Greenberg, M. v. McGraw, N.
161 A.3d 976
| Pa. Super. Ct. | 2017Background
- Greenberg (physician) alleged McGraw (former PA employee and program alumnus) made false reports to the State Board of Medicine and other agencies accusing him of drug addiction and scope-of-practice violations after employment terminations.
- McGraw reported to a Board investigator; Board opened an investigation into Greenberg’s fitness to practice, later withdrawn when McGraw refused to testify.
- Greenberg sued for defamation, abuse of process, and intentional infliction of emotional distress (IIED) in 2015; McGraw filed preliminary objections in the nature of a demurrer.
- Trial court sustained objections: dismissed defamation and IIED based on absolute (judicial/quasi‑judicial) privilege for communications to the Board; dismissed abuse of process for failure to state a claim.
- Greenberg appealed; Superior Court affirmed, holding Board processes are quasi‑judicial, privileged statements to the Board are absolutely privileged even if false, and abuse of process requires a post‑issuance perversion of process (not merely wrongful initiation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reports to the Board (made maliciously and allegedly false) are immune from defamation/related torts | Greenberg: McGraw’s false, malicious reports to a Board investigator are not protected; privilege shouldn’t bar his claims | McGraw: Statements to the Board during investigatory/quasi‑judicial process are absolutely privileged to encourage candid reporting | Held: Absolute judicial/quasi‑judicial privilege applies to statements made to the Board to initiate proceedings; defamation and IIED claims barred |
| Whether pleadings allege actionable abuse of process | Greenberg: McGraw used the disciplinary process primarily to harass and for purposes outside the process’s design (vendetta) | McGraw: Actions alleged amount only to initiation of proceedings, not a perversion of process; privilege and pleading standards bar claim | Held: Dismissed — complaint alleges wrongful initiation only, not the definite act/threat or post‑issuance misuse required for abuse of process |
| Whether IIED claim states an outrageou s‑conduct claim despite privilege | Greenberg: Statements implying illicit drug use were outrageous and support IIED | McGraw: Statements protected by privilege when made in quasi‑judicial context | Held: IIED claim barred by absolute privilege as it arose in connection with Board proceedings (court declined to reach separate merits) |
Key Cases Cited
- Binder v. Triangle Publications, Inc., 275 A.2d 53 (Pa. 1971) (absolute privilege covers communications pertinent to judicial proceedings)
- Post v. Mendel, 507 A.2d 351 (Pa. 1986) (privilege extends to communications made in preparation for contemplated proceedings)
- Briscoe v. LaHue, 460 U.S. 325 (U.S. 1983) (policy justification for witness immunity to encourage candid testimony)
- LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999) (extension of witness immunity to torts beyond defamation when policy warrants)
- Pollina v. Dishong, 98 A.3d 613 (Pa. Super. 2014) (distinguishes investigatory/consultant work from quasi‑judicial functions; no immunity where actions aren’t part of adjudicatory function)
- Milliner v. Enck, 709 A.2d 417 (Pa. Super. 1998) (absolute privilege applies to communications bearing on subject matter of litigation)
- Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super. 1998) (elements and limits of abuse of process tort)