J-A10037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH PHYSICIAN 

NETWORK, LLC

v.

CHARLES M. MANGANIELLO, M.D. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.

DISSENTING MEMORANDUM BY PANELLA, P.J.:FILED NOVEMBER 21, 2022

While I agree that discovery is to be liberally allowed so long as it may 

reasonably lead to the revelation of admissible evidence, it is equally true that 

“no effective system of discovery can be designed which is not subject to 

abuse.” Explanatory Comments to the Rules of Civil Procedure, Depositions 

and Discovery – 1978. Abuse prevention relies primarily on self-discipline 

amongst the bar. See id. However, where attorneys are not disciplined, the 

courts must act to prevent abuse. See id. 

At the outset, I emphasize that I do not conclude that Commonwealth 

is attempting to abuse the system, nor that the majority is condoning such 

conduct. Rather, I write to highlight that abuse prevention is impossible where 

courts do not exercise at least a modicum of control over the system. As a 

baseline, then, courts must scrupulously ensure that all discovery requests 
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comply with Pa.R.Civ.P. 4003.1(b): that all discovery requests must be 

reasonably calculated to lead to the discovery of admissible evidence. While 

this hurdle is quite low, it is not non-existent. After reviewing the record here, 

I conclude that Commonwealth is unable to clear the Rule 4003.1(b) hurdle, 

and I therefore dissent.

Here, Manganiello challenges the trial court’s orders granting 

Appellee's discovery requests, despite, upon my review, Appellee's failure to 

establish a compelling need for the discovery documents requested, which 

purportedly include privileged materials and private information relating to 

Manganiello’s patients and unrelated business decisions. Manganiello argues 

that the discovery requests in issue are impermissibly vague, overly broad 

because they address factual matters which are not relevant at this stage of 

the litigation, and are therefore not reasonably calculated to lead to the 

discovery of evidence admissible at this time. Most importantly, in my opinion, 

until there is a disposition by the trial court that Manganiello breached the 

contracts with Commonwealth, as alleged by Commonwealth in its Second 

Amended Complaint, the discovery requests are premature and are designed 

to invade Manganiello’s personal business dealings and handling of his 

patients. Simply stated, Commonwealth’s requests seek information not 

discoverable until Commonwealth establishes that Manganiello breached the 

contracts; until that time, this personal and business information is protected 

by Manganiello’s privacy rights. “Our Supreme Court has recognized that the 
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privacy interests protected by the federal Constitution receive the same 

protections from Pennsylvania's Constitution.” Jones v. Faust, 852 A.2d 

1201, 1203 (Pa. Super.2004). 

Cases concerning the constitutional right to privacy involve two 

separate interests: (1) the individual interest in avoiding 

disclosure of personal matters; and (2) the interest in making 

certain kinds of important decisions. Id. at 1205–06. However, 

“the right [to privacy] is not an unqualified one; it must be 

balanced against weighty competing private and state 

interests.” Id. at 1207 (quoting Stenger v. Lehigh Valley 

Hospital Center, 530 Pa. 426, 434, 609 A.2d 796, 800 (1992)).

Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1125–26 

(Pa. Super. 2007).

This interlocutory appeal arises from Commonwealth’s Second Amended 

Complaint, which alleged that Dr. Manganiello breached several contracts with 

Commonwealth. The first contract is an asset purchase agreement, which 

includes a non-compete clause. The second contract is an employment 

contract which contains a confidentiality agreement. The asset purchase 

agreement directly referenced the employment agreement.

Commonwealth alleged that Dr. Manganiello breached the employment 

agreement by, among several other allegations, using a non-licensed person 

to authorize his prescriptions to patients. As a result, Commonwealth notified

Dr. Manganiello on January 14, 2020, that it was suspending his employment 

pending an investigation. Shortly thereafter, Commonwealth concluded that 

Dr. Manganiello was not cooperating with its investigation and notified Dr. 
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Manganiello that it would terminate his employment after the appropriate 

notice period.

Commonwealth subsequently initiated this action, seeking to enjoin Dr. 

Manganiello’s continued practice of medicine within the area covered by the 

asset purchase agreement’s non-compete clause. Commonwealth also sought 

liquidated damages for the breach of each agreement.

Dr. Manganiello has conceded that he continued to practice medicine

after Commonwealth’s notice. He contends that since it was Commonwealth 

who first breached the contracts, he was no longer bound by the non-compete 

agreement.

So, right from the start, the universe of relevant evidence in this matter 

is constricted. The only legal issue in dispute which is relevant at this stage of 

the litigation is whether there was a breach of the contract by either party. As 

such, the only material factual issues in dispute are Commonwealth’s 

allegations that Dr. Manganiello materially breached the employment contract 

before Commonwealth suspended his employment.

The universe of relevant evidence is further restricted by 

Commonwealth’s election of liquidated damages:

[P]arties who agree to include a liquidated damages clause in their 

contract, and do so properly, cannot later claim entitlement to 

actual damages; rather, in keeping with the law of contracts, the 

parties must be bound by their bargain. This is true whether the 

complaint avers that the amount of liquidated damages is 

insufficient to fully compensate or excessive in light of the actual 

damage caused.
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Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157, 162 (Pa. Super. 1997).

Combined with Commonwealth’s election to seek an injunction pursuant to 

the non-compete clause, the amount of monetary damages should 

Commonwealth prevail is not in material dispute.1

With this knowledge in mind, I turn to Commonwealth’s proposed

discovery requests.

In Request for Production 1, Commonwealth requested “all employee 

time and payroll records of [Dr. Manganiello’s current office] reflecting time 

that you or any individual working to support your medical practice ... have 

worked or payments made to any employee working to support your medical 

practice from January 1, 2020, to the present.” Based on the pleadings of both 

parties, there is no indication that Dr. Manganiello operated out of his current 

office until well after January 14, 2020. Therefore, this information cannot 

lead to admissible evidence on the issue of whether Commonwealth had cause 

to suspend Dr. Manganiello on January 14, 2020. This request is not 

reasonably calculated to lead to admissible evidence.

In Request for Production 2, Commonwealth requested “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 

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1 Even in the absence of a conclusion that the “gist” of Commonwealth’s action 

sounds in contract, the election of liquidated damages would foreclose 

Commonwealth’s claim for tortious interference with contractual relations.
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was kept by you or any individual on your behalf from January 1, 2020 to the 

present.” Given the only material dispute of fact concerns whether Dr. 

Manganiello breached the contracts prior to January 14, 2020, this request is 

overbroad. While there is some remote possibility that patient appointments 

after January 14, 2020, could lead to admissible evidence, that is not the 

standard set forth in the Rules. The standard is whether the request appears 

reasonably calculated to lead to admissible evidence. Without more 

justification from Commonwealth, I conclude the request for information about 

patients beyond January 14, 2020, does not appear to be reasonably 

calculated to lead to admissible evidence.

In Request for Production 3, Commonwealth sought “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.” The trial 

court concluded that this request was relevant to the question of whether Dr. 

Manganiello solicited Commonwealth’s clients in contravention of the noncompete clause. As I have already noted, this is not a subject of material 

dispute. Without a different rationale from Commonwealth, I cannot conclude 

that this request is reasonably likely to lead to admissible evidence on the sole 

factual dispute of whether Dr. Manganiello breached the employment 

agreement prior to January 14, 2020.
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In Request for Production 4, Commonwealth requested “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.” Once again, only 

communications to patients from January 1 to January 14 could reasonably 

be expected to lead to admissible evidence. Without more justification from 

Commonwealth, the request for documents generated after January 14, 2020 

does not appear to be reasonably calculated to lead to admissible evidence.

In Request for Production 5, Commonwealth requested “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.” Similar 

to Request 3, the trial court ruled that this request was relevant to 

Commonwealth’s claims that Dr. Manganiello was soliciting clients for his 

separate practice after January 14, 2020. However, as noted previously, this 

is not in dispute. I fail to see how this request could be reasonably calculated 

to lead to admissible evidence on the issue of whether Dr. Manganiello 

breached the employment contract before January 14, 2020.

In Request for Production 6, Commonwealth sought “all documents 

reflecting the status of your employment with [Commonwealth] that you or 

any person on your behalf received from any agent, employee or 

representative of [Commonwealth] from January 1, 2020 to the present.” At 
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the outset, I once again fail to see how this request is reasonably calculated 

to lead to admissible evidence on the issue of whether Dr. Manganiello 

breached the employment agreement prior to January 14, 2020. Above and 

beyond this issue, however, is that even if it were reasonably calculated to 

lead to admissible evidence, it is improper. See Eigen v. Textron Lycoming 

Reciprocating Engine Div., 874 A.2d 1179, 1189 n.14 (Pa. Super. 2005) 

(noting that discovery does not require “a party to supply, at its own expense, 

information already under the control or readily available to the opposing 

party”). This request seeks documents generated by Commonwealth agents 

and sent to Dr. Manganiello. These documents are at least as available to 

Commonwealth as they are to Dr. Manganiello, and to request them from Dr. 

Manganiello through discovery is an abuse of the process.

Request for Production 7 is the reciprocal of Request 6: it seeks all 

documents Dr. Manganiello or his agents sent to Commonwealth regarding his 

employment with Commonwealth from January 1, 2020, to the present. For 

all of the reasons just discussed regarding Request 6, I would conclude this 

request cannot lead to admissible evidence and is further an abuse of the 

discovery process seeking documents equally in the possession of 

Commonwealth.

Request for Production 8 sought “all documents concerning ... any 

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

insurance agent, broker, or provider regarding insurance coverage for your 
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medical practice[.]” The trial court overruled Dr. Manganiello’s objection to 

this request, concluding the request was relevant to establishing whether Dr. 

Manganiello established a practice in contravention of the non-compete 

provision. As noted previously, that issue is not in dispute. And, in the absence 

of another reason for its relevance, I cannot conclude the request is 

reasonably calculated to lead to admissible evidence.

In Request for Production 9, Commonwealth requested “all documents 

concerning ... any communication between you [or any agent] and any 

accountant regarding your medical practice from January 1, 2020, to the 

present.” Once again, the trial court overruled Dr. Manganiello’s objection to

this request by concluding that it was relevant to the issue of whether Dr. 

Manganiello sought to establish a medical practice in contravention of the noncompete clause. As before, I conclude this was error, as there is no dispute 

that Dr. Manganiello in fact established such a practice – the only factual issue 

is whether he was entitled to do so due to his allegation that Commonwealth 

was already in breach of the contract.

Request for Production 10 fails for similar reasons. Request 10 sought 

“all documents concerning ... any communication between you [or any agent] 

and any business consultant regarding your medical practice from January 1, 

2020, to the present.” The trial court found that this request was relevant to 

the issue of whether Dr. Manganiello opened a new medical practice and 

solicited clients in violation of the non-compete provision. As set forth before, 
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this is in fact not relevant to any factual dispute in this matter, and the trial 

court’s reasoning constitutes error.

Requests 11 and 12 sought all documents pertaining to office or medical 

supplies and equipment from January 1, 2020, through January 14, 2020. I 

conclude that these requests are generally relevant, as they are limited in 

time to a period before January 14, 2020. However, they are still overbroad, 

in that any documents relating to business and medical supplies that were left 

in Commonwealth’s possession when Dr. Manganiello was suspended are not 

relevant to whether Dr. Manganiello was breaching the employment contract 

during that time. The proper scope of this request is for documents from 

January 1 to 14, 2020, pertaining to office or medical supplies later used in 

Dr. Manganiello’s separate practice.

Request for Production 13 is similarly generally relevant but overbroad. 

It sought “all documents concerning ... any communication between you [or 

your agent] and any agent or employee of Geisinger Health System regarding 

your medical practice from January 1, 2020, to the present.” For the period of 

January 1 to 14, 2020, this request is relevant and reasonably calculated to 

lead to admissible evidence. Beyond January 14, 2020, however, these 

documents become only remotely likely to lead to relevant, admissible 

evidence. Without more justification, I would conclude that this request is 

properly limited to January 1 to 14, 2020.
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Request for Production 14 requested “all documents concerning ... any 

efforts by you [or your agent] to incorporate any business between January 

1, 2020 and the present.” For all the reasons I have already set out above, 

this request is only relevant to the period of January 1 to 14, 2020. For the 

period after January 14, 2020, this request is not reasonably calculated to 

lead to admissible evidence.

Request 19 sought “all documents ... that you believe support your belief 

that [Commonwealth] “further materially breached the Agreement on January 

14, 2020[.]” Dr. Manganiello identified two such documents, one of which has 

already been produced to Commonwealth. The remaining document is the 

January 14, 2020 letter from Commonwealth to Dr. Manganiello informing Dr. 

Manganiello that he was suspended. Dr. Manganiello was not required to 

produce this document as it was equally available to Commonwealth. See 

Eigen, 874 A.2d at 1189 n.14. 

In Request 24, Commonwealth sought “all documents ... that you believe 

support your denial “that [you were obligated, or refused to participate in 

[Commonwealth’s] purported ‘compliance investigation,’” as alleged in 

Paragraph 55 of your Answer to Motion for Preliminary Injunction.” Dr. 

Manganiello identified 11 total documents, which he alleged are already in the 

possession of Commonwealth. Ten of these documents are letters from Dr. 

Manganiello’s then counsel addressed to Commonwealth. The remaining 

document is the “suspension letter” of January 14, 2020. All are likely in the 
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possession of Commonwealth. If Commonwealth asserts that it does not have 

any record of these documents, then it may request that Dr. Manganiello 

produce in discovery. Absent that assertion of record, these documents are 

equally available to Commonwealth under Eigen.

Request 25 sought “all documents ... that you believe support your belief 

that [Commonwealth’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.” Dr. Manganiello objected to this request by 

asserting it violated his attorney client privilege and the work product doctrine. 

To the extent that he did answer this request, he asserted that “responsive 

Pennsylvania caselaw is equally accessible to [Commonwealth] as it is to [Dr. 

Manganiello].” I agree with the trial court here, as Dr. Manganiello’s answer 

is non-responsive.

Clearly, Commonwealth is seeking any additional documents which 

might provide factual support for Dr. Manganiello’s claim. In his appellate 

brief, Dr. Manganiello asserts that he “already provided the factual basis 

supporting his legal conclusion as well as documents[.]” If this is true, Dr. 

Manganiello can offer this statement as his answer, and be subjected to any 

remedies reasonably constructed by the trial court if the court finds this 

answer to be untruthful or incomplete.
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In Interrogatories 15 and 20, Commonwealth wanted information about 

any attempts at soliciting Commonwealth patients for Dr. Manganiello’s 

separate practice. As set forth in detail above, I believe this interrogatory must 

be restricted to communications occurring before January 14, 2020. There is 

no factual dispute that Dr. Manganiello subsequently solicited his former 

patients for his separate practice. 

For all these reasons, I dissent from the majority’s memorandum 

affirming the trial court’s blanket refusal to entertain Dr. Manganiello’s 

objections to Commonwealth’s discovery requests.