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Greenberg v. McGraw

Superior Court of Pennsylvania

May 5, 2017

MICHAEL R. GREENBERG, M.D., MBA, Appellant
v.
NADINE M. MCGRAW, Appellee

         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

          BENDER, P.J.E.

         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.] McGra graduated in June 2007, she gained two different physician's 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]

         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:
[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] 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 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 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 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 ...

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