NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 20

- 2525

____________ MICHAEL WEINIK, D.O.

v. TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION; TEMPLE UNIVERSITY'S LEWIS KATZ SCHOOL OF MEDICINE; TEMPLE UNIVERSITY HOSPITAL; SHIVANI DUA; PHILLIP ACEVEDO, Shivani Dua, Appellant

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:19

- cv
- 03503 ) District Judge: Hon orable Mitchell S. Goldberg

____________ Argued on September 23 , 2021
Before : CHAG A RES, HARDIMAN, and MATEY , Circuit Judges

.

(Filed: December 13, 2021 ) Danielle Banks [Argued] Chelsea Biemiller Adam D. Brown Stradley Ronon Stevens & Young 2005 Market Street Suite 2600 Philadelphia, PA 19103 Counsel for Appellant2

Bruce L. Castor, Jr. van der Veen O'Neill Hartshorn & Levin 1219 Spruce Street Philadelphia, PA 19107 Joseph R. Heffern [Argued] Lance Rogers Rogers Counsel 26 East Athens Avenue Ardmore, PA 19003 Counsel for Appellee

____________ OPINION *

____________

HARDIMAN, Circuit Judge

. Shivani Dua , M

. D

. appeals an order denying her motion to dismiss . For the reasons that follow, we will dismiss for lack of appellate jurisdiction

. I Plaintiff Michael Weinik, D.O. is a physician and former professor at Temple University Lewis Katz School of Medicine , who worked at Temple University Hospital. Temple terminated Weinik’s employment after an investigation into reports of sexual
misconduct. Wein i k sued Dua for defamation for making one of those reports

. Dua
moved to dismiss, claiming Pennsylvania’s judicial proceeding privilege shielded her

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

from liability for defamation

. The District Court denied the motion , holding that a factual inquiry into Dua’s intent is necessary to determine whether the judicial proceeding pri vilege applies to her report

. Dua seeks review here under the collateral order doctrine, claiming she is entitled

to absolute immunity

. Because the District Court properly held that a factual inquiry is necessary to determine whether the judicial proceeding privilege applies , w e lack appellate jurisdiction to consider Dua’s appeal

. A We begin with Dua’ s assertion that Pennsylvania law does not mandate a factual inquiry into a speaker’s subjective intent before afford ing her protection under the judicial proceeding privilege for statements that initiated quasi

- judicial proceedings . Dua
maintains the District Court misread Schanne v. Addis , where the Pennsylvania Supreme
Court held on certification of the issue from this Cour t that “the judicial privilege does not apply to an allegation made by an adult before commencement of any quasi

- judicial proceeding and without an intent that it lead to a quasi

- judicial proceeding.” 121 A.3d 942, 952 (Pa. 2015) (emphasis added)

. The Court explained that “the resolution of legal issues in specific cases may depend on the facts involved.” Id. at 951

. This case , like Schanne , involves sexual misconduct allegation s by a former
student who claim s judicial proceeding immunity from a defamation suit related to that allegation

. Dua, a former medical resident at the Hospital, sent an email to the graduate
medical education program administrat or alleging unwanted touching and sexually inappropriate comments by her attending physic ian, Dr. Weinik , several years earlier. In4

her email, Dua e xpressed a desire to remain anonymous and explained : “I don [’ ]t want sympathy, I just don[’]t want this to happen to others.” App. 224. Dua’s email helped
spur Temple to conduct a quasi

- judicial proceeding

— in which Dua did not participate

— that resulted in Weinik’s termination

. Weinik continues to den y Dua’s sexual misconduct allegations . Weinik claims Dua’ s email w as part of a malicious, orchestrated campaign by a professional rival to weaponize relationships with former resid ency students to discredit Weinik

. We are unpersuaded by Dua ’s argu ment that the District Court committed legal error by interpreting Schanne to require a factual inquiry into her subjective intent

. Schanne held that application of the judicial proceeding privilege depends on the speaker’s subjective intent and reasoned that a factual inquiry into th at intent may be
necessary to apply the privilege. See 121 A.3d at 951. Because Dua’s intent to initiate a quasi

- judicial proceeding is no t plain from the face of her email , the District Court did not err by requiring a factual inquiry. Indeed, Weinik alleges that Dua intended to aid Weinik’s rival in an internal power struggle , not to initiate a quasi

- judicial proceeding

. Although Dua lodged her complaint with a program official, this fact alone is not, contrary to Dua ’s argu ment , dispositive of intent.
B Dua’s appeal is in eligible for review under the collateral order doctrine , which is a
“narrow ” exception to the final order requirement with “stringent” conditions

. Digit

. Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 868 (1994)

. The exception requires
that an order : “[1] conclusively determine the disputed question, [2] resolve an important5

issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Bank of Hope v. Miye Chon , 938 F.3d 389, 393 (3d Cir. 2019) ( quoting Will v. Hallock , 546 U.S. 345, 349 (2006) )

. Because t he District Court’s order denying Dua’s motion to dismiss satisfies none of the se conditions , we lack appellate jurisdiction.
The first two of these factors are not satisfied because the District Court’s den ial is grounded on a n unresolved question of fact. While a n order denying qualified or absolute immunity is immediately reviewable under the collateral order doctrine “ to the extent that
the order turns on an issue of law , ” Giuffre v. Bissell , 31 F.3d 1241, 1245 (3d Cir. 1994) , review is “premature when there are unresolved disputes of historical fact relevant to the immunity analysis .” Curley v. Klem , 298 F.3d 271, 278 (3d Cir. 2002). Dua’s appeal is
framed as a question of law

— whether the District Court correct ly interpret ed Schanne

— but the Court’s ruling turns on a n unresolved question of fact : whether Dua subjectively
intended her email to the graduate medical education program administrator to initiate a quasi

- judicial proceeding

. Because this question remains unresolved , th e District Court’s
order neither “conclusively determine [ d ] the disputed question” n or “resolve [ d ] an important issue completely separate from the merits of the action.” Bank of Hope , 938
F.3d at 393. Dua’s appeal also fails to satisfy the third factor of the collateral order doctrine , which requires that an order “ be effectively unreviewable on app eal from a final judgment

. ” Id. (quoting Will , 546 U.S. at 349). For an order t o be unreviewable, an appellant must demonstrate that “deferring review until final judgment so imperils the6

interest as to justify the cost of allowing immediate appeal of the entire class of relevant
orders .” Mohawk Indus., Inc. v. Carpenter , 558 U.S. 10 0, 108 (2009).
Dua describes the judicial proceeding privilege a s an “absolute immunity” that would be irretrievably lost if we require d her to await final judgment on the merits before challeng ing the District Court’s order . Dua Br. 11 (quoting Bochetto v . Gibson , 860 A.2d 67, 71 (Pa. 2004)). But Dua mischaracterizes t he judicial proceeding privilege

. Under Pennsylvania law , i t is an affirmative defense , not a broad grant of immunity

. Schanne , 121 A.3d at 951. And Dua bears the burden of proving it

. See Rosenbloom v.
Metromedia , Inc. 403 U.S. 29, 38 (1971) (“Pennsylvania has also enacted verbatim the Restatement’s provisions on burden of proof, which place the burden of proof for the affirmative defenses of truth and p rivilege upon the defendant.”).
Dua contends that requiring her to endure discovery to establish subjective intent cannot be the holding of Schanne

. B ut the Pennsylvania Supreme Court considered this
very concern when it reasoned that the judicial proceeding privilege may turn on facts requiring discovery

. Schanne , 121 A.3d at 951 (“I t can hardly be the law that a plaintiff is prohibited from challenging a de fense raised by the defendant because there are costs to litigating its merits.” )

. Because the District Court’s order denying Dua’s motion to dismiss can be effectively reviewed after trial, the District Court’s order also does not satisfy the third prong of the collateral order doctrine.

* * *
For the reasons stated , we will dismiss th is appeal for lack of jurisdiction

.