Greenberg, M. v. McGraw, N.

J-A05022-17
2017 PA Super 136MICHAEL R. GREENBERG, M.D., MBA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NADINE M. MCGRAW,
Appellee No. 759 WDA 2016
Appeal from the Order Entered April 28, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2015-3725
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
OPINION BY BENDER, P.J.E.: FILED MAY 05, 2017
Appellant, Michael R. Greenberg, M.D., MBA, appeals from the trial
court‟s April 28, 2016 order sustaining Appellee‟s, Nadine M. McGraw,
preliminary objections in the nature of a demurrer. Upon careful review, we
affirm.
The trial court provided the factual background and procedural history
of this case as follows:
The matter before the [c]ourt are Preliminary Objections in the
nature of a demurrer, filed by [Appellee] Nadine M. McGraw. In
2005, [Ms.] McGraw … enrolled in the Graduate Physician
Assistant‟s Program at Lock Haven University of Pennsylvania in
Lock Haven, Clinton County, Pennsylvania. Complaint, ¶ 26.
[Appellant, Dr.] Michael R. Greenberg[,] … was instrumental in
founding the Lock Haven program, and has served as its Medical
Director, Chair of Admissions, and as a Clinical Professor since
its inception in 1996. Id. at ¶ 17. In June 2006, [Dr.]
Greenberg began serving as [Ms.] McGraw‟s preceptor in the
Lock Haven program. Id. at ¶ 27. After [Ms.] McGraw
graduated in June 2007, she gained two different physician‟s
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assistant jobs, but was terminated from each. Id. at ¶¶ 28-31.
After being terminated twice, according to [Dr.] Greenberg,
[Ms.] McGraw “retaliated by making a series of reports against
her supervising physicians to Medicare and the Pennsylvania
Board of Medicine [(referred to herein as “Board”)], all of which
were eventually proven to be unfounded.” Id. at ¶ 32.
In November 2008, [Dr.] Greenberg hired [Ms.] McGraw as a
physician‟s assistant at his private medical practice, Clinton
Medical Associates, Ltd. (“CMA”). Id. at ¶¶ 16, 33. However,
[Ms.] McGraw was terminated by CMA due to insubordination in
March 2012. Id. at ¶ 34. Again, according to [Dr.] Greenberg,
[Ms.] McGraw “retaliated by making a series of false defamatory
reports” against Dr. Greenberg, which alleged that he “was
addicted to drugs” and that he had “permitted her to perform
medical procedures on patients that were outside her scope of
practice.” Id. at ¶¶ 35, 39. [Dr.] Greenberg alleges that said
reports were made to an investigator from the Commonwealth of
Pennsylvania State Board of Medicine and, through unspecified
means, to the Federal Aviation Administration and the
Commonwealth of Pennsylvania Department of Labor and
Industry. Id. at ¶¶ 35, 40-42, 46. As a result of [Ms.]
McGraw‟s allegations, the Board of Medicine began investigating
[Dr.] Greenb[e]rg‟s fitness to practice medicine, which [Dr.
Greenburg] avers resulted in damages related to emotional
distress, harm to his professional reputation, pecuniary loss, and
legal expenses. Id. at ¶¶ 49, 52. On June 22, 2015, [Dr.]
Greenberg commenced this tort action, bringing claims for
Defamation, Abuse of Process, and Intentional Infliction of
Emotional Distress. Id. at ¶¶ 55-70. [Ms. McGraw] filed
preliminary objections in the nature of a demurer [sic] based on
privilege and failure to state a claim upon which relief can be
granted as to each count.
Trial Court Opinion (TCO), 4/28/2016, at 1-2.1
____________________________________________
1
The trial court relied on its April 28, 2016 order and opinion granting Ms.
McGraw‟s preliminary objections and dismissing the case as its Pa.R.A.P.
1925(a) opinion. See Trial Court Opinion Pursuant to Pa.R.A.P. 1925(a),
6/21/16, at 1 (“After a thorough review of [Dr. Greenberg‟s] Statement of
Errors, particularly paragraphs 35-41, this [c]ourt has concluded that all of
the issues raised are addressed in the [April 28, 2016] Opinion and Order.
(Footnote Continued Next Page)
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The trial court sustained Ms. McGraw‟s preliminary objections for each
of Dr. Greenberg‟s above-stated claims. On May 23, 2016, Dr. Greenberg
filed a timely notice of appeal. Thereafter, he filed a timely concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). On appeal, Dr. Greenberg raises the following 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 [Ms. McGraw] 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 [Dr. Greenberg‟s] allegations that [Ms.
McGraw] maliciously initiated an investigation into [Dr.
Greenberg‟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?
3. 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.
Dr. Greenberg‟s Brief at 3.
Initially, we set forth our standard of review:
_______________________
(Footnote Continued)
The [c]ourt hereby incorporates its April 28, 2016 Opinion and Order as its
1925(a) Opinion and attaches it hereto.”); see also Pa.R.A.P. 1925(a)(1)
(“Except as otherwise prescribed by this rule, upon receipt of the notice of
appeal, the judge who entered the order giving rise to the notice of appeal,
if the reasons for the order do not already appear of record, shall forthwith
file of record at least a brief opinion of the reasons for the order….”).
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[O]ur 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).
First, we turn to Dr. Greenberg‟s issue regarding “[w]hether the trial
court erred in holding that the Medical Practice Act, 63 P.S. § 422.4, [2]
____________________________________________
2
This section of the Medical Practice Act is entitled “Impaired professionals.”
With respect to immunity, this section provides, in relevant part, the
following:
(f) Reports to the board.--Any hospital or health care facility,
peer or colleague who has substantial evidence that a
professional has an active addictive disease for which the
professional is not receiving treatment, is diverting a controlled
substance or is mentally or physically incompetent to carry out
the duties of his or her license shall make or cause to be made a
report to the board: Provided, [t]hat any person or facility who
acts in a treatment capacity to an impaired physician in an
approved treatment program is exempt from the mandatory
reporting requirements of this subsection. 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
(Footnote Continued Next Page)
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provides absolute immunity to claims sounding in defamation and abuse of
process where the Complaint alleges that [Ms. McGraw] maliciously and
intentionally made false reports to a Board of Medicine investigator[.]” Dr.
Greenberg‟s Brief at 3. In reviewing the trial court‟s opinion, we are puzzled
by the phrasing of this issue by Dr. Greenberg, as the trial court does not
hold that the Medical Practice Act provides absolute immunity to defamation
and abuse of process claims. Instead, the trial court sustained Ms. McGraw‟s
preliminary objections related to Dr. Greenberg‟s defamation claim on the
basis of the common law principle of judicial privilege, explaining that “[t]he
Board of Medicine performs discretionary, quasi-judicial functions, and [Ms.
McGraw] is protected by absolute privilege for her participation in the
process as a witness.” TCO at 4 (citation omitted). 3 As a matter of policy, it
_______________________
(Footnote Continued)
from such report. Failure to provide such report within a
reasonable time from receipt of knowledge of impairment shall
subject the person or facility to a fine not to exceed $1,000. The
board shall levy this penalty only after affording the accused
party the opportunity for a hearing, as provided in Title 2 of the
Pennsylvania Consolidated Statutes (relating to administrative
law and procedure).
63 P.S. § 422.4(f).
3
Indeed, despite his statement of this issue above, in his reply brief, Dr.
Greenberg contends that “the trial court erred in sustaining [Ms. McGraw‟s]
preliminary objections and dismissing [Dr. Greenberg‟s] Complaint by
holding that [Ms. McGraw] was entitled to ‘absolute privilege’ for her
defamatory statements the trial court determined arose from the
quasi-judicial function performed by the Board of Medicine in the
physician disciplinary process.” Dr. Greenberg‟s Reply Brief at 1
(emphasis added). Moreover, Dr. Greenberg spends the majority of his
(Footnote Continued Next Page)
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reasoned that judicial privilege should apply under these circumstances in
order “to encourage witnesses to give complete and unintimidated
testimony.” Id. at 4 (citations and brackets omitted). We agree.4
We begin our analysis by providing some background on judicial
privilege. “All communications pertinent to any stage of a judicial
proceeding are accorded an absolute privilege which cannot be destroyed by
abuse. Thus, statements by a party, a witness, counsel, or a judge cannot
be the basis of a defamation action whether they occur in the pleadings or in
open court.” Binder v. Triangle Publications, Inc., 275 A.2d 53, 56 (Pa.
1971) (citations omitted). This “protected realm has traditionally been
regarded as composed only of those communications which are issued in the
_______________________
(Footnote Continued)
argument on this issue discussing the applicability of judicial privilege to this
matter, and not whether the Medical Practice Act provides absolute immunity
to defamation and abuse of process claims. See Dr. Greenberg‟s Brief at 8-
14. Thus, we do not consider the immunity afforded by the Medical Practice
Act, and how it would relate to — or if it would supplant — the common law
principle of judicial privilege. 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). Additionally, despite Dr. Greenberg‟s statement of this
issue above, the trial court does not state that any privilege bars Dr.
Greenberg‟s abuse of process claim; instead, it dismissed that claim because
it determined that Dr. Greenberg failed to state a claim for abuse of process.
See TCO at 4-5.
4
Before delving into our analysis of this issue, we note that “[w]hether a
privilege exists/applies in a given context is a question of law for the court.”
Doe v. Wyoming Valley Health Care System, Inc., 987 A.2d 758, 767
(Pa. Super. 2009) (citation omitted).
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regular course of judicial proceedings and which are pertinent and material
to the redress or relief sought.” Post v. Mendel, 507 A.2d 351, 355 (Pa.
1986) (citation omitted; emphasis in original). Thus, “[w]hen alleged
libelous or defamatory matters, or statements, or allegations and averments
in pleadings or in the trial or argument of a case are pertinent, relevant and
material to any issue in a civil suit, there is no civil liability for making any of
them.” Id. (citation omitted).
Significantly, judicial privilege is applicable to “communications made
prior to the institution of proceedings” if such communications were
“pertinent and material” and “ha[d] been issued in the regular course of
preparing for contemplated proceedings.” Id. at 356. See also Milliner v.
Enck, 709 A.2d 417, 420 (Pa. Super. 1998) (“It is clear that an allegedly
defamatory communication is absolutely privileged when it is published prior
to a „judicial proceeding‟ as long as that communication has a bearing on the
subject matter of the litigation.”) (citation omitted). Further, we have
observed that, “[t]he purpose for which the privilege exists cannot fully be
achieved by limiting the privilege to structured or formal proceedings.”
Smith v. Griffiths, 476 A.2d 22, 25 (Pa. Super. 1984). Accordingly, “the
privilege extends not only to communications made in open court, but also
encompasses pleadings and even less formal communications such as
preliminary conferences and correspondence between counsel in furtherance
of a client‟s interest.” Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa. Super.
1991) (citations omitted). In fact, the absolute privilege has been extended
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to statements made by private parties to law enforcement officials for the
purpose of initiating the prosecution of criminal charges, see id. at 42, as
well as to statements made to mental health officials for the purpose of
initiating involuntary commitment proceedings, Marino v. Fava, 915 A.2d
121, 124 (Pa. Super. 2006). Cf. Schanne v. Addis, 121 A.3d 942, 952 (Pa.
2015) (holding that “the judicial privilege does not apply to an allegation
[concerning a school teacher] made by an adult[, former student,] before
commencement of any quasi-judicial proceeding and without an intent
that it lead to a quasi-judicial proceeding”) (footnote omitted; emphasis
added).
Our Supreme Court has previously discussed the importance of judicial
privilege, specifically within the context of protecting witnesses:
The reasons for the absolute privilege are well recognized.
A judge must be free to administer the law without fear of
consequences. This independence would be impaired were
he to be in daily apprehension of defamation suits. The
privilege is also extended to parties to afford freedom of
access to the courts, to witnesses to encourage their
complete and unintimidated testimony in court, and to
counsel to enable him to best represent his client‟s
interests. Likewise, the privilege exists because the courts
have other internal sanctions against defamatory
statements, such as perjury or contempt proceedings.
[Binder,] 275 A.2d at 56 (citation omitted). See also, Post[,]
507 A.2d [at] 354 … (“The origin of the rule was the great
mischief that would result if witnesses in courts of justice were
not at liberty to speak freely, subject only to the animadversion
of the court.... The rule is inflexible that no action will lie for
words spoken or written in the course of giving evidence.”)[.]
The United States Supreme Court addressed the policy concerns
underlying the witness immunity doctrine in the oft-cited
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decision of Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108,
1112-1114, 75 L.Ed.2d 96 (1983) (footnotes and citations
omitted):
The immunity of parties and witnesses from subsequent
damages liability for their testimony in judicial proceedings
was well established in English common law. Some
American decisions required a showing that the witness‟
allegedly defamatory statements were relevant to the
judicial proceeding, but once this threshold showing had
been made, the witness had an absolute privilege. The
plaintiff could not recover even if the witness knew the
statements were false and made them with malice.
In the words of one 19th-century court, in damages suits
against witnesses, “the claims of the individual must yield
to the dictates of public policy, which requires that the
paths which lead to the ascertainment of truth should be
left as free and unobstructed as possible.” A witness‟
apprehension of subsequent damages liability might induce
two forms of self-censorship. First, witnesses might be
reluctant to come forward to testify. And once a witness is
on the stand, his testimony might be distorted by the fear
of subsequent liability. Even within the constraints of the
witness‟ oath there may be various ways to give an
account or to state an opinion. These alternatives may be
more or less detailed and may differ in emphasis and
certainty. A witness who knows that he might be forced to
defend a subsequent lawsuit, and perhaps to pay
damages, might be inclined to shade his testimony in favor
of the potential plaintiff, to magnify uncertainties, and thus
to deprive the finder of fact of candid, objective, and
undistorted evidence. But the truthfinding process is
better served if the witness‟ testimony is submitted to “the
crucible of the judicial process so that the factfinder may
consider it, after cross-examination, together with the
other evidence in the case to determine where the truth
lies.”
LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 188-89 (Pa.
1999).
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Because of these strong public policy concerns, courts have expanded
the absolute privilege — which traditionally applied only to defamation
actions — to other torts:
The witness immunity doctrine has been applied by the Superior
Court in actions other than for defamation when the court has
determined that the extension of immunity is in furtherance of
the policy underlying the doctrine. See Clodgo v. Bowman,
411 Pa. Super. 267, 601 A.2d 342, 345 (1992), appeal granted,
532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as having
been improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993),
(“The form of the cause of action is not relevant to application of
the privilege. Regardless of the tort contained in the complaint,
if the communication was made in connection with a judicial
proceedings [sic] and was material and relevant to it, the
privilege applies.”)[;] Moses v. McWilliams, 379 Pa. Super.
150, 549 A.2d 950, 957 (1988) (“While it is true that immunity
from civil liability in judicial proceedings has been applied most
frequently in defamation actions, many courts, including those in
Pennsylvania, have extended the immunity from civil liability to
other alleged torts when they occur in connection with judicial
proceedings.”)[.]
Id. at 189-90 (brackets in original and added).
As discussed above, judicial privilege applies to communications issued
in the regular course of judicial proceedings, which “include all proceedings
in which an officer or tribunal exercises official functions.” Doe, 987 A.2d at
766 (citation omitted). In addition, “[o]ur case law applies privilege to
„quasi-judicial‟ proceedings as well.” Id. (citations omitted). “The test to
determine if a function is „quasi-judicial‟ is whether it involves the exercise of
discretion and requires notice and a hearing.” Urbano v. Meneses, 431
A.2d 308, 311 (Pa. Super. 1981) (citations omitted). More specifically, “we
look to the presence and exercise of discretionary decision-making authority
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(i.e., applying the law, rules and regulations to the factual matrix of a given
case) as well as the existence of procedural safeguards in the administrative
proceeding similar to the safeguards afforded at a judicial proceeding (e.g.,
notice, hearing, right to cross-examine witnesses, etc.).” Pollina v.
Dishong, 98 A.3d 613, 620-21 (Pa. Super. 2014) (citation omitted). This
Court has noted that “the majority of jurisdictions apply absolute privilege to
defamatory statements which are made in relation to a „quasi-judicial
proceeding.‟” Milliner, 709 A.2d at 419 n.1 (citations omitted). For
instance, we have extended the absolute privilege to a witness testifying at a
hearing before the National Labor Relations Board. Doe, 987 A.2d at 767-
68. See also Pollina, 98 A.3d at 621 (citing Doe for the proposition that
“[q]uasi-judicial immunity has also been extended to witnesses testifying at
an administrative adjudicatory hearing”).
In the case at bar, Dr. Greenberg alleged that, “[f]ollowing [Ms.]
McGraw‟s termination of employment with CMA, [Ms.] McGraw made a
retaliatory and defamatory and false report to the Board of Medicine falsely
alleging that Dr. Greenberg was addicted to drugs and that Dr. Greenberg
had permitted her to perform medical procedures on patients that were
outside her scope of practice.” Complaint, ¶ 39. The trial court reasoned
that judicial privilege applied because the Board of Medicine performs
discretionary, quasi-judicial functions, explaining:
[Ms. McGraw‟s] statements to the Board of Medicine investigator
are subject to an absolute privilege. The investigator was
gathering confidential information about [Dr. Greenberg], a
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licensee of the Board, in order to evaluate [Dr. Greenberg‟s]
fitness to practice medicine. See 40 P.S. § 1303.907(a), 49 Pa.
Code § 16.55(c). The information goes to a Board prosecutor,
“an assistant counsel assigned by the Office of General Counsel”
who uses discretionary decision-making authority to determine
whether to initiate the filing of formal charges. 49 Pa. Code §
16.41, § 16.55. Throughout the disciplinary process, quasi-
judicial functions are performed by investigating complaints,
filing formal charges, and entering into negotiations. Id. §
16.55. Information may ultimately be used in a formal hearing
held before a hearing examiner, and the decision may be
appealed to the Board, and then the Commonwealth Court. Id.
§ 16.56-58. The Board of Medicine performs discretionary,
quasi-judicial functions, and [Ms. McGraw] is protected by
absolute privilege for her participation in the process as a
witness….
TCO at 4.5
We note that, in his brief, Dr. Greenberg does not dispute that the
regulatory procedure laid out by the trial court applies; instead, he only
contends that Ms. McGraw‟s “statements were not made during any quasi-
judicial proceedings or hearings before the State Board [o]f Medicine.” Dr.
Greenberg‟s Brief at 13 (emphasis in original).6 Dr. Greenberg emphasizes
that Ms. McGraw‟s “statements were made during the investigatory phase of
____________________________________________
5
In its analysis, the trial court quotes from, and “adopts [the] well-reasoned
logic” of, an opinion sustaining the defendant‟s preliminary objections issued
in Greenberg v. Buckley, No. 2015-2372, a case from “the Centre County
Court of Common Pleas consider[ing] judicial privilege in a matter involving
similar facts and the same plaintiff as in the case sub judice.” TCO at 3-4.
6
Dr. Greenberg does not specifically assert that an alternative procedure is
followed by the State Board of Medicine; he does not point us to any other
statutes or regulations addressing how reports to the Board of Medicine are
processed and handled. As such, we presume that the regulations cited by
the trial court are controlling.
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the disciplinary proceedings, and [Ms. McGraw] was certainly not acting in
an „adjudicatory capacity‟ at the time she made the statements.” Id. at 12.
In support of his argument, Dr. Greenberg relies on our decision in
Pollina, supra. In that case, we declined to extend both judicial and quasi-
judicial immunity to an independent contractor hired as a consultant by a
state bureau to investigate, analyze, and formulate an opinion regarding the
credibility of fraud allegations made against a dentist. Pollina, 98 A.3d at
615-622. Based on his investigation, the consultant issued an analysis and
opinion to the bureau finding the claims of fraud to be credible. Id. at 615-
16. However, the fraud claims later proved to be unsupported by evidence.
Id. at 616. As a result, the consultant was sued by the dentist and his
practice for professional negligence and intentional infliction of emotional
distress, primarily on the basis that “[the consultant] failed to exercise due
care in his investigation, analysis and opinion to the [bureau.]” Id. at 617-
18. In response to the complaint, the consultant raised the defense of
judicial and/or quasi-judicial immunity. Id. at 617, 619-20.
Initially, we determined that judicial immunity did not apply,
explaining that, at the time of the investigation, “no lawsuit or other judicial
proceeding [regarding the subject of the investigation] was pending, nor was
any such judicial proceeding contemplated or subsequently initiated.” Id. at
619 (footnote omitted). Furthermore, the Pollina panel determined that the
consultant “did not perform his investigation, conduct his analysis or provide
his opinions to the [bureau] for the sole purpose of initiating criminal
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proceedings against [the dentist and his practice].” Id. at 619 (footnote
omitted). We noted that the consultant‟s “actions were performed as an
independent contractor hired as a consultant by the [bureau] for the
purpose of providing his professional opinions to the [bureau,]” and that he
was “contractually obligated to provide his opinions to the [bureau] pursuant
to a business arrangement.” Id. at 619 n.6. Accordingly, because there
was “no evidence that [the consultant‟s] actions were performed in relation
to any judicial proceeding, pending or impeding,” we concluded that judicial
immunity did not apply. Id. at 620 (footnote omitted).
We also concluded that the consultant‟s actions were not protected by
quasi-judicial immunity. We explained that, “[i]n order to determine
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 (emphasis added; footnote omitted).7 As stated supra, the consultant
____________________________________________
7
In support of this proposition, we cited to Myers v. Com., Dept. of Labor
and Industry, 458 A.2d 235, 238 (Pa. Super. 1983) (examining the “nature
of the duties” of workmen‟s compensation referees to determine whether a
referee enjoys judicial or quasi-judicial immunity); and Tulio v. Com.,
State Horse Racing Com’n, 470 A.2d 645, 649 (Pa. Cmwlth. 1984)
(explaining that “adjudications within an administrative agency share
enough of the characteristics of the judicial process (e.g., issuing subpoenas,
ruling on evidence, regulating hearings, and making or recommending
decisions), that those who participate in them should be absolutely immune
from suit for damages. An important element which must be established
before this immunity can apply, however, is whether or not the actions
(Footnote Continued Next Page)
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was sued for “his investigation, analysis and issuance of an opinion” to the
bureau. Id. First, we determined that the bureau that hired him
“investigat[ed] allegations of misconduct,” and its investigation of the
dentist and his office “[could not] be characterized as a quasi-judicial
function” because “there [was] no evidence of record that it shared the
characteristics of the adjudicatory process that would justify the application
of quasi-judicial immunity.” Id. at 622 (citation omitted; emphasis added).8
Second, we discerned that the bureau did not exercise discretionary
decision-making authority because it was required by federal regulations to
take the action it did. Id. at 622. Third, we emphasized that the dentist
and his practice “d[id] not allege any liability based on [the consultant‟s]
participation as a witness in [a quasi-judicial proceeding] (i.e., his deposition
testimony).” Id. Rather, liability was based upon his negligent
investigation, analysis and formulation of an opinion for the bureau. Id. at
623. We went on to explain that “judicial immunity does not extend to
professional negligence actions which are brought against an expert witness
_______________________
(Footnote Continued)
complained of were performed within the quasi-judicial function. If not, then
quasi-judicial immunity cannot apply.”).
8
We also pointed out that a separate bureau within the same state agency
performed “adjudicatory functions[,]” featuring the filing and service of legal
documents, discovery, presentation of witnesses and evidence at hearings
before a presiding officer, the issuance of a determination adjudicating the
contested issues of law and fact, and the issuance of an appropriate order,
decree, or decision. Id.; see also id. at 622 n.9.
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when the allegations of negligence are not premised on the substance of the
expert‟s opinion.” Id. We observed that “the professional negligence claims
against [the consultant] are not based on the substance of his professional
opinions or deposition testimony during [a quasi-judicial proceeding].
Rather, [the] claims against [the consultant] are based on his negligence in
performing his investigation, conducting his analysis and in formulating his
opinions.” Id.
We find Pollina to be distinguishable from the matter at hand. In the
case sub judice, Ms. McGraw allegedly “made a retaliatory and defamatory
and false report to the Board of Medicine....” See Complaint, ¶ 39. The
regulations cited by the trial court — which, again, are not disputed by Dr.
Greenberg to apply — state that complaints are assigned to “prosecution and
investigatory staff” who, along with medical consultants as required, make a
determination regarding whether a complaint merits consideration. 49 Pa.
Code § 16.55(b). The Board prosecutor — who is responsible for
prosecuting disciplinary matters before the Board — initiates a reasonable
inquiry or investigation “to determine the truth and validity of the allegations
in the complaint.” Id.; 49 Pa. Code § 16.41. After reviewing “the
complaint, documentation, records and other materials obtained during the
course of an investigation[,]” the Board prosecutor “determine[s] whether to
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initiate the filing of formal charges.” 49 Pa. Code § 16.55(c). 9 The Board
prosecutor “may enter into negotiations at any stage of the complaint,
investigation or hearing process to settle the case by consent agreement.”
49 Pa. Code § 16.55(d).
Additionally, hearing examiners are appointed by the Governor‟s Office
of General Counsel to hear matters, including disciplinary matters, before
the Board. 49 Pa. Code § 16.51. Formal disciplinary matters are open to
the public. 49 Pa. Code § 16.56. Upon application for review by any party
or upon the Board‟s own motion, the Board will review the hearing
examiner‟s decision. 49 Pa. Code § 16.57(a)(1). During an appeal, “[t]he
Board will review the entire record and, if it deems it advisable, may hear
additional testimony from persons already deposed or from new witnesses
as well as arguments of counsel to make a Board decision.” 49 Pa. Code §
16.57(a)(2). Ultimately, “[t]he Board will issue its final decision, along with
its findings of fact and conclusions of law, which will be sent by mail to the
parties involved.” 49 Pa. Code § 16.57(a)(4). Thereafter, the respondent
may appeal the Board‟s decision to the Commonwealth Court. 49 Pa. Code
§ 16.58.
____________________________________________
9
We observe that, “[t]he documents, materials or information obtained
during the course of an investigation shall be confidential and privileged
unless admitted as evidence during the course of a formal disciplinary
proceeding.” 49 Pa. Code § 16.55(c).
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Based on the foregoing, we agree with the trial court that these
procedures, at the least, constitute a quasi-judicial proceeding, as they
share many characteristics of the adjudicatory process. Discretionary
decision-making authority (for instance, whether to initiate formal charges
or to settle cases by consent agreements) and procedural safeguards (e.g.,
hearings, appeals, etc.) are patently present. Pollina, 98 A.3d at 620-21.
Further, in addition to his defamation claim, Dr. Greenberg sued Ms. McGraw
for abuse of process, which suggests that he conceded, at least at the outset
of this case, that this procedure is more akin to litigation than a mere
investigation.10
We also determine that Dr. Greenberg‟s reliance on Pollina is
inapposite here. We restate that, “in order to determine 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.” Pollina, 98 A.3d
at 621 (emphasis added). In Pollina, liability was premised on the
consultant‟s negligent investigation, analysis, and opinion to the bureau,
which this Court determined was not within a quasi-judicial adjudicatory
function. Here, in contrast, liability is premised on Ms. McGraw‟s false report
____________________________________________
10
We further note that, “the word „process‟ as used in the tort of abuse of
process „has been interpreted broadly, and encompasses the entire range of
procedures incident to the litigation process.” Rosen v. American
Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. 1993) (emphasis added).
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to the Board, which Dr. Greenberg claims she made for the purpose of
instigating the above-stated legal process against Dr. Greenberg.
See, e.g., Complaint, ¶ 52 (“At all times relevant hereto, [Ms.] McGraw
knew and intended that her false reports would result in legal
process against Dr. Greenberg’s license and was motivated by personal
animus against Dr. Greenberg and used the legal process to accomplish a
purpose or purposes for which the process was not designed, namely to
harass Dr. Greenberg and to cause him to focus his personal and
professional time and resources in defending a baseless action.”)
(emphasis added). In other words, Ms. McGraw‟s liability is based on her
role as a witness conveying information to the Board in order to initiate, at
the least, a quasi-judicial disciplinary proceeding against Dr. Greenberg.11
The weight of authority in this Commonwealth accords with extending
an absolute privilege to statements made by individuals seeking to initiate
____________________________________________
11
Other allegations in Dr. Greenberg‟s complaint bolster that he views these
proceedings as adjudicatory in nature. Dr. Greenberg claims that “[t]he
foregoing investigation was ultimately withdrawn by the Board of Medicine
when [Ms.] McGraw refused to testify to substantiate the false allegations
she previously made to the Board of Medicine‟s investigator.” Complaint, ¶
51 (emphasis added). Additionally, he alleges that “[Ms.] McGraw falsely
and maliciously made statements, innuendoes, and implications to an
investigator from the Board of Medicine that she observed drugs in Dr.
Greenberg‟s home in September 2010 before contacting emergency medical
services resulting in Dr. Greenberg‟s admission to the Lock Haven Hospital,
which contradicts her sworn deposition testimony that she had no role
whatsoever in Dr. Greenberg‟s admission to the Lock Haven Hospital in
September 2010.” Complaint, ¶ 56 (emphasis added).
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judicial or quasi-judicial proceedings. See Schanne, 121 A.3d at 949
(“[T]he judicial privilege operates by incentivizing individuals to speak freely
within a judicial (or quasi-judicial) context—or more to the point here, to
speak freely in seeking to initiate judicial or quasi-judicial proceedings.”)
(emphasis in original); Marino, 915 A.2d at 124 (concluding that
“statements [the defendant] made in the application to commit [the
plaintiff], and the statements he later made at the commitment hearing, are
absolutely privileged and cannot form the basis for a defamation action
against [the defendant].”); Milliner, 709 A.2d at 420 (rejecting the
appellant‟s argument that “statements made to the Job Center, which relate
to the initial determination of an employee‟s eligibility for unemployment
benefits are not part of the „judicial proceedings,‟ and therefore, [the]
appellees‟ statements are not cloaked with the absolute privilege”);
Pawlowski, 588 A.2d at 43 (“[T]he statements were made at least in part
for the purpose of convincing the proper authorities to institute criminal
proceedings against [the] appellant. Clearly such statements fit squarely
within the absolute privilege….”).
Moreover, we believe that public policy compels affording the absolute
privilege to individuals that report misconduct to the Board of Medicine,
regardless of their motives for doing so. “[T]he Board is the agency charged
with responsibility and authority to oversee the medical profession and to
determine the competency and fitness of its members to practice medicine
within the Commonwealth.” Perez-Rocha v. Com., Bureau of
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Professional and Occupational Affairs, State Bd. of Medicine, 933 A.2d
1102, 1108 (Pa. Cmwlth. 2007) (citations omitted). Given the importance of
having competent and fit medical professionals serving the public, we deem
it to be particularly vital that individuals have free and uninhibited access to
the Board so that they can report suspected misconduct without the fear of
facing subsequent lawsuits based on their statements. See Marino, 915
A.2d at 124 (reasoning that “according absolute privilege to statements
made in or preliminary to judicial proceedings aims at ensuring free and
uninhibited access to the judicial system[,]” and that “[a]lthough such
statements may ultimately prove to be false or maliciously motivated, they
are deemed to be absolutely privileged because the policy concerns stated
above outweigh the right of the defamation plaintiff to seek redress for
alleged harm caused by the statements”). Further, we keep in mind that,
“[a]lthough it is possible that wrong may at times be done to a defamed
party, ... it is damnum absque injuria. The inconvenience of the individual
must yield to a rule for the good of the general public.” Smith, 476 A.2d at
24 (citations, brackets, and quotation marks omitted).
Accordingly, for the above-stated reasons, we hold that the absolute
privilege applies to statements made to the Board of Medicine for the
purpose of initiating judicial or quasi-judicial proceedings against a licensee,
even if such statements are allegedly false. As such, we conclude that Dr.
Greenberg‟s defamation claim against Ms. McGraw is barred at this time. In
addition, we also apply the absolute privilege to bar Dr. Greenberg‟s
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intentional infliction of emotional distress claim, given that it occurred in
connection with the proceedings and in light of the policy implications
addressed above. See LLMD of Michigan, Inc., 740 A.2d at 189 (“The
witness immunity doctrine has been applied by the Superior Court in actions
other than for defamation when the court has determined that the extension
of immunity is in furtherance of the policy underlying the doctrine.”);
Moses, 549 A.2d at 957 (“While it is true that immunity from civil liability in
judicial proceedings has been applied most frequently in defamation actions,
many courts, including those in Pennsylvania, have extended the immunity
from civil liability to other alleged torts when they occur in connection with
judicial proceedings.”); Thompson v. Sikov, 490 A.2d 472 (Pa. Super.
1985) (applying absolute privilege to bar intentional infliction of emotional
distress claim).12
However, we note that the absolute privilege does not apply to bar Dr.
Greenberg‟s abuse of process claim, which we discuss, infra. Freundlich &
Littman, LLC v. Feierstein, -- A.3d---, 2017 WL 712911, at *7 (Pa. Super.
filed Feb. 23, 2017) (holding that “judicial privilege does not apply to [the
a]ppellants‟ claims for wrongful use of civil proceedings and abuse of
____________________________________________
12
In determining that the absolute privilege applies to Dr. Greenberg‟s
intentional infliction of emotional distress claim, we note that we can affirm
the trial court‟s order on any basis if the result is correct. See Lerner v.
Lerner, 954 A.2d 1229, 1240 (Pa. Super. 2008) (affirming the trial court‟s
order on different grounds).
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process”).13 Before addressing that issue, we add one final point on the
scope of the judicial or quasi-judicial privilege we discuss herein: this
absolute privilege would not protect Ms. McGraw from civil liability for any
defamatory statements she makes outside of the regular course of the
Board‟s proceedings. See Pawlowski, 588 A.2d at 41 n.3 (“Of course, even
an absolute privilege may be lost through over[-]publication, i.e. publication
of the defamatory material to unauthorized persons. In the case of the
judicial privilege, over-publication may be found where a statement initially
privileged because made in the regular course of judicial proceedings is later
republished to another audience outside of the proceedings.”) (citations
omitted). We reiterate that, under the Board‟s regulations discussed above,
“[t]he documents, materials or information obtained during the course of an
investigation shall be confidential and privileged unless admitted as evidence
during the course of a formal disciplinary proceeding.” 49 Pa. Code §
16.55(c). We presume that under this provision, Ms. McGraw‟s statements
to the Board investigator were not public record. We further note that Dr.
Greenberg‟s defamation claim in this case is based only on statements Ms.
____________________________________________
13
In Feierstein, this Court explained that in order to litigate a claim under
the Dragonetti Act, 42 Pa.C.S. § 8352 et seq., or for common law abuse of
process, “the aggrieved party would have to discuss, at the very least, the
pleadings and allegations underlying the prior, purportedly improper action.”
Id. at *6. Thus, for example, to apply judicial privilege to claims arising
under the Dragonetti Act for wrongful use of civil proceedings would
“virtually eviscerate this statutory cause of action, which only took effect in
1981.” Id. at *5 (footnote omitted).
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McGraw made to the Board investigator, and not on any statements she
allegedly made to his patients or to the community. See Complaint, ¶¶ 55-
65.
We next consider Dr. Greenberg‟s second issue pertaining to his abuse
of process claim, wherein he asks us to assess “[w]hether the trial court
erred and/or abused its discretion in holding that [Dr. Greenberg‟s]
allegations that [Ms. McGraw] maliciously initiated an investigation into
[Dr. Greenberg‟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[.]” Dr. Greenberg‟s Brief at 3 (emphasis added). He states that
he “alleged that [Ms. McGraw] initiated and employed legal proceedings
before the Board of Medicine in the course of an ongoing vendetta against
Dr. Greenberg, which statements were made to state authorities to harass
him and to attract attention away from her own tortious conduct.” Id. at
15. The trial court, in turn, determined that Dr. Greenberg failed to state a
claim for abuse of process because “when pleading abuse of process, „it is
not enough that the defendant had bad or malicious intentions or that the
defendant acted from spite or with an ulterior motive. Rather, there must
be an act or threat not authorized by the process, or the process must be
used for an illegitimate aim such as extortion, blackmail, or to coerce or
compel the plaintiff to take some collateral action.‟” TCO at 5 (citations
omitted). The trial court observed that “[Dr.] Greenberg makes no
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allegation even resembling extortion, blackmail, or coercion….” Id. With
this context, we begin our analysis of this issue.
This Court has previously described the common law tort of abuse of
process as follows:
The tort of “abuse of process” is defined as the use of legal
process against another primarily to accomplish a purpose
for which it is not designed. To establish a claim for abuse
of process it must be shown that the defendant (1) used a
legal process against the plaintiff, (2) primarily to
accomplish a purpose for which the process was not
designed; and (3) harm has been caused to the plaintiff.
This tort differs from that of wrongful use of civil
proceedings in that, in the former, the existence of
probable cause to employ the particular process for its
intended use is immaterial. 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. In
support of this claim, the [plaintiff] must show some
definite act or threat not authorized by the process, or
aimed at an objective not legitimate in the use of the
process ...; and there is no liability where the defendant
has done nothing more than carry out the process to its
authorized conclusion, even though with bad intentions.
Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998),
appeal denied, 556 Pa. 711, 729 A.2d 1130 (1998).
The gravamen of the misconduct for which the
liability stated ... is imposed is not the wrongful
procurement of legal process or the wrongful
initiation of criminal or civil proceedings; it is the
misuse of process, no matter how properly obtained, for
any purpose other than that which it was designed to
accomplish. Therefore, it is immaterial that the process
was properly issued, that it was obtained in the course of
proceedings that were brought with probable cause and for
a proper purpose, or even that the proceedings terminated
in favor of the person instituting or initiating them. The
subsequent misuse of the process, though properly
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obtained, constitutes the misconduct for which the
liability is imposed....
Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 627
A.2d 190, 192 (1993).
Lerner, 954 A.2d at 1238-39 (brackets in original; emphasis added). See
also Hart v. O’Malley, 647 A.2d 542, 551 n.2 (Pa. Super. 1994) (“A
preliminary injunction is a process in civil litigation. The [appellants] allege
that the preliminary injunction was instituted for an improper purpose.
However, this claim, if proven, only establishes a cause of action for
wrongful use of civil proceedings, not a claim for abuse of process.”); Rosen
v. Tesoro Petroleum Corp., 582 A.2d 27, 32-33 (Pa. Super. 1990)
(explaining that “abuse of civil process is concerned with a perversion of a
process after it is issued” and, as a consequence, “find[ing] that [the]
appellants have failed to state a claim for abuse of process, as the
allegations in their complaint amount to no more than a charge for the
initiation of litigation for a wrongful purpose, and do not charge [the]
appellees with any „perversion‟ of properly issued process”) (citation
omitted); Shaffer v. Stewart, 473 A.2d 1017, 1019, 1021 (Pa. Super.
1984) (explaining that “[w]hen the caveat [to the probate of a will] was filed
and prevented the immediate probate of the decedent‟s will, a civil
proceeding had been instituted within the meaning and intent of the
Pennsylvania statute,” and, as a result, no cause of action for abuse of
process could exist where “the averments of the amended complaint are that
the caveat was filed maliciously and without probable cause in the hope of
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effecting a settlement on behalf of persons having no legally recognizable
claim….”).
In this case, Dr. Greenberg alleged that “[Ms.] McGraw used legal
process in the form of initiating a baseless investigation into Dr.
Greenberg‟s fitness to practice medicine to accomplish a purpose for which
the process was not designed.” Complaint, ¶ 67 (emphasis added).
Additionally, he averred that, “[a]s a direct and proximate cause of [Ms.]
McGraw‟s abuse of legal process, Dr. Greenberg has suffered damages to his
personal and professional reputation, emotional distress, pecuniary losses,
and expenses including attorney[s‟] fees and litigation costs incurred in
defending himself against the proceedings initiated against him.”
Complaint, ¶ 68 (emphasis added). Based on the case law cited supra, it is
evident that an abuse of process claim cannot be based on the wrongful
initiation of proceedings, which is what Dr. Greenberg alleges Ms. McGraw
did by making false statements to a Board investigator. There are no
allegations that Ms. McGraw perverted the legal process after its
issuance. In fact, as mentioned supra, Dr. Greenberg stated that “[t]he
foregoing investigation was ultimately withdrawn by the Board of Medicine
when Ms. McGraw refused to testify to substantiate the false allegations she
previously made to the Board of Medicine‟s investigator.” Complaint, ¶ 51.
Therefore, we conclude that Dr. Greenberg has failed to state a claim for
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abuse of process.14 Accordingly, we affirm the trial court‟s order sustaining
Ms. McGraw‟s preliminary objections.15
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2017
____________________________________________
14
Again, we may affirm the trial court‟s order on any basis. Lerner, supra.15
Because we dispose of Dr. Greenberg‟s claims on the above-stated
grounds, we need not address his remaining issue pertaining to whether he
sufficiently stated a claim for intentional infliction of emotional distress.
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