. Buckley
(“Appellee”) and dismissed Appellant’s Complaint with prejudice. After
careful review, we affirm.
This case involves Appellant’s claim that Appellee, a physician’s
assistant who had treated Appellant, made an allegedly false report about
Appellant’s prescription drug use to an investigator of the Board of
Medicine.1
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1
The Board of Medicine had initiated an investigation into Appellant’s fitness
to practice medicine following a report made to the Board by Nadine M.
McGraw, a physician’s assistant previously employed at Appellant’s medical
practice.
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On June 23, 2015, Appellant filed a Complaint against Appellee
alleging three counts: Defamation, Abuse of Process and Intentional
Infliction of Emotional Distress.
In his Complaint, Appellant alleged that Appellee informed a Board of
Medicine investigator during an on-going Board investigation that (1) she
had only written prescriptions for Adderall at Appellant’s request; (2) she
never performed a physical examination of Appellant; and (3) Appellant was
very specific in his requests for the type of drug, dosage, and number of pills
to be prescribed to him. Appellant further alleged that personal animus and
the intent to damage Appellant’s personal and professional reputation
motivated Appellee’s statement to the Board of Medicine. See Appellant’s
Complaint, 6/23/15, at ¶¶ 35-37, 39, 42.
In response to the Complaint, on October 1, 2015, Appellee filed
Preliminary Objections. On December 30, 2015, the trial court sustained
Appellee’s Preliminary Objections and dismissed Appellant’s Complaint.
Thereafter, Appellant filed this timely appeal, in which he raised the
following four issues for our review:
1. Whether the trial court erred in holding that the Medical
Practice Act, 63 P.S. § 422.4, provides absolute immunity
to claims sounding in Defamation and Abuse of
Process where the Complaint alleges that Appellee
maliciously and intentionally made false reports to a Board
of Medicine investigator?
2. Whether the trial court erred and/or abused its discretion
in holding that statements that specifically state or imply
illicit drug use are insufficiently “outrageous” to state a
claim for Intentional Infliction of Emotional Distress?
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3. Whether the trial court erred and/or abused its discretion
in holding that Appellant’s allegations that Appellee
maliciously initiated an investigation into Appellant’s
fitness to practice medicine to accomplish a purpose for
which the process was not designed is insufficient to state
a claim for Abuse of Process?
4. Whether the trial court erred or abused its discretion in
finding that statements that specifically stated and/or
implied illicit drug use were incapable of defamatory
meaning?
Appellant’s Brief at 2-3 (reordered for ease of disposition).
Initially, we set forth our standard of review of a trial court’s decision
to sustain Preliminary Objections and dismiss a Complaint:
Our standard of review of an order of the trial court overruling or
granting preliminary objections is to determine whether the trial
court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases
in which it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to
relief. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (internal
citations omitted).
Immunity Bars Claims for Defamation and Intentional Infliction
of Emotional Distress.
Appellant’s first two issues are related; we, thus, address them
together. In his first issue, Appellant claims that the trial court erred when it
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concluded that absolute privilege or judicial immunity protected Buckley
from liability arising from her statements because she did not make them “in
the regular course of judicial proceedings.” Appellant’s Brief at 10.
Appellant also claims that the court erred in holding that the Medical Practice
Act, 63 P.S. § 422.4, provides absolute immunity to claims sounding in
Defamation and Abuse of Process where the Complaint alleges that Appellee
maliciously and intentionally made false reports to a Board of Medicine
investigator. Id. at 15-16.
In his second issue, Appellant claims the trial court erred in concluding
that Appellee’s conduct was not sufficiently outrageous to support an
Intentional Infliction of Emotional Distress (“IIED”) claim. Id. at 20.
This Court recently addressed these exact issues involving the instant
Appellant and Nadine McGraw, a physician’s assistant who worked with
Appellant and Appellee. Greenberg v. McGraw, 2017 WL 1788356 *1 (Pa.
Super. filed May 5, 2017) (“Greenberg I”). In that case, Appellant alleged
that because he terminated Ms. McGraw’s employment, Ms. McGraw made a
report to the Board of Medicine that included statements similar to the
statement that Appellee provided to the investigator regarding Appellant’s
prescription drug use.2
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2
The statements giving rise to the instant matter took place within the
scope of that Greenberg I investigation.
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In Greenberg I, Appellant alleged that Ms. McGraw made defamatory
statements to the Board of Medicine in retaliation for Appellant having
terminated her employment. In particular, Appellant claimed that Ms.
McGraw told the investigator for the Board of Medicine that Appellant “was
addicted to drugs” and had “permitted her to perform medical procedures on
patients that were outside her scope of practice.” Id. As a result of Ms.
McGraw’s allegations, the Board of Medicine investigated Appellant’s fitness
to practice medicine. Id.
The trial court sustained Ms. McGraw’s Preliminary Objections and this
Court affirmed, holding that Ms. McGraw had absolute immunity from
Appellant’s claims for Defamation and IIED for the statements that she
made to Board of Medicine because the Board’s proceedings “constitute a
quasi-judicial proceeding[.]” Id. at *8, *9.
The instant case presents nearly identical facts. The statements made
by Appellee were made only to a Board of Medicine investigator in the
context of the Board’s investigation. Based on the holding in Greenberg I,
in which this Court held that quasi-judicial immunity applies to statements
made by witnesses to an investigator a Board of Medicine investigation, we
find that the trial court properly sustained the Preliminary Objections in this
case to the Defamation and IIED claims.
With respect to Appellant’s claim that the trial court erred in holding
that the Medical Practice Act provides absolute immunity to claims sounding
in Defamation and Abuse of Process, as in Greenberg I, we find this claim
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waived. First, we note that, contrary to Appellant’s claim, the trial court did
not make such a holding, but rather sustained Ms. McGraw’s Preliminary
Objections on the basis of the common law principle of judicial immunity.
Moreover, Appellant failed to develop this claim on appeal. See Karn v.
Quick & Reilly, Inc., 912 A.2d 329, 336 (Pa. Super. 2006) (“[A]rguments
which are not appropriately developed are waived. Arguments not
appropriately developed include those where the party has failed to cite any
authority in support of a contention.”) (citation omitted). Thus, Appellant’s
first two claims on appeal fail.
Abuse of Process Claim
In his third issue, Appellant claims that the trial court erred in
concluding that Appellant failed to plead a legally sufficient Abuse of Process
claim. Appellant’s Brief at 19. He argues that his allegation—that “Appellee
initiated and employed legal proceedings before the Board of Medicine in the
course of an ongoing vendetta against [him], which statements were made
to state authorities to harass him and to attract attention away from
[Buckley’s] own tortious conduct[]”—was sufficient to state an Abuse of
Process claim. Id.
Abuse of process is the use of a legal proceeding to accomplish a
purpose for which the proceeding was not designed. “The gravamen of
abuse of process is the perversion of the particular legal process for a
purpose of benefit to the defendant, which is not an authorized goal of the
procedure.” Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998).
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The tort of Abuse of Civil Process, however, focuses solely on the
misuse or perversion of the judicial process once it is initiated, not on the
wrongful initiation of the judicial process itself. See Rosen v. Tesoro
Petroleum Corp., 582 A.2d 27, 32-33 (Pa. Super. 1990) (explaining that a
plaintiff has not stated a cause of action for Abuse of Process where the
allegations in the Complaint amount only to a charge of initiation of litigation
for a wrongful purpose and not the perversion of a properly-initiated
litigation).
The facts underlying this matter and the allegations in the Complaint
at issue here are virtually indistinguishable from those in Greenberg I. This
Court in Greenberg I held that Appellant could not base his Abuse of
Process claim on the “wrongful initiation” of proceedings, but must allege a
“perversion of the legal process.” Greenberg I, 2017 WL 1788356 at *11.
Appellant only alleged that Ms. McGraw made false statements to a Board
investigator. In other words, he alleged that Ms. McGraw wrongfully
initiated judicial proceedings. Since Appellant did not allege that Ms.
McGraw “perverted the legal process after its issuance[,]” this Court
affirmed the dismissal of the claim. Id. (emphasis in original).
In the instant case, we agree with the trial court that Appellant’s
“generic averment that [Appellee] initiated an investigation into
[Appellant’s] fitness to practice medicine to accomplish a purpose for which
the process was not designed” without more, is not sufficient to state a claim
for Abuse of Process. See Trial Ct. Op. at 7 (emphasis added). Moreover,
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as in Greenberg I, Appellant failed to plead in the instant Complaint that
Appellee “perverted the legal process after its issuance.” See Greenberg I
at *11. Thus, we likewise find that Appellant failed to state a claim in his
Complaint for Abuse of Process.3
Defamatory Nature of the Statements Made to the Board of Medicine
In his last issue, Appellant claims that the trial court erred in finding
that statements Appellee made concerning alleged illicit drug use were
incapable of defamatory meaning. Appellant’s Brief at 17. Appellant
acknowledges that he did not allege facts confirming that Appellee explicitly
told the Board of Medicine investigator that Appellant had a drug problem.
Id. at 18. Rather, Appellant avers that he is confident that discovery will
reveal that, through her statements, Appellee “intended exactly the false
misapprehension that [Appellant] had a drug problem.” Id. at 17.
As we concluded, supra, based on the holding in Greenberg I,
judicial immunity applies to protect Appellee from civil liability arising from
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3
Appellant also claims that the trial court erred in concluding that, as a
matter of law, in order to state a claim for Abuse of Process, Appellant was
required to “allege a threat, extortion, blackmail, or other request for a
collateral action.” Id. at 19-20 (emphasis added). Appellant
mischaracterizes the trial court’s observation that Appellant did not “allege
any threat extortion, blackmail, or any other request for collateral action” as
requiring that Appellant set forth such an allegation in order to establish a
legally sufficient Abuse of Process claim. See Trial Ct. Op., 12/30/15, at 7.
Rather, Appellant’s Abuse of Process claim was insufficient as a matter of
law because he failed to allege that Appellee perverted the legal process in
some way.
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her statements to the Board of Medicine investigator during the course of an
on-going Board investigation. Accordingly, we need not reach the merits of
this claim.
Order affirmed.
Judge Stabile joins the memorandum.
Judge Lazarus files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
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