J-A03012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL R. GREENBERG, M.D. 

Appellant

v.

BARBARA M. BUCKLEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 668 MDA 2016

Appeal from the Judgment Entered March 28, 2016

In the Court of Common Pleas of Centre County 

Civil Division at No(s): 2015-2372

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 08, 2017

Appellant, Michael R. Greenberg, M.D., appeals from the March 28, 

2016 Order entered in the Centre County Court of Common Pleas, which 

sustained the Preliminary Objections filed by Barbara M. Buckley 

(“Appellee”) and dismissed Appellant’s Complaint with prejudice. After 

careful review, we affirm.

This case involves Appellant’s claim that Appellee, a physician’s 

assistant who had treated Appellant, made an allegedly false report about 

Appellant’s prescription drug use to an investigator of the Board of 

Medicine.1 

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1 The Board of Medicine had initiated an investigation into Appellant’s fitness 

to practice medicine following a report made to the Board by Nadine M. 

McGraw, a physician’s assistant previously employed at Appellant’s medical 

practice. 
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On June 23, 2015, Appellant filed a Complaint against Appellee 

alleging three counts: Defamation, Abuse of Process and Intentional 

Infliction of Emotional Distress. 

In his Complaint, Appellant alleged that Appellee informed a Board of 

Medicine investigator during an on-going Board investigation that (1) she 

had only written prescriptions for Adderall at Appellant’s request; (2) she 

never performed a physical examination of Appellant; and (3) Appellant was 

very specific in his requests for the type of drug, dosage, and number of pills 

to be prescribed to him. Appellant further alleged that personal animus and 

the intent to damage Appellant’s personal and professional reputation 

motivated Appellee’s statement to the Board of Medicine. See Appellant’s 

Complaint, 6/23/15, at ¶¶ 35-37, 39, 42.

In response to the Complaint, on October 1, 2015, Appellee filed 

Preliminary Objections. On December 30, 2015, the trial court sustained 

Appellee’s Preliminary Objections and dismissed Appellant’s Complaint. 

Thereafter, Appellant filed this timely appeal, in which he raised the 

following four 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 Appellee 

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 statements that specifically state or imply 

illicit drug use are insufficiently “outrageous” to state a 

claim for Intentional Infliction of Emotional Distress? 
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3. Whether the trial court erred and/or abused its discretion 

in holding that Appellant’s allegations that Appellee 

maliciously initiated an investigation into Appellant’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?

4. Whether the trial court erred or abused its discretion in 

finding that statements that specifically stated and/or 

implied illicit drug use were incapable of defamatory 

meaning?

Appellant’s Brief at 2-3 (reordered for ease of disposition).

Initially, we set forth our standard of review of a trial court’s decision 

to sustain Preliminary Objections and dismiss a Complaint:

Our 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).

Immunity Bars Claims for Defamation and Intentional Infliction 

of Emotional Distress.

Appellant’s first two issues are related; we, thus, address them 

together. In his first issue, Appellant claims that the trial court erred when it 
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concluded that absolute privilege or judicial immunity protected Buckley 

from liability arising from her statements because she did not make them “in

the regular course of judicial proceedings.” Appellant’s Brief at 10. 

Appellant also claims that the 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 Appellee 

maliciously and intentionally made false reports to a Board of Medicine 

investigator. Id. at 15-16. 

In his second issue, Appellant claims the trial court erred in concluding 

that Appellee’s conduct was not sufficiently outrageous to support an 

Intentional Infliction of Emotional Distress (“IIED”) claim. Id. at 20. 

This Court recently addressed these exact issues involving the instant 

Appellant and Nadine McGraw, a physician’s assistant who worked with 

Appellant and Appellee. Greenberg v. McGraw, 2017 WL 1788356 *1 (Pa. 

Super. filed May 5, 2017) (“Greenberg I”). In that case, Appellant alleged 

that because he terminated Ms. McGraw’s employment, Ms. McGraw made a 

report to the Board of Medicine that included statements similar to the 

statement that Appellee provided to the investigator regarding Appellant’s 

prescription drug use.2 

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2 The statements giving rise to the instant matter took place within the 

scope of that Greenberg I investigation.
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In Greenberg I, Appellant alleged that Ms. McGraw made defamatory 

statements to the Board of Medicine in retaliation for Appellant having 

terminated her employment. In particular, Appellant claimed that Ms. 

McGraw told the investigator for the Board of Medicine that Appellant “was 

addicted to drugs” and had “permitted her to perform medical procedures on 

patients that were outside her scope of practice.” Id. As a result of Ms. 

McGraw’s allegations, the Board of Medicine investigated Appellant’s fitness 

to practice medicine. Id.

The trial court sustained Ms. McGraw’s Preliminary Objections and this 

Court affirmed, holding that Ms. McGraw had absolute immunity from 

Appellant’s claims for Defamation and IIED for the statements that she 

made to Board of Medicine because the Board’s proceedings “constitute a 

quasi-judicial proceeding[.]” Id. at *8, *9. 

The instant case presents nearly identical facts. The statements made 

by Appellee were made only to a Board of Medicine investigator in the 

context of the Board’s investigation. Based on the holding in Greenberg I, 

in which this Court held that quasi-judicial immunity applies to statements 

made by witnesses to an investigator a Board of Medicine investigation, we 

find that the trial court properly sustained the Preliminary Objections in this 

case to the Defamation and IIED claims. 

With respect to Appellant’s claim that the trial court erred in holding 

that the Medical Practice Act provides absolute immunity to claims sounding 

in Defamation and Abuse of Process, as in Greenberg I, we find this claim 
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waived. First, we note that, contrary to Appellant’s claim, the trial court did 

not make such a holding, but rather sustained Ms. McGraw’s Preliminary 

Objections on the basis of the common law principle of judicial immunity. 

Moreover, Appellant failed to develop this claim on appeal. 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). Thus, Appellant’s 

first two claims on appeal fail.

Abuse of Process Claim

In his third issue, Appellant claims that the trial court erred in 

concluding that Appellant failed to plead a legally sufficient Abuse of Process 

claim. Appellant’s Brief at 19. He argues that his allegation—that “Appellee 

initiated and employed legal proceedings before the Board of Medicine in the 

course of an ongoing vendetta against [him], which statements were made 

to state authorities to harass him and to attract attention away from 

[Buckley’s] own tortious conduct[]”—was sufficient to state an Abuse of 

Process claim. Id. 

Abuse of process is the use of a legal proceeding to accomplish a 

purpose for which the proceeding was not designed. “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.” Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998). 
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The tort of Abuse of Civil Process, however, focuses solely on the 

misuse or perversion of the judicial process once it is initiated, not on the 

wrongful initiation of the judicial process itself. See Rosen v. Tesoro 

Petroleum Corp., 582 A.2d 27, 32-33 (Pa. Super. 1990) (explaining that a 

plaintiff has not stated a cause of action for Abuse of Process where the 

allegations in the Complaint amount only to a charge of initiation of litigation 

for a wrongful purpose and not the perversion of a properly-initiated 

litigation). 

The facts underlying this matter and the allegations in the Complaint 

at issue here are virtually indistinguishable from those in Greenberg I. This 

Court in Greenberg I held that Appellant could not base his Abuse of 

Process claim on the “wrongful initiation” of proceedings, but must allege a 

“perversion of the legal process.” Greenberg I, 2017 WL 1788356 at *11. 

Appellant only alleged that Ms. McGraw made false statements to a Board 

investigator. In other words, he alleged that Ms. McGraw wrongfully 

initiated judicial proceedings. Since Appellant did not allege that Ms. 

McGraw “perverted the legal process after its issuance[,]” this Court 

affirmed the dismissal of the claim. Id. (emphasis in original). 

In the instant case, we agree with the trial court that Appellant’s 

“generic averment that [Appellee] initiated an investigation into 

[Appellant’s] fitness to practice medicine to accomplish a purpose for which 

the process was not designed” without more, is not sufficient to state a claim 

for Abuse of Process. See Trial Ct. Op. at 7 (emphasis added). Moreover, 
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as in Greenberg I, Appellant failed to plead in the instant Complaint that 

Appellee “perverted the legal process after its issuance.” See Greenberg I

at *11. Thus, we likewise find that Appellant failed to state a claim in his 

Complaint for Abuse of Process.3 

Defamatory Nature of the Statements Made to the Board of Medicine

In his last issue, Appellant claims that the trial court erred in finding 

that statements Appellee made concerning alleged illicit drug use were 

incapable of defamatory meaning. Appellant’s Brief at 17. Appellant 

acknowledges that he did not allege facts confirming that Appellee explicitly 

told the Board of Medicine investigator that Appellant had a drug problem. 

Id. at 18. Rather, Appellant avers that he is confident that discovery will 

reveal that, through her statements, Appellee “intended exactly the false 

misapprehension that [Appellant] had a drug problem.” Id. at 17.

As we concluded, supra, based on the holding in Greenberg I, 

judicial immunity applies to protect Appellee from civil liability arising from 

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3 Appellant also claims that the trial court erred in concluding that, as a 

matter of law, in order to state a claim for Abuse of Process, Appellant was 

required to “allege a threat, extortion, blackmail, or other request for a 

collateral action.” Id. at 19-20 (emphasis added). Appellant 

mischaracterizes the trial court’s observation that Appellant did not “allege 

any threat extortion, blackmail, or any other request for collateral action” as 

requiring that Appellant set forth such an allegation in order to establish a 

legally sufficient Abuse of Process claim. See Trial Ct. Op., 12/30/15, at 7. 

Rather, Appellant’s Abuse of Process claim was insufficient as a matter of 

law because he failed to allege that Appellee perverted the legal process in 

some way.
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her statements to the Board of Medicine investigator during the course of an 

on-going Board investigation. Accordingly, we need not reach the merits of 

this claim.

Order affirmed.

Judge Stabile joins the memorandum.

Judge Lazarus files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2017