Commonwealth Physician Network, LLC v. Manganiello

COMMONWEALTH PHYSICIAN NETWORK, LLC, Appellee v. CHARLES M. MANGANIELLO, M.D., Appellant

No. 175 MDA 2021

No. J-A10037-22

Superior Court of Pennsylvania

November 21, 2022

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered December 29, 2020 In the Court of Common Pleas of Luzerne County Civil Division at No(s) 2020-04496.

Joseph D. Seletyn, Esq.

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

MEMORANDUM

KING J.

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 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 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 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 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.

4. Produce all documents concerning, evidencing or reflecting any communication from January 1, 2020, to the present

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