holding that a state court judge is immune from liability under Section 1983 unless he has acted in absence of jurisdiction
How later courts described this case
- holding that a state court judge is immune from liability under Section 1983 unless he has acted in absence of jurisdiction
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
P.G.S. :
v. : No. 390 C.D. 2024
:
Suzanne Hendricks, Linda A. Kerns, : Argued: April 8, 2025
and Sherri Luchs, :
Appellants :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: July 8, 2025
Suzanne Hendricks, Linda A. Kerns, and Sherri Luchs (Appellants) are
former members of the State Board of Nursing (Board) Probable Cause Screening
Committee (Committee),1 and they appeal from the March 1, 2024 order entered in the
Dauphin County Court of Common Pleas (trial court) granting the motion for summary
judgment filed by P.G.S. (Appellee). Appellants contend the trial court’s order
concerning their immunity from suit is appealable as a collateral order and challenge
that court’s determination that they are not entitled to the protection of quasi-judicial
or qualified immunity. After careful consideration, we reverse the trial court’s order
and remand this case with instructions to the trial court to enter judgment in favor of
Appellants.
1
Appellants Suzanne Hendricks and Sherri Luchs are former members of the Committee.
Linda A. Kerns remained an active member as of her February 2023 deposition in this case.
I. Background
The relevant facts and procedural history of this case are as follows.
Appellee held a license to practice as a registered nurse in the Commonwealth from
April 30, 2002, until October 24, 2018. In March of 2017, an anonymous complaint
was filed against her before the Board alleging that she was unable to competently and
safely perform her nursing duties. The allegations arose after she reported a case of
suspected elder abuse to the local police and discussed with them a secret government
organization she referred to as “SWAMP.” Appellee claimed that this organization
had unauthorized access to hospital databases and that it had hidden sharp containers
in the hospital. (Reproduced Record (R.R.) at 97a.)
In February of 2017, Appellee and her counsel were interviewed by an
investigator from the Board regarding the allegations. On March 9, 2017, the
Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs
(Bureau), through a prosecuting attorney, filed with the Board a Petition to Compel
Mental and Physical Examination (Petition to Compel) pursuant to Section 14(a)(2) of
the Professional Nursing Law (Law).2 The three-member Committee was then
2
Act of May 22, 1951, P.L. 317, as amended, 63 P.S. §§ 211-225.5. Section 14(a)(2) of the
Law governs the examination process and provides in relevant part as follows:
(a) The Board may refuse, suspend or revoke any license in any case
where the Board shall find that--
....
(2) The licensee is unable to practice professional nursing with
reasonable skill and safety to patients by reason of mental or
physical illness or condition or physiological or psychological
dependence upon alcohol, hallucinogenic or narcotic drugs or other
drugs which tend to impair judgment or coordination, so long as such
dependence shall continue. In enforcing this clause (2), the Board
shall, upon probable cause, have authority to compel a licensee to
submit to a mental or physical examination as designated by it.
(Footnote continued on next page…)
2
composed of Appellants, who reviewed the Petition to Compel and issued an order on
March 9, 2017, directing Appellee to submit to an examination with Dr. George E.
Woody (Order to Compel) within 60 days. Paragraph 7 of the Order to Compel stated:
[Appellee’s] failure to comply with this Order, except for
circumstances beyond h[er] control, shall constitute a
violation of a lawful order of the Board [] and an admission
of the allegations contained in the Petition to Compel [ ] upon
which a Default and Final Order may be entered without the
taking of testimony or presentation of evidence. Such Final
Order may result in the [Board] taking disciplinary or
corrective action against [Appellee] including, but not
limited to, license suspension, the imposition of a civil
penalty of up to $10,000 per violation, and the costs of
investigation.
(R.R. at 38a.) Appellee did not file an appeal from the Order to Compel.
Appellee and her counsel attended an examination with Dr. Woody on
May 4, 2017, and provided him with releases permitting him to obtain copies of her
medical records in accordance with the Order to Compel. Dr. Woody issued a report
After notice, hearing, adjudication and appeal as provided for in section
15, failure of a licensee to submit to such examination when directed
shall constitute an admission of the allegations against him or her
unless failure is due to circumstances beyond his or her control,
consequent upon which a default and final order may be entered
without the taking of testimony or presentation of evidence. . . .
63 P.S. § 224(a)(2) (emphasis added). In turn, Section 15 of the Law provides as follows:
All suspensions and revocations shall be made only in
accordance with the regulations of the Board, and only by majority vote
of the members of the Board after a full and fair hearing before the
Board. All actions of the Board shall be taken subject to the right of
notice, hearing and adjudication, and the right of appeal therefrom, in
accordance with the provisions in Title 2 of the Pennsylvania
Consolidated Statutes (relating to administrative law and procedure)[.]
63 P.S. § 225.
3
on June 8, 2017, stating that, in his professional opinion, Appellee has a delusional
disorder that prevented her from properly fulfilling her nursing duties. (R.R. at 99a.)
A Board hearing examiner conducted a hearing on the matter, and the Board issued an
order on September 24, 2018, indefinitely suspending Appellee’s license.
Appellee appealed from the order to this Court, arguing the Board violated
her due process rights by directing her to submit to a mental and physical examination.
She further contended that the Board’s decision to suspend her license was not
supported by substantial evidence. This Court affirmed the Board’s order on
November 7, 2019, finding that Appellee waived her due process claim by failing to
raise it before the Board. As to Appellee’s challenge to the evidence supporting her
license suspension, we found:
Dr. Woody based the substance of his June 8, 2017
report, including his proffered medical diagnosis and opinion
regarding [Appellee’s] fitness to continue working as a
nurse, not only upon documentation provided by the Bureau
and [Appellee], but also upon his in-person evaluation of
[Appellee]. Dr. Woody then expounded upon his report at
the October 12, 2017 hearing, providing clarification and
additional information to the Hearing Examiner that further
buttressed his previously articulated determinations.
[Appellee], herself, corroborated much of what Dr.
Woody had said and written, confirming that she had indeed
reported suspected elder abuse to the local police and
believed there was a shadowy, government-related group of
individuals involved in an amorphous and wide-ranging
conspiracy, which she collectively called “SWAMP” who
had not only maimed and killed members of her family but
had also conducted targeted attacks against some of her
patients. It is therefore not surprising that [Appellee’s]
beliefs, which have begun to affect the manner in which she
handles patients, would engender legitimate concerns about
her mental well-being and professional abilities.
Consequently, there is substantial evidence in the record
4
supporting the Board’s determinations that [Appellee]
suffers from a delusional disorder of an unknown provenance
and, therefore, she is incapable of practicing the profession
of nursing with the necessary level of safety and skill until
further evaluation.
P.G.S. v. Bureau of Professional and Occupational Affairs, State Board of Nursing (Pa.
Cmwlth., No. 1428 C.D. 2018, filed November 7, 2019), slip op. at 9-10.
Appellee initiated the instant action against Appellants by filing a writ of
summons in the trial court in March of 2019 alleging state and federal causes of action
for the denial of procedural and substantive due process and invasion of her privacy,
seeking compensatory and punitive damages. The crux of Appellee’s claim is that
Appellants deliberately misinformed her of her right to process by indicating in the
Order to Compel that her failure to submit to an examination would constitute a
violation of the order and an admission of the allegations in the Petition to Compel,
upon which a final disciplinary order could be entered without a hearing. (R.R. at 20a-
21a.) Appellee maintains that Appellants’ action deprived her of any meaningful
opportunity to challenge the allegations contained in the Petition to Compel or
Appellants’ determination of probable cause to order the mental and physical
examination.
In their Answer and New Matter filed on December 20, 2021, Appellants
denied Appellee was entitled to a hearing prior to her submission to the mental and
physical examination and maintained that the language of the Order to Compel is
consistent with both the text of 63 P.S. § 224(a)(2) itself and this Court’s decision in
Lencovich v. Bureau of Professional & Occupational Affairs, 829 A.2d 1238 (Pa.
5
Cmwlth. 2003).3 (R.R. at 50a, 53a.) Appellants additionally raised the defense of
quasi-judicial immunity “or other immunity for the claims asserted in this action.”
(R.R. at 53a.)4
Appellants testified by deposition, and Sherri Luchs explained that as a
Committee member, her “role was to review the information provided [by
Commonwealth prosecuting attorneys] to determine if there was enough information
in which there was a concern for the public health, welfare, and/or the nursing practice
3
In interpreting 63 P.S. § 224(a)(2), this Court held in Lencovich that, when read in context,
the “statutory scheme does not envision a hearing prior to a licensee’s submission to an
examination. Rather, [] it is clear that where the agency finds probable cause to order a medical
examination, it can compel a licensee to submit to one.” 829 A.2d at 1240 (emphasis added). The
Court also stated:
this provision also provides that, “After notice, hearing, adjudication
and appeal” in accordance with Section 15 of the Act (which
incorporates by reference the adjudicatory provisions of the
Administrative Agency Law), the failure of the licensee to submit to
the examination shall constitute an admission of the allegations upon
which “a default and final order may be entered.” We construe this
provision to mean that, although one is not given due process
before undergoing the examination, where the licensee’s refusal to
undergo the examination results in an adverse consequence, such
as a license suspension, the adverse consequence cannot take effect
until full due process is afforded (notice, hearing, adjudication and
appeal). It is in the context of that hearing that the efficacy of the
examination order can be challenged. If this were not the case, then
any refusal to undergo what the licensee believes is an unjustifiable
examination could, in and of itself, be a basis for deeming the licensee
medically unfit to practice by “default,” resulting in a possible license
suspension without providing a chance to challenge the actual basis for
that suspension. This would clearly be unconstitutional on the basis of
denial of due process.
Id. (emphases added).
4
Although Appellee maintains that Appellants raised their “belated” immunity claims for the
first time in their December 2023 motion for summary judgment, (Appellee’s Brief, at 22, 27), our
review of the record does not support her claim.
6
[with each] petition that was in front of us.” (R.R. at 219a.) With respect to the
probable cause evaluation process, Appellants testified consistently with one another
that prosecutors sent them petitions seeking to compel mental and physical
examinations of licensees via email in advance of their Committee meetings for
consideration. The prosecutors then presented the record petitions to Appellants at
their Committee meetings and, if a petition established the necessary probable cause,
they would enter an order compelling an evaluation. (R.R. at 216a-18a.) Appellants
uniformly testified that they did not draft the language contained in the orders to
compel, and instead received the form orders from counsel. (R.R. at 82a, 219-20a,
259a.)
The parties agreed that the issue of whether Appellee’s due process and
privacy rights were violated presented a legal issue to be determined by the trial court
and that if the court found a violation did occur, they would proceed to a bench trial on
damages. The parties filed cross-motions for summary judgment on December 22,
2023, requesting the trial court to determine, as a legal matter, whether Appellants
violated Appellee’s due process or privacy rights. Appellants additionally contended
that they are entitled to quasi-judicial immunity and/or to qualified immunity5 as a
complete defense to Appellee’s claims.
5
The doctrine of judicial immunity was developed to protect the public’s interest in ensuring
that certain individuals in society are able to perform their important functions without apprehension
of personal consequences. N.W.M. Through J.M. v. Langenbach, 316 A.3d 7, 23 (Pa. 2024). “Quasi-
judicial immunity” has been extended to state agency officials performing adjudicative actions that
are the functional equivalent of judicial work. Id. With respect to qualified immunity, this Court
applies that doctrine to state officers when considering federal law violations and will be found if an
official’s conduct does not violate clearly established rights which a reasonable person should have
known. Lancie v. Giles, 572 A.2d 827, 829 (Pa. Cmwlth. 1990).
7
The trial court heard oral argument on the cross-motions on January 25,
2024, and took the matter under advisement. On March 1, 2024, it issued an opinion
and order (March Order) granting Appellee’s motion for summary judgment and
denying Appellants’ cross-motion. The trial court entered judgment in favor of
Appellee and scheduled a bench trial to determine damages in April of 2024. In
rejecting Appellants’ immunity defenses, the trial court stated:
We find that [Appellants] are not entitled to quasi-
judicial immunity. Initially, the Order to Compel was
entered without providing [Appellee] any opportunity for a
hearing on the Petition to Compel, in accordance with the
relevant statute. As such, the entry of the Order to Compel
cannot be deemed a quasi-judicial adjudicatory function
because of the lack of procedural safeguards before the Order
to Compel was entered. Additionally, although the statute
sets forth procedural safeguards for [Appellee] to follow if
she wanted to contest the underlying basis for the entry of the
Order to Compel, the Order to Compel itself does not
properly advise [Appellee] of her rights to refuse the
examination and request a hearing on the Petition to Compel.
Since [Appellants] signed the Order that gave [Appellee] no
real choice but to attend the examination before she had any
opportunity to be heard, this cannot be considered a quasi-
judicial function. For these reasons, we find that
[Appellants] are not entitled to quasi-judicial immunity on
any of [Appellee’s] claims.
[Appellants] next argue that they are entitled to
qualified immunity on [Appellee’s] federal claims. . . . In the
instant matter, [Appellants] derived their authority to issue
Orders compelling licensed nurses to undergo mental and
physical examinations from 63 P.S. § 224(a)(2). As such,
they are presumed to know the dictates of that statute, which
requires an opportunity to be heard before refusing an
examination results in the admission of the underlying facts
that led to the Order to Compel. Since this right is clearly
8
established in the statute governing [Appellants’] conduct,
and we found that [Appellants] violated [Appellee’s] rights
under this statute, [Appellants] are not entitled to qualified
immunity.
(Trial Court Opinion, 3/01/24, at 8-9) (case citation omitted).
Appellants filed a notice of appeal on April 1, 2024, challenging the trial
court’s decision that they are not entitled to quasi-judicial or qualified immunity.
Appellants additionally filed an application requesting that the trial court certify its
March Order for interlocutory appeal.6 The trial court issued an order on April 4, 2024,
denying Appellants’ application and staying the trial pending this Court’s disposition
of the immunity issue.
Appellee filed a motion to quash the appeal in this Court contending that
it is interlocutory and unappealable. We issued a per curiam Order on May 31, 2024,
directing the parties to address the appealability of the March Order in their principal
briefs.
II. Discussion
On appeal, Appellants challenge the trial court’s determination that they
are not entitled to quasi-judicial or qualified immunity. Appellee, however, maintains
that the appeal should be quashed, because the denial of summary judgment on the
basis of immunity is a non-appealable interlocutory order. Appellants respond that the
order is appealable under the collateral order doctrine.7
A. Collateral Order Doctrine
Rule 312 provides that “[a]n appeal from an interlocutory order may be taken by permission
6
pursuant to Chapter 13 (interlocutory appeals by permission).” Pa.R.A.P. 312.
“With regard to jurisdictional questions and other questions of law, our standard of review
7
is de novo, and our scope of review is plenary.” Com. ex rel. Kane v. Philip Morris, Inc., 128 A.3d
334, 340 n.5 (Pa. Cmwlth. 2015).
9
We begin by addressing the appealability of the trial court’s March Order,
as it directly impacts our jurisdiction over this case. Smith v. Ivy Lee Real Estate LLC,
326 A.3d 1064, 1069 (Pa. Cmwlth. 2024). “In Pennsylvania, an immunity defense
does not, in and of itself, entitle a litigant to appellate review of an interlocutory order.”
Gwiszcz v. City of Philadelphia, 550 A.2d 880, 881 (Pa. Cmwlth. 1988). The collateral
order doctrine permits an appeal as of right from a non-final collateral order if the order
satisfies the three requirements set forth in Pennsylvania Rule of Appellate Procedure
313(b)—separability, importance, and irreparability. Shearer v. Hafer, 177 A.3d 850,
855 (Pa. 2018). Rule 313 provides:
(a) General Rule. An appeal may be taken as of right from a
collateral order of a trial court or other government unit.
(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313(a), (b).
Therefore, an order is collateral under this rule if it satisfies the following
three prongs: (1) it is separable from and collateral to the main cause of action; (2) the
right involved is too important to be denied review; and (3) the question presented is
such that, if review is postponed until final judgment in the case, the claim will be
irreparably lost. Pa.R.A.P. 313(b). The Pennsylvania Supreme Court has concluded
that, “as a means to reinforce and support the final order rule . . . the collateral order
doctrine must be narrowly construed, and, before application thereof, every one of its
three prongs must be clearly present, especially considering that a party may seek
permission to appeal an interlocutory—i.e., non-final—order pursuant to Pennsylvania
Rule of Appellate Procedure 312, Pa.R.A.P. 312.” J.C.D. v. A.L.R., 303 A.3d 425, 430
10
(Pa. 2023). “Where an order satisfies Rule 313’s three-pronged test, an appellate court
may exercise jurisdiction even though the order is not final.” Shearer, 177 A.3d at 857.
Regarding the first prong, “an order is separable from the main cause of
action if it can be resolved without an analysis of the merits of the underlying dispute
and if it is entirely distinct from the underlying issue in the case.” Id. at 858. “This
Court has adopted a practical separability analysis recognizing that some potential
interrelationship between merits issues and the question sought to be raised in the
interlocutory appeal is tolerable.” Brooks v. Ewing Cole, Inc., 259 A.3d 359, 372 (Pa.
2021) (emphasis added). As to the second prong, “this Court has examined the
importance of the right involved by weighing the interests that immediate appellate
review would protect against the final judgment rule’s interests in efficiency through
avoiding piecemeal litigation.” Id. “Further, the rights involved must implicate
interests deeply rooted in public policy and going beyond the particular litigation at
hand.” Shearer, 177 A.3d at 857. The third prong concerning irreparability requires
that “the matter must effectively be unreviewable on appeal from final judgment.”
J.C.D., 303 A.3d at 431.
Our Supreme Court’s decision in Brooks is instructive. In that case, the
plaintiff was injured when she walked into an unmarked glass wall while exiting the
Family Court building in Philadelphia. The plaintiff sued the Family Court, which
moved for summary judgment on the basis of sovereign immunity arguing that the
Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-8527, barred the plaintiff’s negligence
action. Brooks, 259 A.3d at 361. The trial court denied the Family Court’s motion for
summary judgment, the Family Court appealed, and this Court quashed the appeal,
finding that the trial court’s order did not meet the requirements of the collateral order
doctrine.
11
Our Supreme Court disagreed and reversed this Court’s decision. In
determining the immunity issue was separable from the main cause of action, the
Brooks Court explained that “it is a purely legal question that can be resolved by
focusing on the Act and does not necessitate an examination of the merits of the
plaintiff’s negligence claim.” Id. at 372. It further concluded that, because the right to
a sovereign immunity defense is deeply rooted in public policy, the issue was too
important to defer resolution until after final judgment of the negligence action. Id.
The Court additionally held that the Family Court’s ability to invoke sovereign
immunity as a defense would be lost if appellate review were delayed until after final
judgment. Id. at 373-74. In doing so, the Court noted that the United States Supreme
Court has also held that orders denying immunity are immediately appealable as
“collateral orders because the entitlement is an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.” Id. at 374 (citing Mitchell v. Forsyth, 472 U.S.
511 (1985) (emphasis added)).
Likewise, here, employing a practical separability analysis, see id. at 361,
the issue of whether Appellants are entitled to immunity from this lawsuit is a purely
legal question separate from the underlying merits of Appellee’s due process and right
to privacy claims. Specifically, the applicability of quasi-judicial immunity turns on
whether Appellants were acting in a capacity that is functionally equivalent to a judicial
officer when they issued the Order to Compel and can be analyzed without examination
of the underlying dispute.
Regarding the importance prong, the issue of whether individual
Committee members can be held personally liable for allegations arising from their
issuance of orders to compel mental and physical examinations in the context of
12
nursing license suspension proceedings before the Board implicates broad public
policy concerns extending beyond this particular case. Thus, the second prong of the
collateral order doctrine is satisfied.
Lastly, as in Brooks, delaying review of the March Order until after final
judgment would cause Appellants to irreparably lose their claimed entitlement to
immunity from suit, as it would provide protection from the cost and burden of
litigating this lawsuit itself, not from a final judgment. Therefore, the third prong of
the collateral order analysis is also met. Accordingly, because we conclude that we
may exercise appellate review of Appellants’ immunity issues pursuant to the collateral
order doctrine, we address them on the merits.
B. Judicial and Quasi-Judicial Immunity8
The principle that judges must be free to perform their judicial function
without apprehension of personal liability in civil actions has deep common law roots.
N.W.M. Through J.M., 316 A.3d at 23. This is because the public has an interest in
judges exercising their discretion freely and independently, without concerns about
potential individual consequences or the distraction of litigating a lawsuit. See id. The
United States Supreme Court has explained with respect to judicial immunity that,
[l]ike other forms of official immunity, judicial
immunity is an immunity from suit, not just from ultimate
assessment of damages. Accordingly, judicial immunity is
not overcome by allegations of bad faith or malice, the
existence of which ordinarily cannot be resolved without
engaging in discovery and eventual trial. Rather, our cases
make clear that the immunity is overcome in only two sets of
circumstances. First, a judge is not immune from liability for
nonjudicial actions, i.e., actions not taken in the judge’s
8
“Whether a particular immunity applies is a question of law as to which our standard of
review is de novo and our scope of review is plenary.” Feldman v. Hoffman, 107 A.3d 821, 826 (Pa.
Cmwlth. 2014).
13
judicial capacity. Second, a judge is not immune for actions,
though judicial in nature, taken in the complete absence of
all jurisdiction.
. . . . Whether an act by a judge is a “judicial” one [relates] to
the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectations of the
parties, i.e., whether they dealt with the judge in his judicial
capacity[.]
Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (citations omitted).
With regard to quasi-judicial immunity, Pennsylvania recognizes this
doctrine as applicable to state administrative agency officials who regularly perform
quasi-judicial functions. Petition of Dwyer, 406 A.2d 1355 (Pa. 1979). In Petition of
Dwyer, our Supreme Court extended quasi-judicial immunity to state officials who
routinely engage in adjudicative actions, including issuing subpoenas, initiating
enforcement proceedings, making evidentiary rulings, and hearing adjudications. In
doing so the Court noted these officials were performing the functional equivalent of
judicial work and stated:
The modern era has ushered into our system of jurisprudence
men and women who, in administrative agency proceedings,
performed adjudicatory functions much the same as those
performed by judges. These men and women are called
upon to exercise their discretion in applying statutes,
rules, and often case law governing the particular
administrative agency area to the facts and
circumstances of each proceeding. The question has
recently arisen, as it has here, as to the propriety of adoption
of a “quasi-judicial” immunity to preserve the independence
of these administrative agency officials in rendering their
decisions.
Id. at 1358 (emphasis added). In adopting this form of immunity, the Court reasoned
that “quasi-judicial immunity, as with judicial immunity, is necessary to ensure that
14
agency adjudicatory decisions will be rendered independently, free from external
pressures, harassment or intimidation.” Id. at 1359.
Since Petition of Dwyer, Pennsylvania courts have extended quasi-judicial
immunity to “those serving clear adjudicative functions [including]: administrative law
judges who preside over and adjudicate a regulatory matter in the manner of a judge; a
judicial law clerk who works within the judicial chambers directly assisting the judge
in the judge’s adjudicative role; and a child custody officer who directly assists the
judge by presiding over a conference and issuing a report and recommendation for the
judge’s use.” N.W.M. Through J.M., 316 A.3d at 28. In holding that a child custody
conference officer is entitled to the protection of judicial immunity, this Court stated:
The doctrine of judicial immunity is applicable not only to
judges but to those who perform judicial functions and act as
an arm of the court. . . . [J]udges are immune from liability
when the judge has jurisdiction over the subject matter before
him and he is performing a judicial act. Judges are
absolutely immune from liability for damages when
performing judicial acts, even if their actions are in error
or performed with malice, provided there is not clear
absence of all jurisdiction over the subject matter and
person.
Logan v. Lillie, 728 A.2d 995, 998 (Pa. Cmwlth. 1999) (emphasis added).
Here, Appellants, after considering the Petition to Compel submitted to
the Board by the Commonwealth’s prosecuting attorney, exercised their discretion in
determining that it was supported by adequate probable cause to enter the Order to
Compel. Appellants issued the Order to Compel in accordance with the quasi-judicial
authority granted to them by the legislature under 63 P.S. § 224(a)(2). The record
makes clear that Appellants, in taking these actions, were acting solely in their official
quasi-judicial role as members of the Committee and as an arm of the Board. There is
no evidence of record whatsoever to indicate that they were acting in their individual
15
capacities in rendering their probable cause determination. Instead, in making probable
cause determinations and issuing orders applying statutorily defined criteria, they
performed classic examples of “function[s] normally performed by a judge.” See
Mireles, 502 U.S. at 11. Additionally, Appellants consistently and unequivocally
testified that they played no role in drafting the language of the Order to Compel and
that this was a standard form document provided by the Board’s legal representative.
Based on the foregoing, we conclude that Appellants were acting within
their quasi-judicial authority when issuing the Order to Compel and that Appellee’s
action for money and punitive damages against them in their personal capacities is
barred from further litigation. We also note that Appellee was represented by counsel
throughout the license suspension process and that it was counsel’s responsibility to
advise her of the potential legal ramifications of refusing to submit to the mental and
physical examination.9 Accordingly, we reverse the trial court’s order and remand this
case with instructions to the trial court to enter judgment in favor of Appellants.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Covey and Judge Fizzano Cannon did not participate in the decision for this case.
9
Because we agree with Appellants that they are entitled to quasi-judicial immunity, we need
not address their issue concerning qualified immunity.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
P.G.S. :
v. : No. 390 C.D. 2024
:
Suzanne Hendricks, Linda A. Kerns, :
and Sherri Luchs, :
Appellants :
ORDER
AND NOW, this 8th day of July, 2025, the March 1, 2024 order of the
Court of Common Pleas of Dauphin County (trial court) in the above-captioned
matter is REVERSED, and the case is REMANDED to the trial court with
instructions to enter judgment in favor of Suzanne Hendricks, Linda A. Kerns, and
Sherri Luchs.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
P.G.S. :
:
v. : No. 390 C.D. 2024
: Argued: April 8, 2025
Suzanne Hendricks, Linda A. Kerns, :
and Sherri Luchs, :
Appellants :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
DISSENTING OPINION
BY SENIOR JUDGE LEAVITT FILED:
The Court of Common Pleas of Dauphin County’s (trial court) order of
March 1, 2024, granted summary judgment to P.G.S. on the merits of her Section
1983 action1 and denied the summary judgment motion filed by Suzanne Hendricks,
Linda A. Kerns, and Sherri Luchs (collectively, Former Board Members), who
formerly served on the State Board of Nursing (Nursing Board).2 The majority holds
that the part of the trial court’s order denying summary judgment to Former Board
1
42 U.S.C. §1983. It states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief was
unavailable.
Id.
2
Former Board Members served on the Nursing Board’s Probable Cause Screening Committee.
Members is appealable as a collateral order. Because this part of the trial court’s
order cannot be separated from the remainder of the order, it is not appealable as a
collateral order. With respect, I dissent.
The collateral order doctrine permits an appeal as of right from a non-
final order if the order can be separated from the main cause of action; the order
involves a right too important to deny immediate review; and the postponement of
review to final judgment will cause the claim to be irreparably lost. See PA.R.A.P.
313.3 The order appealed to this Court by Former Board Members does not meet
these prerequisites.
Most importantly, Former Board Members’ claim to quasi-judicial
immunity cannot be separated from P.G.S.’s underlying cause of action asserting a
denial of her constitutional rights. To find otherwise, the majority relies on Brooks
v. Ewing Cole, Inc., 259 A.3d 359 (Pa. 2021). There, the plaintiff filed a negligence
action after walking into an unmarked glass wall of the Family Court building. The
Supreme Court ruled that the common pleas court’s order denying summary
judgment on the Family Court’s defense of sovereign immunity was appealable as a
collateral order. Brooks is distinguishable. Because the determination that the
Family Court was a Commonwealth party entitled to sovereign immunity did not
require an inquiry into the underlying negligence action, the immunity issue was
3
It states:
(a) General Rule. An appeal may be taken as of right from a collateral order of a
trial court or other government unit.
(b) Definition. A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important to be denied review
and the question presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost.
PA.R.A.P. 313.
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separable from the main cause of action. By contrast, here, we consider quasi-
judicial immunity.4
Whereas sovereign immunity is an absolute defense, quasi-judicial
immunity requires an intensive factual inquiry. First, this immunity is available only
“in the absence of allegations of bad faith or corruption” by state officials. Petition
of Dwyer, 406 A.2d 1355, 1360 (Pa. 1979) (Dwyer). Second, quasi-judicial
immunity depends on whether the actions complained of were done in performance
of an adjudicatory function. The hallmarks of an adjudicatory function include “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.).” Id. (emphasis added).
P.G.S.’s Section 1983 action asserts that the ex parte order of the
Nursing Board to compel her to undergo an invasive physical and mental health
examination, without giving her an opportunity to challenge that order in an
administrative hearing, violated her constitutional rights to privacy and due process.
The defense of quasi-judicial immunity requires an inquiry into whether the order to
compel P.G.S. to undergo an examination was issued with “procedural safeguards”
that are “similar to the safeguards afforded at a judicial proceeding[.]” Dwyer, 406
A.2d at 1360. Stated otherwise, the question of quasi-judicial immunity is
inextricably entwined with the question raised in the main action: whether the order
4
Former Board Members rely on cases that established the principle of judicial immunity. See,
e.g., Stump v. Sparkman, 435 U.S. 349 (1978) (holding that a state court judge is immune from
liability under Section 1983 unless he has acted in absence of jurisdiction). Former Board
Members are not entitled to judicial immunity. They were members of the executive branch of
state government when they took the action complained of in P.G.S.’s Section 1983 complaint.
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authorized by Former Board Members comported with due process. Simply, the trial
court’s order denying the defense of quasi-judicial immunity cannot be separated
from the main cause of action and, thus, is not a collateral order. PA.R.A.P. 313(b).
Likewise, the question of whether Former Board Members are entitled
to quasi-judicial immunity will not be irreparably lost should appellate review be
deferred until the trial court enters final judgment. As noted by the trial court, upon
completion of a brief hearing on damages, final judgment can be entered, and all
issues, including immunity, will be ready for appellate review. Stated otherwise, the
trial court’s denial of summary judgment fails the “irreparably lost” prong under
PA.R.A.P. 313(b).
Indirectly, the majority reverses the trial court’s order on the merits of
the underlying action, which issue is not before this Court. Indeed, the majority’s
discussion on due process illustrates that the trial court’s order denying summary
judgment to Former Board Members cannot be separated from the main cause of
action. Further, I disagree with the majority’s rationale on this point.
The majority concludes that Section 14(a)(2) of the Professional
Nursing Law5 does not envision a hearing prior to a licensee’s submission to an
examination, citing Lencovich v. Bureau of Professional and Occupational Affairs,
829 A.2d 1238 (Pa. Cmwlth. 2003).6 However, in Lencovich, the licensee did
receive a hearing on the order to compel the examination before attending the
examination. In Lencovich, the licensee sought reconsideration of the Nursing
Board’s order to compel her to undergo mental and physical examination, which
triggered a stay of the order and a “probable cause” hearing. Id. at 1239. After this
5
Act of May 2, 1951, P.L. 317, as amended, 63 P.S. §224(a)(2).
6
The discussion in Lencovich on the procedures provided in Section 14(a)(2) of the Professional
Nursing Law is obiter dictum.
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hearing, the hearing examiner upheld the order to compel, and the licensee appealed
to this Court. We quashed the appeal because the Nursing Board’s order was not
final or otherwise appealable as of right. Lencovich, 829 A.2d at 1241.
Former Board Members argue that P.G.S. had the “option,” as in
Lencovich, to seek reconsideration of the Nursing Board’s order to compel, but she
decided not to exercise that option. Former Board Members Brief at 48, n.15. In
the alternative, Former Board Members contend that P.G.S. could have refused the
examination, which would have “the allegations in the petition to compel deemed
admitted.” Id. at 47. They argue that at the suspension hearing based upon the
admitted allegations, she could challenge the order to compel.
Former Board Members did not advise P.G.S. of either option in their
order to compel P.G.S. to undergo the examination. President Judge Cohn Jubelirer
observed in P.G.S. v. Bureau of Professional and Occupational Affairs, State Board
of Nursing (Pa. Cmwlth., No. 1428 C.D. 2018, filed November 7, 2019) (Cohn
Jubelirer, P.J., concurring) (unreported), slip op. at 3 n.3, that “if the [Nursing] Board
does have a procedure for a licensee to receive a due process hearing prior to
attending a mental and physical exam, it would be helpful for the Board to provide
notification.” This raises the question of whether Former Board Members acted “in
bad faith” by not providing this notification to P.G.S., and mere allegation of bad
faith precludes quasi-judicial immunity. Dwyer, 406 A.2d at 1360.
Former Board Members do not identify the statute or regulation that
authorizes, upon request, a probable cause hearing before attendance at a mental and
physical examination can be compelled. President Judge Cohn Jubelirer also
observed that
[t]he [Nursing] Board represented at argument before this Court
that there is a procedure through which P.G.S. could have
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challenged the order granting the Petition to Compel; however,
when questioned, counsel was unable to describe that procedure.
I do not understand our opinion in Lencovich, where the licensee
did receive a due process hearing before the Board, as justifying
a denial of a request for a hearing, if made.
P.G.S., slip op. at n.3. Likewise, here, the hearing “option” supposedly declined by
P.G.S. has not been specified by Former Board Members.
The trial court has issued a judgment on the merits of P.G.S.’s civil
rights claim, but Former Board Members did not appeal this order.7 By limiting
their appeal to the denial of their quasi-judicial immunity defense, Former Board
Members avoid appellate review of the trial court’s order on the legal merits of
P.G.S.’s Section 1983 claim. The important issue of what due process requires
before a licensee can be required to attend an invasive physical and mental
examination warrants a direct, and robust, appellate review by this Court. However,
the majority’s decision forecloses this review. Indeed, appellate review of the “main
cause of action” will be “irreparably lost,” which turns the collateral order principle
on its head. See PA.R.A.P. 313(b) (authorizing immediate review of separable
collateral order where otherwise “the claim will be irreparably lost.”).
I would quash Former Board Members’ appeal because the trial court’s
March 1, 2024, order is not appealable as a final order or as a collateral order.
________________________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
7
The only matter outstanding is a hearing, expected to take no more than one day, on the amount
of P.G.S.’s damages. The question of whether Former Board Members should be relieved of this
brief evidentiary hearing is not a matter “too important” to deny immediate review. PA.R.A.P.
313(b).
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