J-A03012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL R. GREENBERG, M.D.                             IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellant

                       v.

BARBARA M. BUCKLEY

                             Appellee                        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.

DISSENTING MEMORANDUM BY LAZARUS, J.:                      FILED AUGUST 08, 2017

      I respectfully dissent from the learned Majority’s decision.            I do not

believe that under these circumstances judicial immunity protects Buckley

from liability arising from her statements to the Board of Medicine.

      In holding that Buckley’s statements were subject to judicial privilege,

the majority cited to “quasi-judicial immunity,” which it believes applies to

statements made by witnesses to a Board of Medicine Investigator.

Greenberg v. McGraw, 2017 WL 1788356 *3 (Pa. Super. Filed May 5,

2017) (judicial privilege is applicable to communications made prior to

institution of proceedings if such communications were pertinent and

material   and   had        been   issued   in   regular   course   of   preparing   for

contemplated proceedings). Statements made in pleadings and the regular

course of judicial proceedings are absolutely privileged.                  Pollina v.
J-A03012-17



Dishong, 98 A.3d 613, 618 (Pa. Super. 2014).        Here, however, Buckley

made statements to an investigator from the Board of Medicine, allegedly

with the hope of maliciously initiating a proceeding to harass Dr. Greenberg.

Thus, the statements were not part of a judicial proceeding and are not

accorded absolute privilege on this basis. Id.

     Moreover, I do not believe that the investigation is a “quasi-judicial

proceeding” to which privilege would apply.      Id. at 622 (quasi-judicial

immunity extends to witnesses testifying at adjudicatory hearing).         In

determining 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.    “The fact that an administrative agency performs certain

adjudicatory functions will not justify the extension of quasi-judicial

immunity to non-adjudicatory function of the same agency.”        Id.   Here,

there is a clear distinction between the adjudicatory and investigative

functions of the Board of Medicine, and I would decline to extend quasi-

judicial immunity to preliminary statements proffered to the investigative

arm of the Board of Medicine. Pollina, supra.

     Moreover, I note that the statute governing reports to the Board

contains the following: “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 from such report.” 63 P.S. § 422.4(f) (emphasis

added). Thus, this statement implies that if reports to the Board of Medicine

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are made in bad faith, a remedy may be available.        I see nothing therein

that precludes recovery in a defamation action under this circumstance.1

       Accordingly, I disagree with majority’s affirmation of the trial court in

sustaining Buckley’s preliminary objections in the nature of a demurrer as to

Dr. Greenberg’s defamation cause of action.




____________________________________________


1
   I acknowledge that the confidentiality provisions that apply to the
complaint and investigation process when a complainant makes a statement
regarding a medical doctor to the Board of Medicine may constitute a basis
for absolute privilege of statements made to investigators. See 40 P.S. §
1303.907(a); 49 Pa.Code § 16.55(c). These provisions provide for privilege,
but I do not read them to provide, unequivocally, an absolute privilege.
Significantly, both of the above provisions indicate that the Board can give
written consent to disclose information provided during the investigation
process. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866
A.2d 270 (Pa. 2005). However, nothing in this Dissent shall be construed as
diminishing the protections provided for whistleblowers in the Pennsylvania
Whistleblower Law, 43 P.S. §§ 1421-1428. See 43 P.S. § 1423(c) (“An
appropriate authority to which a violation of this act was reported may not
disclose the identity of a whistleblower without the whistleblower’s consent
unless disclosure is unavoidable in the investigation of the alleged
violation.”); 43 P.S. § 1423(a) (“No employer may discharge, threaten or
otherwise discriminate or retaliate against an employee . . . because the
employee . . . makes a good faith report or is about to report, verbally or in
writing, to the employer or appropriate authority an instance of wrongdoing
or waste . . . as defined in this act.”).



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