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 
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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)
J-A05022-17

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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 19

th

-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 
J-A05022-17

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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, quasijudicial 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 quasijudicial 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 quasijudicial 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.