Greenberg, M. v. McGraw, N.

J-A05022-17

2017 PA Super 136

MICHAEL 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

J-A05022-17

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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