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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee 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.
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED AUGUST 08, 2017
I respectfully dissent from the learned Majority’s decision. I do not
believe that under these circumstances judicial immunity protects Buckley
from liability arising from her statements to the Board of Medicine.
In holding that Buckley’s statements were subject to judicial privilege,
the majority cited to “quasi-judicial immunity,” which it believes applies to
statements made by witnesses to a Board of Medicine Investigator.
Greenberg v. McGraw, 2017 WL 1788356 *3 (Pa. Super. Filed May 5,
2017) (judicial privilege is applicable to communications made prior to
institution of proceedings if such communications were pertinent and
material and had been issued in regular course of preparing for
contemplated proceedings). Statements made in pleadings and the regular
course of judicial proceedings are absolutely privileged. Pollina v.
J-A03012-17
Dishong, 98 A.3d 613, 618 (Pa. Super. 2014). Here, however, Buckley
made statements to an investigator from the Board of Medicine, allegedly
with the hope of maliciously initiating a proceeding to harass Dr. Greenberg.
Thus, the statements were not part of a judicial proceeding and are not
accorded absolute privilege on this basis. Id.
Moreover, I do not believe that the investigation is a “quasi-judicial
proceeding” to which privilege would apply. Id. at 622 (quasi-judicial
immunity extends to witnesses testifying at adjudicatory hearing). In
determining whether an individual is entitled to quasi-judicial immunity, we
must first examine the nature of the actions complained of to ascertain
whether they were performed within the quasi-judicial adjudicatory function.
Id. at 621. “The fact that an administrative agency performs certain
adjudicatory functions will not justify the extension of quasi-judicial
immunity to non-adjudicatory function of the same agency.” Id. Here,
there is a clear distinction between the adjudicatory and investigative
functions of the Board of Medicine, and I would decline to extend quasi-
judicial immunity to preliminary statements proffered to the investigative
arm of the Board of Medicine. Pollina, supra.
Moreover, I note that the statute governing reports to the Board
contains the following: “Any person or facility who reports pursuant to this
section in good faith and without malice shall be immune from any civil
or criminal liability arising from such report.” 63 P.S. § 422.4(f) (emphasis
added). Thus, this statement implies that if reports to the Board of Medicine
-2-
J-A03012-17
are made in bad faith, a remedy may be available. I see nothing therein
that precludes recovery in a defamation action under this circumstance.1
Accordingly, I disagree with majority’s affirmation of the trial court in
sustaining Buckley’s preliminary objections in the nature of a demurrer as to
Dr. Greenberg’s defamation cause of action.
____________________________________________
1
I acknowledge that the confidentiality provisions that apply to the
complaint and investigation process when a complainant makes a statement
regarding a medical doctor to the Board of Medicine may constitute a basis
for absolute privilege of statements made to investigators. See 40 P.S. §
1303.907(a); 49 Pa.Code § 16.55(c). These provisions provide for privilege,
but I do not read them to provide, unequivocally, an absolute privilege.
Significantly, both of the above provisions indicate that the Board can give
written consent to disclose information provided during the investigation
process. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866
A.2d 270 (Pa. 2005). However, nothing in this Dissent shall be construed as
diminishing the protections provided for whistleblowers in the Pennsylvania
Whistleblower Law, 43 P.S. §§ 1421-1428. See 43 P.S. § 1423(c) (“An
appropriate authority to which a violation of this act was reported may not
disclose the identity of a whistleblower without the whistleblower’s consent
unless disclosure is unavoidable in the investigation of the alleged
violation.”); 43 P.S. § 1423(a) (“No employer may discharge, threaten or
otherwise discriminate or retaliate against an employee . . . because the
employee . . . makes a good faith report or is about to report, verbally or in
writing, to the employer or appropriate authority an instance of wrongdoing
or waste . . . as defined in this act.”).
-3-