Commonwealth Phys. Network, LLC v. Manganiello, C.

J-A10037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH PHYSICIAN : IN THE SUPERIOR COURT OF

NETWORK, LLC : PENNSYLVANIA

:

Appellee :

:

v. :

:

CHARLES M. MANGANIELLO, M.D. :

:

Appellant : No. 175 MDA 2021

Appeal from the Order Entered December 29, 2020

In the Court of Common Pleas of Luzerne County

Civil Division at No(s): 2020-04496

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED NOVEMBER 21, 2022

Appellant, Charles M. Manganiello, M.D., appeals from the order entered

in the Luzerne County Court of Common Pleas, which granted the motion to

compel filed by Appellee, Commonwealth Physician Network, LLC (“CPN”), and

directed Appellant to respond fully to CPN’s interrogatories and request for

production of documents. We affirm.

The trial court set forth the relevant facts and procedural history of this

case as follows:

[Appellant] previously worked as a physician for [CPN]. The

Asset Purchase Agreement (“Agreement”) reached between

[CPN] and [Appellant] included a non-compete and non-

solicitation clause prohibiting [Appellant] from practicing

medicine within twenty miles of either his office with [CPN]

or Wilkes-Barre General Hospital, and prohibited

[Appellant]’s solicitation of former clients with [CPN], for

two years following the Agreement’s termination. If either

party breached the terms of the Agreement, the other party

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could immediately terminate it.

[CPN] alleges that it notified [Appellant] in January 2020 of

his suspension and review following alleged non-compliance

with other terms of the Agreement. However, [CPN] further

alleges that not until March 2, 2020 did [CPN] actually

terminate [Appellant]’s employment. When precisely [CPN]

terminated [Appellant]’s employment is a matter of dispute

between the parties. The alleged termination letter of March

2, 2020 also advised [Appellant] that his violations of the

Agreement resulted in an obligation to pay [CPN]

$518,000.00. On March 21, 2020, [Appellant] sent [CPN] a

letter advising that he intended to resume practice of

medicine in his local community. [CPN] believed that by

March 23, 2020, [Appellant] was actively seeking local

medical office space from Guy M. Fasciana, M.D. less than

nine miles from Wilkes-Barre General Hospital and less than

four miles from [Appellant]’s prior medical office with [CPN].

On March 28, 2020 [Appellant] issued an advertisement in

a local newspaper indicating his return to medical practice

and soliciting inquiries. [CPN] also alleges that the

advertisement appeared [in] a Change.org Petition shared

with approximately 2,109 people.

[CPN] sought to enjoin [Appellant] from further private

medical practice and solicitation in violation of the

Agreement restrictions and also sought liquidated damages.

The injunction request became moot when [Appellant]

voluntarily discontinued his private medical practice in late

2020. Earlier, when attempting to proceed with discovery,

[CPN] filed a Motion to Compel Answers to [CPN]’s

Interrogatories, Request for Production, and Request for

Admission on July 7, 2020. An Order dated September 24,

2020 denied [Appellant]’s previously filed Motion for

Protective Order and directed [Appellant] to respond to the

Interrogatories, Request for Production and Request for

Admission within thirty days. The court further footnoted

that the same Order addressed [CPN’s Motion to Compel]

thereby rendering said motion moot.

On October 20, 2020 [CPN] filed a Second Motion to Compel

Answers to [CPN]’s Interrogatories and Request for

Production via Rule to Show Cause. The court scheduled

the Rule to Show Cause for December 11, 2020 via

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telephone. The Rule to Show Cause did not include a

deadline for [Appellant] to file a response. [CPN] served the

Rule to Show Cause upon [Appellant] via email on

November 10, 2020…. [Appellant] eventually filed an

Answer on December 10, 2020 and served a copy on this

court via email after closing hours that same day.

(Trial Court Opinion, filed July 20, 2021, at 1-3) (internal citations omitted).

Appellant raised objections to the following of CPN’s interrogatories:

10. When did you first communicate with Guy

Fasciana, M.D. regarding opening a medical practice after

January 1, 2020? Describe the communication in detail,

including without limitation, the date, time, and exact

location of the communication, the participants in the

communication, any witnesses to the communication, and

any actions that you took as a result of the communication.

11. Between January 1, 2020 and the opening your

medical practice at 605 Main Street, Duryea, Pennsylvania,

did you speak to any third party other than Fasciana LLP

regarding the possibility of leasing space for a medical

practice? If so, describe the communication in detail,

including without limitation, the date, time, and exact

location of the communication, the participants in the

communication, any witnesses to the communication, and

any actions that you took as a result of the communication.

12. Set forth the date and time of the first patient

encounter in which you participated at 605 Main Street,

Duryea, Pennsylvania.

13. From January 1, 2020, to March 2, 2020, did you

provide medical care to any individual at a location other

than 1099 South Township Boulevard, Pittston,

Pennsylvania? If so, and without disclosing any information

protected from disclosure by the Health Insurance

Portability and Accountability Act of 1996 (“HIPAA”),

describe each such patient interaction in detail, including

without limitation the date, time, and exact location (e.g.,

the address) of the interaction, the participants in the

interaction (without identifying the patient), any witnesses

to the interaction, and any actions that you took as a result

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of the interaction.

14. From January 1, 2020 to the present, have you (or

are you aware of any individual on your behalf having)

communicated with any present or former CPN employee

regarding your new medical practice? If so, describe each

such communication in detail, including without limitation

the date, time, and exact location of the communication, the

participants in the communication, any witnesses to the

communication, any actions that you took as a result of the

communication, and any response that you received from

any employee of CPN regarding the communication (or of

which you are aware from the individual identified).

15. From January 1, 2020 to the present, have you (or

are you aware of any individual on your behalf having)

communicated with any patient whom you treated while you

were employed by CPN about providing medical care or the

prospect of providing medical care to the patient/individual?

If so, and without disclosing any information protected from

disclosure by [HIPAA], describe each such communication

in detail, including without limitation the date, time, and

exact location of the communication, the participants in the

communication, any witnesses to the communication, and

any actions that you took as a result of the communication.

16. From January 1, 2020 to the present, have you (or

are you aware of any individual on your behalf having)

communicated with any media outlet, including, without

limitation, any print or digital publication, regarding your

medical practice? If so, describe each such communication

in detail, including without limitation the date, time, and

exact location of the communication, the participants in the

communication, any witnesses to the communication,

whether the communication concerned CPN or any other

medical practice, and any actions that you took as a result

of the communication.

* * *

18. Have you or has anyone on your behalf

incorporated a business (in any corporate form, e.g. a

“corporation,” “limited liability partnership” or any other

form) from January 1, 2020 to the present? If so, identify

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the name of the business or business entity, the date of

incorporation, the location of the business and any other

individuals with whom you are in partnership?

* * *

20. From January 1, 2020, to the present, have you

communicated with Janet Caputo or Attilio Laschi, Jr.,

regarding (1) your medical practice or (2) any petition or

organizing effort? If so, describe each such communication

in detail, including without limitation the date, time, and

exact location of the communication, the participants in the

communication, any witnesses to the communication, and

any actions that you took as a result of the communication.

(CPN’s Second Motion to Compel, Exhibit B, filed 10/30/20, at 7-10).

Appellant raised objections to the following of CPN’s request for

production of documents:

1. Produce all employee time and payroll records of

your current medical practice (i.e., at 605 Main Street,

Duryea, Pa.) reflecting time that you or any individual

working to support your medical practice (whether as an

employee or contractor) have worked or payments made to

any employee working to support your medical practice

from January 1, 2020, to the present.

2. Produce a copy of any appointment diary,

chronology, log, calendar, appointment book, or schedule

reflecting medical care that you provided or were scheduled

to provide which was kept by you or any individual on your

behalf from January 1, 2020 to the present. In doing so,

please redact the patient’s name, any other identifying

information, his/her diagnosis (if any), and any other

information protected from disclosure by [HIPAA].

3. Produce all documents concerning, evidencing or

reflecting any communication between you (or any

individual on your behalf) and any current or former CPN

employee, including without limitation Cheri Rash, from

January 1, 2020, to the present.

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4. Produce all documents concerning, evidencing or

reflecting any communication from January 1, 2020, to the

present between you (or any individual on your behalf) and

any individual whom you treated while employed by CPN.

In so doing, please redact the patient’s name, any other

identifying information, his/her diagnosis (if any), and any

other information protected from disclosure by HIPAA.

5. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

individual on your behalf) and any media outlet, including

without limitation any print or digital publication, from

January 1, 2020 to the present

6. Produce all documents reflecting or referencing the

status of your employment with CPN that you or any person

on your behalf received from any agent, employee or

representative of CPN from January 1, 2020 to the present.

7. Produce all documents reflecting or referencing the

status of your employment with CPN that you or any person

on your behalf sent to any agent, employee or

representative of CPN from January 1, 2020 to the present.

8. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

individual on your behalf) and any insurance agent, broker,

or provider regarding insurance coverage for your medical

practice, including without limitation medical malpractice

coverage or general commercial liability.

9. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

individual on your behalf) and any accountant regarding

your medical practice from January 1, 2020, to the present.

10. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

individual on your behalf) and any business consultant

regarding your medical practice from January 1, 2020, to

the present.

11. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

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individual on your behalf) and any medical supplier or

equipment provider regarding your medical practice from

January 1, 2020, to the present.

12. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

individual on your behalf) and any office supplier or

equipment provider regarding your medical practice from

January 1, 2020, to the present.

13. Produce all documents concerning, evidencing, or

reflecting any communication between you (or any

individual on your behalf) and any agent or employee of

Geisinger Health System regarding your medical practice

from January 1, 2020, to the present.

14. Produce all documents concerning, evidencing, or

reflecting any efforts by you (or any individual on your

behalf) to incorporate (in any form) any business between

January 1, 2020 and the present.

15. Produce all documents concerning, evidencing, or

reflecting any calls, text messages, email messages,

multimedia messages, or other communications made to or

from any mobile phone used by you from January 1, 2020

to the present which relate or refer to the status of your

employment with CPN and/or your medical practice after

January 15, 2020.

16. Produce all documents concerning, evidencing, or

reflecting any communication between you and Eileen Reilly

or any of her partners, associates, employees, or agents

regarding the status of your employment with CPN as of

January 14, 2020 to the present and/or efforts to open a

private medical practice after January 15, 2020.

* * *

19. Produce any and all documents (not otherwise

produced) that you believe support your belief that [CPN]

“further materially breached the Agreement on January 14,

2020 when it immediately terminated [your] employment

without cause,” as alleged in Paragraph 6 of your Answer to

Motion for Preliminary Injunction.

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20. Produce any and all documents (not otherwise

produced) that you believe support your belief that

“[f]ollowing [CPN]’s material breaches of the Agreement,

[you] had no obligation to continue performance under

purported restrictive covenants contained in the

Agreement,” as alleged in Paragraph 6 of your Answer to

Motion for Preliminary Injunction.

* * *

24. Produce any and all documents (not otherwise

produced) that you believe support your denial “that [you

were] obligated, or refused, to participate in [CPN]’s

purported ‘compliance investigation,’ as alleged in

Paragraph 55 of your Answer to Motion for Preliminary

Injunction.

25. Produce any and all documents (not otherwise

produced) that you believe support your belief that [CPN’s]

“protectable business interests are outweighed by [your]

interest in earning a living in [your] chosen profession and

the general interest of the public,” as alleged in Paragraph

61 of your Answer to Motion for Preliminary Injunction.

(CPN’s Second Motion to Compel, Exhibit C, filed 10/30/20, at 7-10).

Following oral argument, the court issued an order on December 29,

2020, granting CPN’s motion to compel and directing Appellant to serve full

and complete responses to CPN’s discovery requests. Appellant filed a notice

of appeal on January 25, 2021. On February 8, 2021, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant complied on March 17, 2021.

Appellant raises the following issues of our review:

Whether the trial court erred in overruling [Appellant]’s

objections to written discovery on the basis of the physician-

patient privilege, Pennsylvania Rule of Civil Procedure

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4003.6, and constitutional privacy rights when the written

discovery requests sought the disclosure of third party

medical and health information.

Whether the trial court erred in overruling [Appellant]’s

objections to written discovery on the basis of the attorney

client privilege, the work product doctrine, and Pennsylvania

Rule of Civil Procedure 4003.3 when the written discovery

requests substantially and/or exclusively seek to discover

communications between [Appellant] and his counsel of

record as well as the mental impressions, conclusions,

opinions, notes, and legal research of [Appellant]’s counsel

of record.

Whether the trial court erred in overruling [Appellant]’s

objections to written discovery on the basis of constitutional

privacy rights when the written discovery requests sought

the disclosure of confidential financial records, proprietary

business information, and private communications with

accountants, insurance brokers, family members and

friends.

(Appellant’s Brief at 4).1

As a prefatory matter, “[a]n appeal may be taken only from a final order

unless otherwise permitted by statute or rule.” Carbis Walker, LLP v. Hill,

Barth and King, LLC, 930 A.2d 573, 577 (Pa.Super. 2007) (quoting Ben v.

Schwartz, 556 Pa. 475, 481, 729 A.2d 547, 550 (1999)). Collateral orders

are an exception to this general rule. See Pa.R.A.P. 313.

To qualify as a collateral order under Rule 313, the order

must be separate and distinct from the underlying cause of

____________________________________________

1 We observe that the issues presented in Appellant’s statement of questions

involved are phrased differently than those raised in his Rule 1925(b)

statement. We caution Appellant that the failure to properly state the issues

to be resolved could result in waiver on appeal. Nevertheless, because the

issues presented on appeal were fairly suggested by those raised in the Rule

1925(b) statement, we decline to find waiver here.

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action. Additionally, it is not sufficient that the issue under

review is important to a particular party; it must involve

rights deeply rooted in public policy going beyond the

particular litigation at hand. Finally, there must be no

effective means of review available after an Order requiring

the production of documents is reduced to judgment.

Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-24

(Pa.Super. 2007) (internal citations and quotation marks omitted). “[R]ule

313 must be interpreted narrowly, and the requirements for an appealable

collateral order remain stringent in order to prevent undue corrosion of the

final order rule. To that end, each prong of the collateral order doctrine must

be clearly present before an order may be considered collateral.” Meyer-

Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 936 (Pa.Super.

2016), appeal denied, 641 Pa. 251, 167 A.3d 701 (2017) (internal citations

and quotation marks omitted). “[T]he collateral order rule’s three-pronged

test must be applied independently to each distinct legal issue over which an

appellate court is asked to assert jurisdiction pursuant to Rule 313.” Rae v.

Pennsylvania Funeral Directors Ass'n, 602 Pa. 65, 80, 977 A.2d 1121,

1130 (2009).

“Generally, discovery orders are deemed interlocutory and not

immediately appealable, because they do not dispose of the litigation. On the

other hand, discovery orders requiring disclosure of privileged materials

generally are appealable under Rule 313 where the issue of privilege is

separable from the underlying issue.” Meyer-Chatfield Corp., supra.

Significantly, Pennsylvania courts have held that discovery

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orders involving potentially confidential and privileged

materials are immediately appealable as collateral to the

principal action. This Court has also recognized that an

appellant’s colorable claim of attorney-client and attorney

work-product privilege can establish the propriety of

immediate appellate review.

Berkeyheiser, supra (internal citations and quotation marks omitted).

Here, Appellant claims error in the trial court’s discovery order on the

grounds that CPN’s discovery requests were irrelevant, overly broad, unduly

burdensome, and already in CPN’s possession. These claims are not separable

from the main cause of action, however, because an analysis of the relevance

and scope of the discovery requests necessitates examination of the

parameters of the underlying breach of contract action. See Berkeyheiser,

supra. Additionally, Appellant has failed to demonstrate that these issues are

deeply rooted in public policy beyond the litigation at hand. Id. Therefore,

Appellant’s objections based on relevance and the scope of the discovery

requests do not meet the standard set forth in Rule 313 to qualify as

immediately reviewable under the collateral order doctrine. See Meyer-

Chatfield Corp., supra (holding that objections on grounds that discovery

was overbroad and burdensome are not appealable as collateral order). See

also Commonwealth v. Flor, 635 Pa. 314, 325 n.8, 136 A.3d 150, 156 n.8

(2016) (stating: “Litigants may not…rely upon Rule 313 to challenge discovery

orders for reasons unrelated to privilege claims, without satisfying the

requirements of Rule 313 as to each issue”). Accordingly, we are without

jurisdiction to address Appellant’s objections based on relevance and scope of

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discovery requests.2

Nevertheless, Appellant also raises assertions of physician-patient

privilege, attorney-client privilege, attorney work product privilege and the

right to privacy. These claims are separable from the main cause of action

because this Court can address those issues without an analysis of the

underlying breach of contract action. Additionally, the privileges asserted by

Appellant implicate rights deeply rooted in public policy. See Berkeyheiser,

supra. Further, enforcement of the order would require Appellant to disclose

the disputed information and documents. Thus, there would be no effective

means of review available absent our immediate review. Id. Accordingly, the

order on appeal as it relates to Appellant’s assertions of privilege and privacy

rights is collateral to the main cause of action and immediately reviewable.

See Id. See also Jones v. Faust, 852 A.2d 1201 (Pa.Super. 2004)

(reviewing discovery order as collateral to main cause of action where

appellant asserted order violated rights to privacy and confidentiality).

In his issues combined,3 Appellant argues that CPN’s interrogatories and

request for production of documents seek information that is privileged.

____________________________________________

2 Significantly, the dissent focuses primarily on the relevance and scope of the

discovery requests at issue. Nevertheless, for the reasons discussed above,

those claims are not properly before us under the collateral order doctrine.

3Pursuant to Pa.R.A.P. 2119(a), the argument shall be divided into as many

parts as there are questions to be argued. See Pa.R.A.P. 2119(a).

Nevertheless, Appellant purports to conflate some of his arguments

(Footnote Continued Next Page)

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Specifically, Appellant asserts that request for production #15 and #16 seek

to discover privileged communication between Appellant and his attorney.

Appellant further contends that request for production #20 requests

Appellant’s counsel to produce her legal research and notes in support of

Appellant’s claims. Additionally, Appellant claims that interrogatory #15 and

#20 and request for production #2 and #4 request information about

confidential communication between Appellant and his patients that is

protected by the physician-patient privilege. Appellant maintains that

redacting patient names and contact information does not guarantee

anonymity because CPN “has access to many such patients’ unredacted prior

medical records for comparison.” (Appellant’s Brief at 30).

Further, Appellant asserts that the court failed to adequately consider

his and his patients’ constitutionally protected privacy interests. Appellant

argues that the court ordered the disclosure of confidential third-party medical

records without adequately weighing competing interests and analyzing the

actual need for disclosure of the requested information and documents.

Appellant argues that the need to impeach a physician during civil litigation

does not outweigh the privacy rights of a third-party patient. Similarly,

Appellant contends that the court failed to properly consider his asserted

privacy interests in avoiding disclosure of personal communication with his

____________________________________________

concerning each privilege asserted for the discovery requests at issue.

Therefore, we will discuss Appellant’s issues together.

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friends and associates, and confidential and proprietary business information.

Appellant concludes the court erred by ordering Appellant to produce

information that is privileged or in violation of his constitutional privacy rights

and this Court should vacate the discovery order. We disagree.

This Court has explained:

“Whether the attorney-client privilege or the work product

doctrine protects a communication from disclosure is a

question of law.” In re Thirty-Third Statewide

Investigating Grand Jury, 624 Pa. 361, [379,] 86 A.3d

204, 215 (2014). Indeed, the attorney-client privilege is

now embodied in a statute. See 42 Pa.C.S. § 5928 (“In a

civil matter counsel shall not be competent or permitted to

testify to confidential communications made to him by his

client, nor shall the client be compelled to disclose the same,

unless in either case this privilege is waived upon the trial

by the client.”). Where “the issue is the proper

interpretation of a statute, it poses a question of law,” as

well. Phoenixville Hosp. v. Workers' Compensation

Appeal Board, 623 Pa. 25, [38,] 81 A.3d 830, 838 (2013).

Thus, the standard of review is de novo, and the scope of

review is plenary. [Commonwealth v. Flor, 635 Pa. 314,

322, 136 A.3d 150, 154 (2016)]; [Yocabet v. UPMC

Presbyterian, 119 A.3d 1012, 1019 (Pa.Super. 2015)].

Brown v. Greyhound Lines, Inc., 142 A.3d 1, 8 (Pa.Super. 2016).

The Rules of Civil Procedure set forth guidelines on discoverable

materials as follows:

Rule 4003.1. Scope of Discovery Generally. Opinions

and Contentions

(a) Subject to the provisions of Rules 4003.2 to 4003.5

inclusive and Rule 4011, a party may obtain discovery

regarding any matter, not privileged, which is relevant to

the subject matter involved in the pending action, whether

it relates to the claim or defense of the party seeking

discovery or to the claim or defense of any other party,

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including the existence, description, nature, content,

custody, condition and location of any books, documents, or

other tangible things and the identity and location of

persons having knowledge of any discoverable matter.

(b) It is not ground for objection that the information sought

will be inadmissible at the trial if the information sought

appears reasonably calculated to lead to the discovery of

admissible evidence.

(c) Except as otherwise provided by these rules, it is not

ground for objection that the information sought involves an

opinion or contention that relates to a fact or the application

of law to fact.

Pa.R.C.P. 4003.1.

“Certain materials are privileged and beyond the scope of discovery.”

Berkeyheiser, supra at 1126. “[T]he attorney-client privilege has deep

historical roots and indeed is the oldest of the privileges for confidential

communications in common law.” Red Vision Systems, Inc. v. National

Real Estate Information Services, L.P., 108 A.3d 54, 60 (Pa.Super. 2015),

appeal denied, 632 Pa. 663, 116 A.3d 605 (2015). The privilege is defined by

statute as follows:

§ 5928. Confidential communications to attorney

In a civil matter counsel shall not be competent or permitted

to testify to confidential communications made to him by his

client, nor shall the client be compelled to disclose the same,

unless in either case this privilege is waived upon the trial

by the client.

42 Pa.C.S.A. § 5928.

“Despite the language of the statute, communications from an attorney

to a client—not just communications by a client to an attorney—are protected

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under Pennsylvania law.” Office of Disciplinary Counsel v. Baldwin, ___

Pa. ___, ___, 225 A.3d 817, 849 (2020). “The purpose of the attorney-client

privilege is to ‘foster a confidence between attorney and client that will lead

to a trusting and open dialogue.’” Berkeyheiser, supra at 1126 (quoting

Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa.Super.

2003)).

The attorney-client privilege is not absolute. See Red Vision Systems,

supra at 62. “The privilege exists only to aid in the administration of justice,

and when it is shown that the interests of the administration of justice can

only be frustrated by the exercise of the privilege, the trial judge may require

that the communication be disclosed.” Id. (quoting Cohen v. Jenkintown

Cab Co., 357 A.2d 689, 693-94 (Pa.Super. 1976)).

Unlike the attorney-client privilege, the work-product privilege “does not

necessarily involve communications with a client.” Gillard v. AIG Ins. Co.,

609 Pa. 65, 89 n.16, 15 A.3d 44, 59 n.16 (2011). Pennsylvania Rule of Civil

Procedure 4003.3 governs attorney work product as follows:

Rule 4003.3. Scope of Discovery. Trial Preparation

Material Generally

Subject to the provisions of Rules 4003.4 and 4003.5, a

party may obtain discovery of any matter discoverable

under Rule 4003.1 even though prepared in anticipation of

litigation or trial by or for another party or by or for that

other party’s representative, including his or her attorney,

consultant, surety, indemnitor, insurer or agent. The

discovery shall not include disclosure of the mental

impressions of a party’s attorney or his or her conclusions,

opinions, memoranda, notes or summaries, legal research

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or legal theories. With respect to the representative of a

party other than the party’s attorney, discovery shall not

include disclosure of his or her mental impressions,

conclusions or opinions respecting the value or merit of a

claim or defense or respecting strategy or tactics.

Explanatory Comment—1978

The amended Rule radically changes the prior practice as to

discovery of documents, reports and tangible things

prepared in anticipation of litigation or for trial by or for

another party or by or for that party’s representative,

including his attorney, consultant, surety, indemnitor,

insurer or agent.

* * *

There are, however, situations under the Rule where the

legal opinion of an attorney becomes a relevant issue in an

action; for example, an action for malicious prosecution or

abuse of process where the defense is based on a good faith

reliance on a legal opinion of counsel. The opinion becomes

a relevant piece of evidence for the defendant, upon which

defendant will rely. The opinion, even though it may have

been sought in anticipation of possible future litigation, is

not protected against discovery. A defendant may not base

his defense upon an opinion of counsel and at the same time

claim that it is immune from pre-trial disclosure to the

plaintiff.

As to representatives of a party, and sometimes an

attorney, there may be situations where his conclusions or

opinion as to the value or merit of a claim, not discoverable

in the original litigation, should be discoverable in

subsequent litigation. For example, suit is brought against

an insurance carrier for unreasonable refusal to settle,

resulting in a judgment against the insured in an amount in

excess of the insurance coverage. Here discovery and

inspection should be permitted in camera where required to

weed out protected material.

* * *

Pa.R.C.P. 4003.3.

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Further, the physician-patient privilege is codified as follows:

§ 5929. Physicians not to disclose information

No physician shall be allowed, in any civil matter, to disclose

any information which he acquired in attending the patient

in a professional capacity, and which was necessary to

enable him to act in that capacity, which shall tend to

blacken the character of the patient, without consent of said

patient, except in civil matters brought by such patient, for

damages on account of personal injuries.

42 Pa.C.S.A. §5929.

“Pennsylvania law distinguishes between information communicated to

a physician by a patient and information acquired through examination and

observation.” Stenger v. Lehigh Valley Hosp. Ctr., 530 Pa. 426, 434, 609

A.2d 796, 800 (1992). “The distinction originates in the rationale of the

statute which was designed to create a confidential atmosphere in which a

patient will feel free to disclose all possible information which may be useful

in rendering appropriate treatment.” Grimminger v. Maitra, 887 A.2d 276,

279 (Pa.Super. 2005), appeal denied, 588 Pa. 789, 906 A.2d 1197 (2006).

Therefore, “the patient-physician privilege is limited to information which

would offend the rationale of the privilege, i.e., information directly related to

the patient’s communication and thus tending to expose it.” Stenger, supra

at 440, 609 A.2d at 803. Additionally, the privilege is intended to protect “a

patient’s communications if doing so would release confidential information …

which would blacken the character of the patient.” Grimminger, supra at

279-80.

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Additionally, the U.S. and Pennsylvania Constitutions provide protection

for an individual’s right to privacy. See Stenger, supra at 434, 609 A.2d at

800. However, this right is not absolute and must be balanced against weighty

competing private and state interests. Id. Our Supreme Court has recognized

“an individual interest in avoiding disclosure of personal matters…” Id. “The

object of such a right is, in part, to protect an individual from revealing matters

which could impugn his character and subject him to ridicule or persecution.”

Id. Generally, this privacy interest is not offended by anonymous disclosures

as the shield of anonymity protects an individual from disrepute. See id. at

435, 609 A.2d 801.

Instantly, the court considered each of Appellant’s objections to CPN’s

discovery requests and determined that they were without merit. Regarding

Appellant’s objections based on the physician-patient privilege in his first

appellate issue, the court found that the limited information requested by CPN

did not encroach on the information protected by the privilege. Appellant

asserts this privilege in response to CPN’s request for production #2 and #4

and interrogatories #15 and #20. Request for production #2 only requests

information about patient scheduling, which does not require Appellant to

reveal confidential patient communication protected by the privilege. See

Grimminger, supra; Stenger, supra. Similarly, interrogatory #20 requests

information about Appellant’s communication with two patients regarding

Appellant’s medical practice and any petitions and organizing efforts they

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undertook to support Appellant. Although this request seeks information

about communication between Appellant and his patients, the communication

in question is unrelated to providing medical care and thus, falls outside of the

scope of the privilege. See id.

Both request for production #4 and interrogatory #15 request

information about any communication from January 1, 2020 to present that

Appellant had with patients he treated while employed by CPN. CPN seeks

this information to gather evidence on whether Appellant solicited CPN’s

patients in violation of the Agreement. To limit the information sought to the

desired purpose, CPN’s requests specifically direct Appellant to redact names

and identifying information, medical diagnosis and any other information

protected from disclosure by HIPPA.4 Therefore, the requested information

____________________________________________

4HIPPA’s privacy rules prevent the disclosure of protected health information.

See 45 C.F.R. § 164.502(a). Protected health information includes:

Individually identifiable health information is information

that is a subset of health information, including

demographic information collected from an individual, and:

(1) Is created or received by a health care provider, health

plan, employer, or health care clearinghouse; and

(2) Relates to the past, present, or future physical or mental

health or condition of an individual; the provision of health

care to an individual; or the past, present, or future

payment for the provision of health care to an individual;

and

(i) That identifies the individual; or

(Footnote Continued Next Page)

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on patient communication would exclude identifying information and

information about medical history, diagnosis, and medical care provided to

the individual. We agree with the trial court that the limited information

sought does not fall within the purview of the physician-patient privilege. See

Grimminger, supra; Stenger, supra. With identifying information and

medical details redacted, it is unclear how the information produced could

blacken the character of the patient.5 See id. Accordingly, we see no error

by the trial court in ordering Appellant to provide complete answers to the

discovery requests to which Appellant asserted the physician-patient

privilege.6 See Berkeyheiser, supra. See also Brown, supra.

Regarding Appellant’s objections based on attorney-client privilege and

____________________________________________

(ii) With respect to which there is a reasonable basis to

believe the information can be used to identify the

individual.

45 C.F.R. § 160.103

5 Appellant’s assertion that anonymity is not guaranteed because CPN can

compare the records to prior unredacted medical records in CPN’s possession

is speculative at best. Additionally, even if patient identities were made known

to CPN, the requested information does not include sensitive medical

information protected by the privilege.

6 Appellant’s reliance on Rule 4003.6 is misguided. Rule 4003.6 states that

“information may be obtained from the treating physician of a party only upon

written consent of that party or through a method of discovery authorized by

this chapter.” Pa.R.C.P. 4003.6. This rule governs the procedure by which

medical information may be obtained about a party. As CPN has not sought

to obtain medical information about Appellant, this rule is inapplicable to the

instant matter.

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work-product privilege presented in his second appellate issue, the court

explained that it did not order Appellant to produce privileged information to

CPN. Rather, the court noted that Appellant responded to the discovery

requests with a bald assertion of privilege without following the procedure set

forth in CPN’s requests on how to assert privilege. Specifically, CPN’s requests

state that Appellant should identify the matter, describe the subject matter,

specify the privilege asserted, and identify all persons who have had access

to the matter. As such, the court’s order merely directed Appellant to provide

full responses to CPN’s discovery requests and to assert the proffered privilege

in the manner requested by CPN. Consequently, we see no error in the court’s

order directing Appellant to provide complete answers to CPN’s discovery

requests as it related to Appellant’s objections based on attorney-client

privilege and work-product privilege. See Berkeyheiser, supra. See also

Brown, supra.

Further, with respect to Appellant’s third appellate issue, the court

determined that Appellant’s objections to CPN’s requests based on his privacy

interests were also without merit. Specifically, Appellant raised objections

based on privacy rights to CPN’s interrogatories ##10-16 and ##18-20, and

request for production ##1-14, 19, 24, and 25. Interrogatories ##10, 11,

14, 16, 18 and 19, and request for production ##1, 3, and 5-15, request

information and records about conversations that Appellant had with peers,

business consultants, insurance providers, accountants, suppliers, media

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outlets and CPN’s former employees regarding the set up and operation of

Appellant’s medical practice and Appellant’s employment with CPN and other

entities. Request for production ##19, 24 and 25 request Appellant to

produce documents that support various specific claims in Appellant’s answer

to CPN’s complaint. Appellant’s brief fails to cite to any relevant authority to

demonstrate that he has a recognized privacy interest in avoiding disclosure

of the information requested in the discovery requests listed above. As such,

Appellant has waived this argument. See In re Estate of Whitley, 50 A.3d

203, 209 (Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013)

(reiterating: “This Court will not consider the merits of an argument which

fails to cite relevant case or statutory authority”).

The only privacy interest properly identified by Appellant is a patient’s

right to avoid disclosure of confidential medical information. Of the discovery

requests to which Appellant objected, interrogatory ##12, 13, and 20, and

request for production ##2 and 4 request information about Appellant’s

patients. However, the right to privacy does not cover all patient information

but is limited to confidential medical information which would impugn the

character of the patient or subject the patient to ridicule if revealed. See

Stenger, supra. As previously discussed, CPN only requested patient

information with all identifying information and protected medical information

redacted. As such, the limited, anonymous patient information requested by

CPN does not implicate a protected privacy interest. See id. Therefore, we

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see no error in the court’s decision to overrule Appellant’s objections to CPN’s

discovery requests based on a violation of privacy rights. See Berkeyheiser,

supra. See also Brown, supra. Accordingly, Appellant is not entitled to

relief on any of his claims on appeal and we affirm.

Order affirmed.

Judge Kunselman joins this memorandum.

President Judge Panella files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2022

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