WEINIK v. TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

:

MICHAEL WEINIK, D.O., :

: CIVIL ACTION

Plaintiff, :

:

v. : No. 19-3503

TEMPLE UNIVERSITY OF THE :

COMMONWEALTH SYSTEM OF :

HIGHER EDUCATION, et al., :

:

Defendants. :

_________________________________________ :

Goldberg, J. July 10, 2020

MEMORANDUM

Plaintiff Michael Weinik, D.O. has sued Defendants Temple University of the

Commonwealth System of Higher Education, Temple University of the Commonwealth System

of Higher Education, Temple University’s Lewis Katz School of Medicine, Temple University

Hospital (collectively, “Temple” or the “Temple Defendants”), Defendant Dr. Phillip Acevedo,

and Defendant Dr. Shivani Dua. The Amended Complaint alleges a violation of due process, libel,

slander, injurious falsehood, and breach of contract. The Temple Defendants (including Dr.

Acevedo) and Defendant Dua have each filed Motions to Dismiss the Amended Complaint. For

the following reasons, these Motions will be denied.

I. FACTS IN THE AMENDED COMPLAINT

The Amended Complaint sets forth the following facts: 1

1 In deciding a motion under Federal Rule of Civil Procedure, the court must accept all

factual allegations in the complaint as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to

relief. Atiyeh v. Nat’l Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591, 596 (E.D. Pa. 2010).

Plaintiff practiced medicine at Temple as a first-year Physical Medicine Rehabilitation

resident over thirty years ago. In October 1989, Plaintiff began working as an attending physician

at Temple and, from 1991 to 2001, served as an Assistant Professor in Temple’s Physical Medicine

& Rehabilitation Department. He became an Associate Professor of Physical Medicine in 2001

and a full clinical Professor in 2013, where he served until his termination in 2018. Plaintiff’s

ongoing employment with Temple was renewed on an annual basis by a letter agreement,

reappointing him as Professor of Clinical Physical Medicine and Rehabilitation. (Id. ¶¶ 11–16,

26.)

In 2015, the Dean of the School of Medicine appointed Plaintiff as Interim Chair of the

Department of Physical Medicine and Rehabilitation because, according to the Dean, the current

chair—Dr. Ian Matin—was allowing the program to “falter with standards of education and care.”

From November of 2017 to January of 2018, Plaintiff was actively engaged in the process of the

removing Dr. Matin from his additional position as the residency program director. According to

the Amended Complaint, this action would have purportedly “dealt a severe blow” to Dr. Matin’s

career. (Id. ¶¶ 29–31.)

Plaintiff alleges that Dr. Matin, acting out of spite or other malicious motives, “set in

motion a series of events weaponizing residents he befriended, or had power over in his position

as Director, to falsely accuse [Plaintiff] of sexual harassment” knowing that this was the only way

Dr. Matin could retain his position. In the middle of January 2018, several residents purportedly

began making false allegations against Plaintiff to preempt him from removing Dr. Matin from his

position as Director. On March 11, 2018, a past resident at Temple told Plaintiff that Dr. Matin

was attempting to ruin Plaintiff’s career by enticing residents to make bogus complaints of sexual

harassment. (Id. ¶¶ 32–34, 36.)

On March 13, 2018, supervisors at Temple removed Plaintiff as interim Chair of the

Department. The following day, Plaintiff and Temple executed a fifteen-month contract to employ

Plaintiff until July 2019, without the additional compensation previously paid to him as interim

Chair. On March 15, 2018, Temple orally advised Plaintiff that he was on administrative leave,

effectively immediately. Plaintiff was given one hour to clean out his office and was not given

written notice of his alleged transgressions. (Id. ¶¶ 36–38, 40.)

Plaintiff claims that Temple officials thereafter conducted an “inept, unprofessional, and

incomplete ‘investigation’” into these sexual harassment allegations. Following a unanimous

recommendation for Plaintiff’s expulsion by Temple’s Medical Staff Executive Committee

(“MSEC”), a hearing was conducted, on July 18, 2018, pursuant to Temple University Hospital

Bylaws 8.3 and 8.4. The hearing committee, comprised of three Medical Staff members, was

chosen by the Chair of the MSEC, Vincent Cowell, M.D. Dr. Cowell also acted as the “prosecutor”

at the hearing, calling witnesses, giving testimony, and making arguments in an effort to

demonstrate to the hearing committee that it ought to agree with the recommendation of MSEC

that Plaintiff be expelled. (Id. ¶¶ 35, 42–44.)

Plaintiff appeared at the hearing and presented his own defense based on the hearing

panel’s belief that Plaintiff could not be represented by counsel under University by-laws. Plaintiff

made procedural objections to preserve his appellate rights regarding the hearing’s “substantial

noncompliance” with the bylaws’ procedures. Plaintiff also presented extensive testimony from

approximately ten witnesses, who testified to firsthand accounts rebutting every allegation made

against him. In contrast, Dr. Cowell presented no direct testimony from live witnesses and, instead,

relied entirely on hearsay statements not subject to cross examination. (Id. ¶¶ 45–47.)

One of the allegations against Plaintiff was a claim by Defendant Dr. Shivani Dua, a

resident, who asserted that Plaintiff had improperly touched her. Dr. Dua refused to be interviewed

by Temple representatives, refused to sign an email or letter giving rise to the charges, and

consciously elected not to attend the July 10, 2018 hearing to explain the substance of her

allegations. According to Plaintiff, not a single person testified at the hearing that they had

witnessed Plaintiff improperly touch Dr. Dua and, in fact, every single witness agreed that no

improper touching occurred. (Id. ¶¶ 48–49.)

At the conclusion of the hearing, after written submissions from both Dr. Cowell and

Plaintiff, the hearing committee voted unanimously to overrule the MSEC recommendation to

terminate Plaintiff. The written recommendation of the hearing committee was submitted to the

MSEC. Despite this recommendation, the MSEC chose to “reverse the report and recommendation

of the hearing committee,” pursuant to Bylaw 8.4.9, and did so without inviting Plaintiff to appear

and answer questions. Although MSEC Chair, Dr. Cowell, claimed that he did not participate in

the decision to overrule the hearing committee, his signature appeared on the August 27, 2018

letter setting forth the MSEC’s final decision. (Id. ¶¶ 51, 53, 54.)

Plaintiff alleges that “the entire procedure used by Temple to conduct its so-called

investigation pursuant to bylaw ‘safeguards’ was woefully ill-suited to provide even the most

rudimentary due process to Plaintiff. Rather Temple’s procedures encourage[d] merely a veneer

of due process to disguise a blatantly flawed system designed to create the pre-text of procedural

due process, while in reality [was] laughably inadequate to produce any semblance of the concept.”

(Id. ¶ 61.)

In June 2019, Plaintiff filed a Complaint against Defendants in the Philadelphia County

Court of Common Pleas. Defendants removed the case to federal court and, on November 19,

2019, Plaintiff filed the Amended Complaint setting forth five causes of action: (1) a claim against

the Temple Defendants pursuant to 42 U.S.C. § 1983 for a violation of his procedural due process

rights; (2) breach of contract against the Temple Defendants ; (3) libel against all Defendants; (4)

slander against all Defendants; and (5) injurious falsehood against all Defendants.

Defendant Dua and the Temple Defendants, acting on behalf of Dr. Acevedo, each filed a

Motion to Dismiss on January 15, 2020.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of

demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United

States Supreme Court has recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quotations omitted). “[T]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice” and only a complaint that

states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,

678–79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. at 678. A complaint does not show an entitlement to relief when the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct. Id. at 679.

The Court of Appeals has detailed a three-step process to determine whether a complaint

meets the pleadings standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014). First, the court

outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Next, the court

must “peel away those allegations that are no more than conclusions and thus not entitled to the

assumption of truth.” Id. Finally, the court “look[s] for well-pled factual allegations, assume[s]

their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to relief.’”

Id. (quoting Iqbal, 556 U.S. at 679). The last step is “‘a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556

U.S. at 679).

III. DISCUSSION

Defendants seek dismissal of Plaintiff’s libel, slander, and injurious falsehood claims on

two grounds. First, they contend that these claims are time-barred because all the allegedly

defamatory statements were made more than one year prior to the filing of the Complaint. Second,

Defendants posit that the statements are absolutely privileged under Pennsylvania’s judicial

proceeding privilege.

A. Whether the Claims Are Time Barred

Pennsylvania law provides a one-year statute of limitations for “an action for libel, slander

or invasion of privacy.” 42 Pa. Cons. Stat. § 5523(1). The time within which a matter must be

commenced is calculated from the time the cause of action accrued. Id. § 5502. Usually, a claim

accrues at “the occurrence of the final significant event necessary to make the claim

suable.” Barnes v. American Tobacco Co., 161 F.3d 127, 152 (3d Cir. 1998) (citing Mack Trucks,

Inc. v. Bendix–Westinghouse Auto. Air Brake Co., 372 F.2d 18, 20 (3d Cir. 1966)). “[I]t is the

duty of the party asserting a cause of action to use all reasonable diligence to properly inform

himself of the facts and circumstances upon which the right of recovery is based and to initiate suit

within the prescribed period.” Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)

(citing Hayward v. Med. Ctr. of Beaver Cty., 608 A.2d 1040, 1042 (1992)); see also Pocono Int'l

Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983).

Generally, under Pennsylvania law, in cases of “media-public defamation”—i.e., where the

publication is widely disseminated—the cause of action accrues on the date of publication of the

defamatory statements, regardless of when the plaintiff became aware of the statements. Barrett

v. Catacombs Press, 64 F. Supp. 2d 440, 446–47 (E.D. Pa. 1999). Where, however, the

communications are secret and a plaintiff could not be expected to know of the defamatory

statements, the discovery rule may apply. Id.; see also Smith v. IMG Worldwide, Inc., 437 F.

Supp. 2d 297, 306 (E.D. Pa. 2006). The “discovery rule” will toll the running of the limitations

period until “the plaintiff knows or reasonably should know (1) that he has been injured, and (2)

that his injury has been caused by another party’s conduct.” Romah v. Hygienic Sanitation Co.,

705 A.2d 841, 857 (Pa. Super. Ct. 1997) (quotations omitted). Generally, “once a plaintiff

possesses the salient facts concerning the occurrence of his injury and who or what caused it, he

has the ability to investigate and pursue his claim.” Id. (emphasis omitted) (quoting Baily v.

Lewis, 763 F. Supp. 802 (E.D. Pa. 1991), aff’d 950 F.2d 721 (3d Cir. 1991)) (further quotations

omitted). 2

2 The cases cited by Defendants for the proposition that the discovery rule does not apply to

defamation claims are distinguishable. In Brown v. Davita, 09-2892, 2011 WL 5523823 (E.D. Pa.

Nov. 14, 2011), the plaintiff admitted that she knew of the statements and who spoke them by a

certain time, but claimed that she was unaware that she had a cause of action against the speaker

until after she retained an attorney. The court declined to find that the discovery rule applied.

Similarly, in Gallucci v. Phillips, 614 A.2d 284 (Pa. Super. Ct. 1992), the plaintiff admitted

knowing of the injury and its cause, but simply did know the “specific content of the defamatory

statements.” Id. at 288.

By contrast, multiple courts have applied the discovery rule to defamation claims where

facts indicated that the plaintiff may not have known of the precise defamatory statements. See,

e.g., Smith, 437 F. Supp. 2d at 306 (holding discovery rule applied where statements were made

outside plaintiff’s presence, and plaintiff had “little or no reason to suspect” they had been made);

Barron v. St. Joseph’s Univ., No. 01-2063, 2002 WL 32345690, at *8 (E.D. Pa. Jan. 17, 2002)

(finding that complaint did not contain sufficient facts for the court to determine when plaintiff

should have become aware of defamation; statements were made prior to plaintiff’s termination

and plaintiff only learned about them after her employment ended); Giusto v. Ashland Chem. Co.,

994 F. Supp. 587, 594 (E.D. Pa. 1998) (applying discovery rule to statements made by former co-

“While a court may entertain a motion to dismiss on statute of limitations grounds, it may

not allocate the burden of invoking the discovery rule in a way that is inconsistent with the rule

that a plaintiff is not required to plead, in a complaint, facts sufficient to overcome an affirmative

defense.” Schmidt v. Skolas, 770 F.3d 241, 251 (3d Cir. 2014) (internal citations omitted). The

Third Circuit has stated, in the context of the discovery rule, that when “the pleading does not

reveal when the limitations period began to run . . . the statute of limitations cannot justify Rule

12 dismissal.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 835 (3d Cir. 2011). Thus, the

commencement of the limitations period may be determined as a matter of law only “where the

facts are so clear that reasonable minds cannot differ.” Crouse, 745 A.2d at 611 (citing Hayward

v. Med. Ctr. of Beaver Cty., 608 A.2d 1040 (Pa. 1992)).

Here, reasonable minds could differ regarding the accrual of the statute of limitations.

Defendants argue that Plaintiff’s defamation, libel, and injurious falsehood claims are barred

because the case was filed on June 28, 2019, but, according to the Amended Complaint, all the

purportedly defamatory statements by Dr. Acevedo, Dr. Dua, and Temple Defendants were made

from January through March 2018. Plaintiff urges that the discovery rule operates to toll the statute

of limitations because he was unaware of either the content of the statements or the speakers’

identities until the hearing in July 2018, thus rendering his June 28, 2019 Complaint timely.

The face of the Amended Complaint does not allow a determination of when

the statute of limitations commenced. The Amended Complaint sets forth the following relevant

allegations:

33. Plaintiff believes and therefore avers that residents inspired

by Dr. Matin began making false allegations against Plaintiff in the

middle of January 2018, in order to pre-empt Plaintiff from

removing Dr. Matin from his position as Director.

worker when record unclear “when plaintiff became aware, or should have become aware” that

former co-worker had uttered them).

. . .

36 On March 11, 2018, a past resident at Temple, and a current

practicing physician, told Plaintiff that Dr. Ian Matin was attempting

to ruin Plaintiff’s career by enticing residents [to] make bogus

complaints of sexual harassment and other misconduct about Dr.

Weinik to Temple officials.

37. Despite Dr. Weinik’s diligent efforts to investigate on his

own the details of the false allegations and his attempts to learn the

identifies of the specific individuals spreading the lies, Dr. Weinik’s

efforts proved unsuccessful.

38. On March 13, 2018, supervisors at Temple removed Plaintiff

as interim Chair of the Department, leaving Plaintiff to believe this

was to be his “punishment” on the unfounded allegations.

. . .

41. On March 15, 2018, Temple, orally advised Plaintiff he was

on Administrative leave effective immediately and that he had one

hour to clean out his office. Plaintiff was not given written notice

of his alleged transgressions, nor notice of any right to counsel.

. . .

43 On July 10, 2018, a hearing was conducted pursuant to the

Temple University Hospital Bylaws 8.3 and 8.4 before a hearing

committee appointed following a unanimous adverse

recommendation by MSEC under Bylaw 8.2 recommending

expulsion of Plaintiff.

44. Temple did not reveal the identities of many of his accusers

or any of the details of their allegations against him until just days

before the hearing.

45. Indeed, the full scope of the lies asserted against Dr. Weinik

was not revealed until July 10, 2018.

(Am. Compl. ¶¶ 33, 36–38, 41, 43–45.)

Taking these allegations as true—as I must on review of a Rule 12(b)(6) motion—I cannot

find, at this stage of the case, that Plaintiff possessed the salient facts concerning the occurrence

of his injury and who or what caused it, giving him the ability to investigate and pursue his

claim. While an argument can be made that Plaintiff knew, as early as March 2018, that something

derogatory was being said about him to his employers at Temple, the Amended Complaint does

not allow the inference posited by Defendants—that Plaintiff knew at that time either (a) that the

statements were false claims of sexual harassment or (b) who was making those statements.3 As

I cannot clearly determine when Plaintiff had sufficient knowledge regarding the alleged

defamatory statements in order to bring plausible claims for defamation, libel, and injurious

falsehood, I will deny this portion of Defendants’ Motions to Dismiss.

B. Whether the Claims Are Barred by Judicial Privilege

Defendants next contend that Plaintiff’s claims for defamation, libel, and injurious

falsehood are barred by Pennsylvania’s judicial proceeding privilege.

“It has long been the law of Pennsylvania that statements made by judges, attorneys,

witnesses and parties in the course of or pertinent to any stage of judicial proceedings are

absolutely privileged and, therefore, cannot form the basis for liability for defamation.”

Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa. Super. Ct. 1991); see also Binder v. Triangle Publ’ns,

Inc., 275 A.2d 53, 56 (Pa. 1971) (“All communications pertinent to any stage of a judicial

proceeding are accorded an absolute privilege which cannot be destroyed by abuse.”).

Pennsylvania affords this privilege so that “[a]ll persons involved in a judicial proceeding are

encouraged . . . to speak frankly and argue freely without danger or concern that they may be

3 Indeed, had Plaintiff attempted to file an earlier, more bareboned defamation complaint

without some basic information regarding the content of the purportedly defamatory statements—

as Defendants contend he should have—such a complaint could have faced dismissal under a Rule

12(b)(6) standard. See Carter v. Susquehanna Reg’l Police Dept., No. 0-4764, 2009 WL 1183415,

at *8 (E.D. Pa. Apr. 30, 2009) (finding that a complaint which alleged that plaintiff’s former

employer defamed her to prospective employers “[fell] short of even the liberal federal pleading

standards,” because the plaintiff did not set forth the substance of the defamatory statements, or

identify the putative recipients, and “no defendant could defend against such allegations in any

meaningful way”); Yellovich v. Ahold USA, No. 14-4665, 2014 WL 6676494, at *5 (E.D. Pa.

Nov. 24, 2014) (“claiming, on information and belief,” that defendant defamed plaintiff without

identifying what was said and by whom to whom does not provide “adequate suggestion of

impropriety;” “[a]lthough Pennsylvania courts have not spoken on this exact point, other

jurisdictions agree that a defamation claim requires at least slightly more detail”).

required to defend their statements in a later defamation action.” Smith v. Griffiths, 476 A.2d 22,

24 (Pa. Super. Ct. 1984); accord Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297,

311 (3d Cir. 2003).

The judicial privilege has been extended to proceedings that are “quasi-judicial” in nature,

which “has been defined to include any hearing before a tribunal which performs a judicial

function, including many administrative officers, boards and commissions, so far as they have the

powers of discretion in applying the law to the facts which are regarded as judicial or ‘quasi-

judicial’ in character.” Milliner v. Enck, 709 A.2d 417, 419 n.1 (Pa. Super. Ct. 1998).

“[U]nder Pennsylvania law[,] government involvement is also a necessary condition for

according quasi-judicial status to grievance procedures.” Overall v. University of Pa., 412 F.3d

492, 497 (3d Cir. 2005); see also Harris v. Saint Joseph’s Univ., No. 13-3937, 2014 WL 1910242,

at *9 (E.D. Pa. May 13, 2014). In other words, the quasi-judicial privilege must involve

“proceedings before federal, state, or local governmental bodies, or proceedings held pursuant to

a statute or administrative regulation.”4 Overall, 412 F.3d at 497.

In order to establish that the quasi-judicial privilege applies, the party asserting it must

establish two elements: (1) the allegedly defamatory statements were issued during the regular

course of judicial proceedings and (2) the statements were “pertinent and material” to those

proceedings. Bochetto v. Gibson, 860 A.2d 67, 73 (Pa. 2004).

1. Whether the Proceedings Were Quasi-Judicial in Nature

The parties first dispute whether the proceedings were quasi-judicial in nature. Defendants

contend that the Amended Complaint repeatedly couches the hearing as a quasi-judicial

4 Here, neither party disputes that Temple University is a governmental entity for purposes of this

case. The Amended Complaint specifically pleads that Temple University and its affiliated entities

are “state-related institutions.” (Am. Compl. ¶¶ 2–5.)

proceeding, referencing the use of a “prosecutor,” the lodging of “procedural objections” to

“preserve[] appellate rights,” the presentation of “extensive testimony,” and the opportunity to

provide “closing written arguments.” Plaintiff responds that “there is a basic factual issue as to

whether Temple’s sham proceeding could plausibly even qualify as ‘quasi-judicial’ proceeding.”

The Pennsylvania Superior Court has explained that, “[i]n order to determine whether an

individual is entitled to quasi-judicial immunity, we first examine the nature of the actions

complained of to ascertain whether they were performed within the quasi-judicial adjudicatory

function.” Greenberg v. McGraw, 161 A.3d 976, 985 (Pa. Super. 2017) (quoting Pollina v.

Disshong, 98 A.3d 613, 621 (Pa. Super. 2014)). “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. Ct. 1981) (citations omitted). More

specifically, the court must “look to the presence and exercise of discretionary decision-making

authority (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, 98 A.3d at 620–21 (Pa. Super. 2014) (citation omitted). The Superior 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).

The Pennsylvania Superior Court more clearly defined what constituted a quasi-judicial

proceeding in Greenberg v. McGraw, supra. There, a doctor brought an action against a former

physician’s assistant alleging that, after the physician’s assistant was terminated, she brought a

series of false defamatory reports against the doctor to the Commonwealth of Pennsylvania State

Board of Medicine. Id. at 979. The Board of Medicine began investigating the doctor’s fitness to

practice medicine. Id. The doctor then brought a tort action against the physician’s assistant

claiming defamation. After the physician’s assistant asserted that she was immune under a quasi-

judicial privilege, the trial court dismissed the defamation claims on that ground. Id. at 980.

Reviewing the allegations in the complaint, the Superior Court found that the Board’s

investigation and action constituted a “quasi-judicial” proceeding. Id. at 986–87. The regulations

which applied to the proceeding stated that complaints are assigned to “prosecution and

investigatory staff” who, along with medical consultants, make a determination regarding whether

a complaint merits consideration. Id. at 986 (citing 49 Pa. Code § 16.55(b)). According to those

regulations, the Board prosecutor then initiates a reasonable inquiry or investigation to determine

the complaint’s truth and validity and determines whether to settle the matter or file formal charges.

Id. If a formal complaint is filed, hearing examiners are appointed to hear matters, which are open

to the public. Id. at 987. Thereafter, upon application for review, the Board may take additional

testimony and arguments of counsel to reach a Board decision. Id. 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.” Id. (quoting 49 Pa. Code § 16.57(a)(4)). Based on the foregoing,

the Pennsylvania Superior Court found that these procedures constitute a quasi-judicial proceeding

as they shared many characteristics of the adjudicatory process including discretionary decision-

making and procedural safeguards. Id.

Here, taking the allegations in the Amended Complaint as true, the hearing at issue

conducted pursuant to the Temple University Hospital Bylaws, like that in Greenberg, also shared

many characteristics of the adjudicatory process. There were three hearing committee panelists

chosen from the Medical Staff, as well as a “prosecutor.” (Am. Compl. ¶¶ 47–48.) At the hearing,

both Plaintiff and the appointed “prosecutor” were able to call witnesses and make arguments. (Id.

¶¶ 51–53.) Plaintiff had the opportunity to lodge “procedural objections to preserve his appellate

rights” and could appeal the hearing decision to the Board of Trustees. (Id. ¶ 50.) Likewise, both

sides were given the opportunity to provide “closing written arguments,” after which the hearing

committee rendered a decision. (Id. ¶¶ 55–56.) Given these allegations, I find that the hearing at

issue was quasi-judicial in nature.

Plaintiff presses that this “sham proceeding” was not quasi-judicial because “it lack[ed]

any of the procedural due process safeguards afforded under the U.S. Constitution and the

allegations against [Plaintiff] were not asserted in good faith.” (Defs.’ Opp’n 11.) He contends

that “there is a basic factual issue” as to whether this proceeding could plausibly even qualify as

quasi-judicial because of all of the procedural defects, including admission of hearsay evidence,

Temple’s withholding of the identity of the accusers until the eve of the hearing, denial of

Plaintiff’s right to a lawyer, denial of the opportunity to present all available witnesses, and the

“prosecutor’s” involvement in the hearing panel’s decision. (Id. at 11–12.) Plaintiff asserts that

the proceeding cannot be deemed quasi-judicial because “Temple’s charade of a procedure

doomed it to failing the minimum standards of decency and reliability that constitutional due

process is designed to protect from.” (Id. at 13.)

Plaintiff’s argument conflates the question of whether Temple’s proceedings were quasi-

judicial in nature with the question of whether he received the requisite due process in those

proceedings. While the due process question is factual in nature and constitutes one of Plaintiff’s

substantive claims against the Temple Defendants, it has no bearing on whether the proceeding

itself was quasi-judicial for purposes of the quasi-judicial privilege.5 Rather, as described in

5 The case cited by Plaintiff, Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), only serves to highlight

that distinction. That case involved a claim of denial of due process in the context of a university

Plaintiff’s Amended Complaint, the hearing was indeed quasi-judicial regardless of whether

Temple properly provided all requisite procedural safeguards.

2. Whether the Alleged Defamatory Statements Made Were Pertinent and

Material to the Proceedings

The inquiry does not end there. “[I]n order to determine whether an individual is entitled

to quasi-judicial immunity, [the court] must [also] 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. 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.” Greenberg, 161 A.3d at

982 (quoting Post v. Mendel, 507 A.2d 351, 356 (Pa. 1986)); see also Milliner, 709 A.2d at 420

(“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.”). In fact, the privilege has been extended to statements made by

private parties to officials for the purpose of initiating charges or proceedings, even if those

statements were allegedly false. Greenberg, 161 A.3d at 987–89 (finding that judicial privilege

applied where the complaint alleged that the defendant made an allegedly retaliatory and

defamatory false report to the Board of Medicine for the purpose of instigating legal process

against Plaintiff’s license).

disciplinary proceeding. Id. at 581. The Sixth Circuit recognized that “(1) if a student is accused

of misconduct, the university must hold some sort of hearing before imposing a sanction as serious

as expulsion or suspension, and (2) when the university’s determination turns on the credibility of

the accuser, the accused, or witnesses, that hearing must include an opportunity for cross-

examination.” Id. The Court did not address the concept of quasi-judicial immunity or hold that

a hearing that lacks procedural due process protections fails to qualify as a judicial proceeding.

The Pennsylvania Supreme Court more clearly refined this principle in Schanne v. Addis,

121 A.3d 942 (Pa. 2015). That case was initially brought in federal court and alleged that a former

student told her friend she had been involved with her high school teacher years earlier. When the

friend reported this information, the high school held a pre-termination hearing and fired the

teacher. Id. at 943–44. The teacher sued for defamation, and the District Court granted summary

judgment to the former student on the basis of quasi-judicial privilege because the former student’s

statement to her friend “served as the catalyst” for the hearing. Immunity was applied even though

the former student did not intend to initiate a proceeding when she talked to her friend. Id. at 945

(quoting Schanne v. Addis, 898 F. Supp. 2d 751, 757 (E.D. Pa. 2012), vacated and remanded 615

F. App’x 759 (3d Cir. 2015)).

On appeal, the Third Circuit certified the following question to the Pennsylvania Supreme

court: “Does the absolute judicial privilege apply to an allegation of sexual misconduct against a

teacher by a former student, which allegation was made prior to the commencement of any quasi-

judicial proceeding and without an intent that the allegation lead to a quasi-judicial proceeding?”

Id. In answering this question, the Pennsylvania Supreme Court held that the privilege “does not

apply to an allegation made by an adult before commencement of any quasi-judicial proceeding

and without an intent that it lead to a quasi-judicial proceeding.” Id. at 952. The court explained

that the privilege “incentiviz[es] individuals to speak freely . . . in seeking to initiate judicial or

quasi-judicial proceedings,” but it does not serve this policy when the individual does not intend

to initiate a proceeding or seek a remedy. Id. at 949 (emphasis in original). The Pennsylvania

Supreme Court further emphasized that this standard required an inquiry into the factual issue of

the speaker’s intent. Id. at 951. After this ruling, the Third Circuit reversed the grant of summary

judgment, finding evidence that the speaker did not intend to initiate any proceedings or seek a

remedy.

Here, two sets of statements are subject to Plaintiff’s defamation claims: (1) Dr. Dua’s

statements regarding Plaintiff’s alleged sexual harassment of her, and (2) Dr. Acevedo’s reports

of sexual harassment by Plaintiff. According to the Amended Complaint, Plaintiff learned, at the

hearing on July 10, 2018, that “Defendants Shivani Dua and Phillip Acevedo falsely and

maliciously told their employer, Defendant Temple, Plaintiff engaged in sexual harassment

knowing that was false or in reckless disregard for the truth or falsity of said statement.” (Am.

Compl. ¶ 46.) The Amended Complaint then attaches the entire transcript of the July 10th hearing,

which reflects the precise substance of the statements at issue. Although the Amended Complaint

alleges that these statements “led to conduct [sic] an investigation specifically against Plaintiff,”

nothing in the Amended Complaint allows an inference that either Dr. Dua or Dr. Acevedo spoke

with the intent of causing the initiation of quasi-judicial proceedings. Indeed, the Amended

Complaint suggests that these statements were made by Defendants at the behest of former

Director of the Residency Program, Dr. Ian Matin, in an effort to preempt Plaintiff from removing

Dr. Matin from his position as Director. (Id. ¶¶ 32–33.) Moreover, according to the Amended

Complaint, “Dr. Dua refused to be interviewed by Temple representatives, refused to sign a

purported email or letter giving rise to the charges, and . . . consciously elected not to attend the

July 10, 2018 hearing.” (Id. ¶ 52 (emphasis omitted).) While the evidence in this case may

ultimately reveal that both Dr. Dua and Dr. Acevedo intended that their statements lead to the

termination hearing, such a finding regarding intent is not appropriate at this stage of litigation.6

6 Defendant Dua’s reliance on Fogel v. University of the Arts, No. 18-5137, 2019 WL

1384577 (E.D. Pa. Mar. 27, 2019) is unpersuasive. In that case, both a student and a professor

brought sexual harassment complaints against the plaintiff, a photography professor at the

University of the Arts. Id. at *2. The University investigated the allegations and terminated the

IV. CONCLUSION

In light of the foregoing, I find that neither the statute limitations issue nor the quasi-judicial

privilege issue is appropriate for resolution at the Rule 12(b)(6) stage. Accordingly, I will deny

both Motions to Dismiss. An appropriate Order follows.

plaintiff, following which the plaintiff sued the University and two individuals for, among other

things, defamation and false light invasion of privacy. Id. at *2–4. One of the complainants,

Professor Little, moved to dismiss the defamation claim on the basis of quasi-judicial immunity.

Id. at *8. The court found that her complaints to the University were protected by the quasi-judicial

privilege because the complaint allegation that the complaining professor “initiated the process by

which [the plaintiff] was terminated.” Id. at *10. The court went on to hold that Professor Little’s

statements about the plaintiff’s behavior to third parties at an academic conference were not

privileged since there was no allegation that the statements were made to initiate an investigation.

Id. at *11.

Unlike Fogel, nothing in the Amended Complaint either asserts or allows the reasonable

inference that Dr. Dua and/or Dr. Acevedo made the allegedly defamatory statements with the

intent to initiate a quasi-judicial proceeding.