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J-A22039-22  

GLENN HOLLAND 

v. 

 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

HE PHYSICAL THERAPY INSTITUTE, 
INC., SHANNON VISSMAN AND RYAN 
CHRISTOFF       

 No. 1515 WDA 2021 

 

Appellants 

Appeal from the Order Entered December 10, 2021 
In the Court of Common Pleas of Allegheny County  
Civil Division at No(s):  GD-18-011160 

EFORE:   OLSON, J., DUBOW, J., and COLINS, J. 

MEMORANDUM BY COLINS, J.:                            FILED: MARCH 17, 2023 

 

The Physical Therapy institute, Inc. (“PTI”), Shannon Vissman, and Ryan 

Christoff (collectively, “Appellants”) appeal from the six-part discovery order 

that,  inter  alia,  required  the  Appellants  to  provide  an  array  of  documents 

dealing  with 

financial  and 

investment-related  matters  as  well  as 

communications with counsel. On appeal, the Appellants chiefly contend that 

the lower court erred by not conducting an in camera review of the disputed 

documents prior to making its ruling. Moreover, the Appellants assert that the 

court committed various errors of law or abuses of discretion through its six 

discrete determinations. In response, in addition to substantively refuting the 

Appellants’ arguments, Appellee Glenn Holland argues that we should quash 

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 Retired Senior Judge assigned to the Superior Court. 

     

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this  appeal,  as  it  was  taken  from  a  non-appealable  interlocutory  order.  We 

quash in part, affirm in part, and remand this matter with instructions. 

 

Despite being in a pre-trial posture, this matter features a complicated 

factual  and  procedural  history.  As  best  can  be  gleaned  from  the  record,1 

Holland  has  filed  a  four-count  complaint  against  the  Appellants,  with  his 

amended complaint stating claims in breach of contract,2 breach of fiduciary 

duty, and unfair trade practices.3 Holland requests punitive damages at each 

claim.  

 

By  way  of  background,  PTI  is  a  Pennsylvania  corporation  that  owns 

physical  therapy  clinics  in  Western  Pennsylvania,  including  one  in  the 

Pennsylvania  city  of  Warrendale.  In  turn,  Vissman  and  Christoff  own  PTI. 

Meanwhile, Holland, a physical therapist and former salaried employee of PTI, 

worked as the Center Manager of PTI’s Warrendale location.  

 

Related  to  his  position  as  Center  Manager,  Holland  signed  an 

1 We note that, as it stands, there are discrepancies between the parties and 
the court as to several important dates and events, likely due to where this 
case presently falls within the civil litigation continuum. 

  Holland  maintains  that  the  Appellants  breached  both  an  employment 
agreement  and  a  partnership  agreement,  with  both  claims  emanating  from 
the same document. See Amended Complaint in Civil Action, at 6-7 (asserting 
breach  of  employment  agreement  against  PTI  and  breach  of  partnership 
agreement against Christoff and Vissman).  

  Although  not  specified  in  the  amended  complaint,  we  presume  Holland’s 
unfair  trade  practices  claim  is  pursuant  to  the  Pennsylvania  Unfair  Trade 
Practices and Consumer Protection Law (“UTPCPL”). See 73 P.S. §§ 201-1 et 
seq. 

  2

  3

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employment agreement with PTI in 2013. Pursuant to that agreement, while 

still receiving a salary, Holland was eligible for a management bonus that was 

the equivalent of forty-nine percent of the Warrendale location’s net income, 

as defined by the agreement. However, the agreement also required Holland 

to, inter alia, abide by PTI’s policies, maintain appropriate patient records, and 

promptly prepare and file the records of all professional services provided to 

patients.  The  agreement  further  contained  a  noncompete  clause  and 

prohibited him from obtaining a personal interest in, broadly, non-PTI physical 

therapy offices or practices within a fifteen-mile radius “of any Holland facility 

operated by PTI.” Employment Agreement, 1/9/13, at 4. 

 

The  agreement’s  Exhibit  B  specified  two  additional  ways  in  which 

Holland would be compensated as it pertained to future contributions to PTI. 

Specifically, as written: (1) Holland had “the option, upon mutual agreement 

of [Holland] and  PTI in writing …  to participate in  the funding of any  newly 

founded PTI facility,” id., at Ex. B, with compensation comparable to that of 

the Warrendale location; and (2) if Holland did not contribute capital, but had 

“material ongoing involvement in … a newly founded PTI facility, then upon 

mutual agreement of [Holland] and PTI in writing,” id., he “may be eligible for 

additional compensation of up to [twenty-five percent],” id., of that facility’s 

net income.  

 

According to the Appellants, in spring of 2018, Holland had conveyed to 

PTI  that  he  intended  to  open  a  new  non-PTI  facility  that  was  within  fifteen 

miles of the Warrendale location (identified as “Hopewell/Monaca”), which PTI 

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believed  violated  the  agreement’s  non-compete  clause.  Moreover,  PTI 

contends that around that same point in time, it started to receive numerous 

employee reports of Holland’s actions that PTI also deemed to be violative of 

the agreement, which included him allegedly editing employee time records 

and treating patients without proper record-keeping.  

 

That  same  year,  on  May  17,  2018,  PTI  terminated  Holland  for  cause, 

stating in the corresponding notice that Holland had been in willful breach of 

various aspects of the agreement and  had  habitually acted neglectful  in  his 

conduct.  Prior  to  that  decision,  PTI  retained  the  law  firm  of  Wilson  Sonsini 

Goodrich & Rosati (“Wilson Sonsini”) to explore the information that had been 

contained in the employee reports discussing Holland’s conduct.   

 

After  several  email  exchanges  between  Holland’s  counsel  and  an 

attorney at Wilson Sonsini, Holland filed the present lawsuit in August 2018. 

Correspondingly, the Appellants retained separate counsel and then filed an 

answer, new matter, and counterclaims.  

 

During  discovery,  Holland’s  counsel  deposed  Christoff.  At  that 

deposition,  Christoff  was  asked  various  questions  about  Wilson  Sonsini’s 

handling  of  the  investigation  into  Holland’s  actions  and  the  consequent 

employee  reporting  of  those  actions.  According  to  Christoff,  predicated  on 

what  was  uncovered  during  the  inquiry,  the  recommendation  from  Wilson 

Sonsini was that Holland should be terminated.  

 

Thereafter, Holland sought to discover the Appellants’ communications 

with  Wilson  Sonsini  under  the  belief  that  the  Appellants,  in  utilizing  Wilson 

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Sonini’s services, had put counsel’s advice at issue in this case. Holland then 

filed a motion to compel the Appellants to produce documents that had been 

withheld under claims of privilege and identified on a privilege log. This filing 

led to the court conducting an in camera review of four documents, deeming 

three  of  them  to  not  be  privileged  and  ordering  those  to  be  produced.  The 

fourth  document,  PTI’s  engagement  letter  with  Wilson  Sonsini,  was 

determined to be privileged.  

 

After  these  determinations,  Holland  issued  subpoenas,  seeking  both 

documents and testimony from Wilson Sonsini as well as two of its attorneys, 

Marina Tsatalis, Esq., and Stuart Williams, Esq., who had been involved in the 

employee-complaint 

investigation.  The  Appellants  challenged 

these 

subpoenas  pursuant  to  Pennsylvania  Rule  of  Civil  Procedure  4009.21, 

eventually also filing motions for protective orders to quash the subpoenas, 

objecting  on  the  bases  of  the  attorney-client  privilege  and  work-product 

doctrine. As indicated by the lower court: 

 

 
Holland  attempted  to  subpoena  records  from  Wilson  Sonsini 
because  a  principal  of  PTI  testified  late  in  the  case  that  Wilson 
Sonini told them before Glenn Holland was terminated that Glenn 
Holland had engaged in theft. [Plaintiff’s counsel] had notes from 
the  investigation.  Nothing  in  the  notes  concludes  that  [Holland] 
engaged in theft. [T]he agreement with PTI says [Holland] can’t 
be  terminated  for  theft  unless  he  is  convicted  of  it,  [a]nd  there 
hasn’t even been a prosecution for theft. At this time counsel for 
Wilson  Sonsini  alleged  his  clients  had  not  been  properly  served 
with a subpoena and therefore this issue was not properly before 
the  [c]ourt.  In  an  effort  to  “cut  to  the  chase”  the  [c]ourt  asked 
counsel  for  Wilson  Sonsini  if  he  had  the  authority  to  accept  the 
subpoena on behalf of his clients[.] Counsel informed the [c]ourt 
he did not have any such authority. Counsel for PTI informed the 

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[c]ourt it did not have any additional documents to produce other 
than the three already produced pursuant to the [c]ourt’s [o]rder. 
The  [c]ourt  then  recessed  the  hearing  to  allow  Wilson  Sonsini’s 
counsel to confer with his clients regarding acceptance of service 
and for PTI’s counsel to confirm all documents had been turned 
over. 
 

mmediately  upon  the  commencement  of  the  hearing  … 
Wilson Sonsini … said it did not have authorization to accept the 
subpoenas. … Counsel for PTI then informed the [c]ourt there was 
one  additional  document  that  had  not  been  produced  and  was 
withheld in error[.] PTI was directed to send the document to the 
[c]ourt for review. [At this time,] [c]ounsel for PTI informed the 
[c]ourt  its representation had  been  terminated and it would not 
be providing the fourth document to the [c]ourt[.] [N]ew counsel 
entered an appearance and agreed to review the document and 
provide it. The document was eventually produced[.] 
 

 [At a subsequent argument,] [t]he [c]ourt pointed out to 
counsel  [that]  Christoff  and  Vissman  had  already  testified  in 
depositions about asking their lawyers to perform an investigation 
which they then relied upon. 

  …

  I

rial  Court  Opinion,  4/12/22,  at  2-4  (record  citations  and  some  internal 

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quotation marks omitted). At or around this point, Holland also filed another 

motion  to  compel.  Eventually,  the  lower  court  expressly  denied  one  of  the 

Appellants’  motions  to  quash,  but  that  order  went  no  further  in  discussing 

document  production,  privileges,  or  the  other  subpoenas  that  had  been 

sought.  

The  subpoena  seeking  documents  from  Wilson  Sonsini  requested, 

without limitation, all documents exchanged between Wilson Sonsini and the 

Appellants  relating  in  any  way  to  Holland.  Wilson  Sonsini  responded  by 

asserting  attorney-client  privilege  and  the  work-product  doctrine,  indicating 

that  it  would  then  construct  a  privilege  log,  which  was  thereafter  produced 

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and  subsequently  amended.  Eventually,  293  pages  of  documents  were 

identified  as  responsive  to  Holland’s  subpoena,  whereafter  190  pages  were 

authorized to be produced and 103 were determined to fall under the auspices 

of  attorney-client  privilege  or  work-product.  Those  103  pages  are  all 

associated  with  events/dates  taking  place  after  Holland  filed  the  present 

lawsuit.  

As  further  discovery,  Holland’s  counsel  also  deposed  Vissman  in  his 

personal  capacity,4  which,  similar  to  the  Christoff  deposition,  inquired  into 

communications with Wilson Sonsini. In addition, Vissman was asked about 

his business interests in other states, with Baylife Physical Therapy (“Baylife”), 

which has clinics in Florida and Colorado, being specifically named as one of 

his interests. Notably, all of the Baylife clinics were managed out of the same 

address, the one utilized by PTI. In addition, Vissman indicated that a private 

equity group was the majority owner of Baylife and, too, that Wilson Sonsini 

had some level of ownership interest. 

Several  days  after  this  deposition,  Holland  filed  a  hybrid  motion  to 

compel  and  motion  for  sanctions.  After  Holland  filed  five  additional 

supplements  to  this  motion  and  oral  argument  was  heard,  the  court  issued 

the ultimate order giving rise to the current appeal. Therein, the court stated 

that:  

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4 Vissman had already been deposed in his capacity as corporate designee of 
PTI. 

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(1) [Appellants] shall provide complete responses to  [Holland’s] 
Amended  Requests 
for  Production  of  Documents  and 
Interrogatories Directed to [Appellants] on July 15, 2021; 

2) [Appellants] shall provide financial information for … any new 
clinics in Florida, Colorado or elsewhere – including Baylife, under 
the terms of the Court’s July 28, 2020 Order; 

3)  [Appellants]  shall  provide  all  documents  exchanged  with 
Wilson Sonsini regarding investment/ownership in clinics; 

4)  Wilson  Sonsini  shall  provide  the  documents  identified  in  its 
amended privilege log and all documents not previously provided; 

5) Shannon Vissman’s deposition shall be reconvened to testify 
about Wilson Sonsini, the advice it provided to him and PTI about 
Monaca/Hopewell,  and  the  investments  Wilson  Sonsini  made  in 
new clinics; 

  (

  (

  (

  (

  (

6) [Appellants] shall produce information about their personal net 
worth  and  financial  capacity  heretofore  withheld,  and  Shannon 
Vissman  shall  be  required  to  testify  about  how  he  paid  for  the 
Florida house he purchased in 2018. 

rder,  12/10/21,  at  1-2  (numbering  added).  The  court  justified  its 

  O

determination, in part, by illuminating that, based on the record, “the law firm 

which allegedly investigated and decided … Holland engaged in theft may have 

had a pecuniary interest in not having to share any ownership interest with … 

Holland and [further that] PTI has several ownership interests which were not 

previously disclosed in discovery.” Trial Court Opinion, 4/12/22, at 4. 

 

After  this  order  was  issued,  the  Appellants  filed  a  motion  for 

reconsideration,  but  that  motion  was  never  decided  by  the  lower  court. 

However,  the  Appellants  filed  a  timely  notice  of  appeal  from  the  discovery 

order, and the relevant parties have complied with their respective obligations 

J-A22039-22 

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under Pennsylvania Rule of Appellate Procedure 1925. Accordingly, this matter 

is ripe for disposition.  

 

On appeal, the Appellants present four questions: 

1.  Did the lower court err in compelling (1) Appellants’ lawyers to 
produce privileged documents, specifically in doing so without 
conducting in camera review; and (2) Vissman to testify about 
the advice his lawyer provided to him? 
 

2.  Did  the  lower  court  err  in  compelling  the  production  of 
information  regarding  the  Appellants’  personal  net  worth  as 
responsive to an alleged punitive damages claim and in doing 
so without setting any specific restrictions on that discovery? 
 

3.  Did  the  lower  court  err  in  compelling  Appellants  to  produce 
confidential financial records of non-party-owned entities? 
 

4.  Did  the  lower  court  err  in  compelling  the  production  of 
confidential  financial  records  that  Holland  never  requested 
during discovery? 

ppellants’ Brief, at 6-7. 

 
Preliminarily, we must address the arguments raised in Holland’s motion 

to  quash  filed  in  this  Court,5  as  questions  concerning  order  appealability 

implicate this Court’s jurisdiction. See Jacksonian v. Temple Univ. Health 

Sys.  Found.,  862  A.2d  1275,  1279  (Pa.  Super.  2004)  (citation  omitted).6 

____________________________________________ 

5 In response to Holland’s January 31, 2022 motion to quash, this Court issued 
a per curiam order denying his motion without prejudice “to raise before the 
Merits  Panel.”  Order,  3/17/22.  Holland  implicitly  renewed  his  motion  in  his 
appellee  brief  through  further  discussion  of  the  collateral  order  doctrine, 
identified infra. See Appellee’s Brief, at 2-9, 71, 77. 

 Despite the lower court’s order having six distinct components, for ease of 
disposition, we address Holland’s motion within the context of the questions 
the Appellants present in this appeal. 

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  A

 
 

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Holland asserts that we do not have jurisdiction because the appealed-from 

order is not final, see Pa.R.A.P. 341; Barak v. Karolizki, 196 A.3d 208, 215 

(Pa. Super. 2018) (establishing that an appeal, under normal circumstances, 

requires  a  final  order),  nor  one  that  is  interlocutory,  yet  appealable,  see 

Pa.R.A.P. 311 (by right); Pa.R.A.P. 1311 (by permission).  

 

Notwithstanding  those  general precepts, collateral orders that are not 

otherwise appealable may be appealed from if they satisfy the rigid dictates 

of  Rule  313.  See  Pa.R.A.P.  313(a)-(b)  (defining  what  is  known  as  the 

“collateral  order  doctrine”).  Manifesting  as  a  three-part  test,  an  appealable 

collateral order is one that: “1) is separable from and collateral to the main 

cause of action; 2) involves a right too important to be denied review; and 3) 

presents  a  question  that,  if  review  is  postponed  until  final  judgment  in  the 

case, the claim will be irreparably lost.” In re Bridgeport Fire Litigation, 51 

A.3d 224, 230 n.8 (Pa. Super. 2012) (citation omitted). If any one component 

of  that  test  is  not  satisfied,  we  have  no  jurisdiction  to  adjudicate  the 

corresponding appeal. See Spainer v. Freeh, 95 A.3d 342, 345 (Pa. Super. 

2014).  

 

By way of further elaboration: 

For the first prong of the analysis under Pa.R.A.P. 313(b), a court 
must  determine  whether  the  issue(s)  raised  in  the  order  are 
separable from the central issue of the ongoing litigation. Under 
the second prong, in order to be considered too important to be 
denied  review,  the  issue  presented  must  involve  rights  deeply 
rooted  in  public  policy  going  beyond  the  particular  litigation  at 
hand. An issue is important if the interests that would potentially 
go unprotected without immediate appellate review of that issue 

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are  significant  relative  to  the  efficiency  interests  sought  to  be 
advanced by the final judgment rule. Furthermore, with regard to 
the third prong of the analysis, our Supreme Court explained that 
whether a right is adequately vindicable or effectively reviewable, 
simply cannot be answered without a judgment about the value 
interests that would be lost through rigorous application of a final 
judgment requirement. 
 

Bogdan v. American Legion Post 153 Home Assoc., 257 A.3d 751, 755-

56 (Pa. Super. 2021) (citation omitted) (formatting altered). 

 

The Appellants’ first claim on appeal asserts that the court erred when 

it required the production of documents subject to privilege and work product 

concerns  and  contained  within  Wilson  Sonsini’s  privilege  log  and  further 

ordered Vissman to  be deposed  as to,  inter  alia, privileged matters.7 These 

two  contentions  correspond,  ordinally,  to  the  fourth  and  fifth  obligations 

contained in the at-issue order. See Order, 12/10/21, at 1-2. 

“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. v. Bank Fin. 

Servs. Grp., 143 A.3d 930, 936 (Pa. Super. 2016) (citations omitted).  

Significantly, Pennsylvania courts have held that discovery orders 
involving  potentially  confidential  and  privileged  materials  are 

____________________________________________ 

7 Pursuant to the order, Vissman also is required to testify as to “investments 
Wilson Sonsini made in new clinics,” Order, 12/10/21, at 2, which, given the 
remaining  components  of  the  order,  will  be  addressed  in  tandem  with 
Appellants’ issue number three.  

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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. 

erkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-24 (Pa. 

  B

Super.  2007);  see  also  Commonwealth  v.  Flor,  136  A.3d  150,  155  (Pa. 

2016)  (“[D]iscovery  orders  rejecting  claims  of  privilege  and  requiring 

disclosure constitute collateral orders that are immediately appealable under 

Rule 313.”); Gocial v. Independence Blue Cross, 827 A.2d 1216, 1220 (Pa. 

Super.  2003)  (“[O]ur  courts  held  that  [an]  appellant’s  colorable  claim  of 

attorney-client and attorney work-product privilege ma[ke] appellate review 

proper.”). 

Based  on  a  review  of  the  order  and  what  it  purports  to  allow  for 

discovery  in  its  fourth  and  fifth  items,  i.e.,  Wilson  Sonsini’s  client-related 

documents that were subsequently reduced to a privilege log as well as the 

required oral disclosure as to the advice of counsel given to Vissman by Wilson 

Sonsini,  the  Appellants  have  raised  a  colorable  claim  that  these  matters 

include  attorney-client  communications  or  protected  attorney  work  product. 

Accordingly,  the  Appellants have inherently satisfied  the  three-pronged test 

required  for  applicability  of  the  collateral  order  doctrine,8  and  we  have 

jurisdiction to adjudicate the Appellants’ substantive claim. 

____________________________________________ 

8  Separability  is  evident,  as  review  of  the  privileged  nature  of  these 
documents/prospective statements, at this juncture, is separable from what 
(Footnote Continued Next Page) 

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Substantively,  the  Appellants  seek,  prior  to  production,  in  camera 

review of the documents that potentially implicate the attorney-client privilege 

and work-product doctrine. As with all discovery-related issues, “in reviewing 

the propriety of a discovery order, our standard of review is whether the trial 

court committed an abuse of discretion. However, to the extent that we are 

faced  with  questions  of  law,  our  scope  of  review  is  plenary.”  Gormley  v. 

Edgar,  995  A.2d  1197,  1202  (Pa.  Super.2010),  citing  Berkeyheiser,  936 

A.2d at 1125. Moreover, “[t]he application of the attorney-client privilege and 

the  work  product  doctrine  are  questions  of  law  over  which  our  standard  of 

review  is  de  novo  and  our  scope  of  review  is  plenary.”  CLL  Acad.,  Inc.  v. 

Acad.  House  Council,  231  A.3d  884,  888  (Pa.  Super.  2020)  (citation 

omitted). 

The statute governing attorney-client privilege states that: “[i]n 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 

To  invoke  application  of  the  attorney-client  privilege,  four 
elements must be established: 

) The asserted holder of the privilege is or sought to become a 

  1

____________________________________________ 

trial by the client.” 42 Pa.C.S.A. § 5928. 

is fundamentally a breach of contract action; the privileges, themselves, are 
deeply  rooted  in  public  policy;  and  if  these  potentially  privileged  pieces  of 
information  were  disclosed,  there  would  be  no  effective  means  of  review 
available. 

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) The person to whom the communication was made is a member 

of the bar of a court, or his subordinate. 

) The communication relates to a fact of which the attorney was 
informed by his client, without the presence of strangers, for the 
purpose  of  securing  either  an  opinion  of  law,  legal  services  or 
assistance in a legal matter, and not for the purpose of committing 
a crime or tort. 

) The privilege has been claimed and is not waived by the client. 

  2

  3

  4

ord-Bey v. Pro. Anesthesia Servs. of N. Am., LLC, 229 A.3d 984, 990–

91 (Pa. Super. 2020) (cleaned up). 

 

To claim attorney-client privilege, the asserting party 

bears the initial burden of producing sufficient facts to show that 
he has properly invoked the privilege for the communications that 
he  has  declined  to  disclose.  This  often  entails  an  affidavit, 
statement, or testimony clarifying the circumstances under which 
the  communication  was  made.  The  trial  court  must  determine 
whether the facts support the asserted privilege. If the trial court 
finds  that  the  party  invoking  privilege  has  proffered  proof  to 
satisfy the test, the burden shifts to the party seeking disclosure 
to  set  forth  facts  showing  that  disclosure  should  be  compelled 
either  because  the  privilege  has  been  waived  or  because  an 
exception to the privilege applies. Absent a sufficient showing of 
facts to support the privilege, the burden does not shift and the 
communications are not protected. 

d., at 991. We also note that “[a] privilege log provides an acceptable format 

to  identify  documents,  the  applicable  privilege,  and  the  basis  upon  which 

privilege  is  claimed.”  Carlino  E.  Brandywine,  L.P.  v.  Brandywine  Vill. 

Assocs., 260 A.3d 179, 197 (Pa. Super. 2021) (footnote omitted). Although 

we have illuminated that attorney-client privilege can be waived by the client, 

we emphasize that, specifically, “[i]n-issue waiver occurs when the privilege-

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client. 

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holder asserts a claim or defense, and attempts to prove that claim or defense 

by  reference  to  the  otherwise  privileged  material.”  Commonwealth  v. 

Harris, 32 A.3d 243, 253 (Pa. 2011) (citation omitted) 

As  to  work-product  protections,  our  Rules  of  Civil  Procedure  exclude 

discovery that discloses “the mental impressions of a party’s attorney or his 

or her conclusions, opinions, memoranda, notes or summaries, legal research 

or legal theories.” Pa.R.C.P. 4003.3. 

Here,  despite  there  being  a  privilege  log,  the  court  found  that  the 

Appellants  necessarily  waived  any  privilege  to  communications  surrounding 

the investigation, as they testified that they relied upon the investigation of 

Wilson  Sonini  when  they  made  the  decision  to  fire  Holland.  See  Trial  Court 

Opinion, 4/12/22, at 5. In contrast, the Appellants indicate that “they never 

relied  on  Wilson  Sonsini’s  investigation  of  the  issues  raised  by  staff  to  fire 

Holland.”  Appellants’  Brief,  at  41  (writing,  further,  that  it  was  exclusively 

Christoff’s  testimony  at  issue,  not  Vissman’s,  and  that  “Christoff  merely 

answered the questions Holland’s attorney asked … with Christoff’s testimony 

in fact refuting Holland’s claimed reliance on advice of counsel[]”).9  

Upon our review, we find that the record remains unclear at this juncture 

____________________________________________ 

9  The  Appellants  also  distinguish  between  communications  they  had  with 
Wilson  Sonsini  prior  to  Holland  filing  the  current  lawsuit  and  the 
communications that transpired after that event, arguably for wholly litigation 
purposes. However, given our disposition of this issue, which compels remand, 
we need not delve into potential timing issues.  

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whether the Appellants intend to invoke the Wilson Sonsini investigation as a 

defense at trial. The court, in finding that the Appellants had waived attorney-

client  and  work-product  privileges  did  not  conduct  any  in  camera  review  of 

the  most  recent  round  of  ordered  documents,  despite  “having  already 

conducted an  in[]camera review once in this matter[.]”  Trial Court Opinion, 

4/12/22, at 7. While Christoff testified in his deposition about Wilson Sonsini’s 

advice vis-à-vis the termination of Holland’s employment, the Appellants did 

not raise this issue in their pleadings nor did they include a defense of reliance 

on the advice of counsel in their answer and new matter. 

Therefore,  in  light  of  this  ambiguity,  we  conclude  that  a  remand  is 

appropriate.  On  remand,  the  court  must  ascertain  whether  the  Appellants 

intend to utilize any of the “otherwise privileged material” contained in the at-

issue documents in order to establish a defense at trial or otherwise rely upon 

them at trial.10 If the Appellants are willing to stipulate that such documents 

will not ultimately come into contention or that none of counsel’s advice will 

become an issue at trial, then pursuant to Yocabet v. UPMC Presbyterian, 

119  A.3d  1012  (Pa.  Super.  2015),  the  court  should  thereafter  conduct  in 

camera review of the potentially privileged material and make corresponding 

determinations  as  to  whether  those  documents  are  discoverable  for  an 

____________________________________________ 

10  This  determination  would  apply  to  both  documents  contained  within  the 
privilege log and, too, Vissman’s compelled testimony addressing the advice 
that his lawyer provided to him.   
 

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unrelated reason. See id., at 1029; see also Berg v. Nationwide Mut. Ins. 

Co., 44 A.3d 1164, 1179 (Pa. Super. 2012) (“In camera review of disputed 

claims of privilege is often necessary and appropriate.”).  

If the Appellants are unwilling to stipulate, then the court is obligated to 

ascertain the extent the Appellants have invited discovery by placing attorney-

client  and  work-product-related  documents  and  communications  at  issue  in 

the  ultimate  resolution  of  the  case.  “The  scope  of  waiver  of  privileged 

materials must be determined by the extent to which the privileged material 

has been placed in issue. Because privilege waivers do not waive the attorney-

client  privilege  or  work  product  doctrine  as  to  all  material  counsel  may 

possess, our precedent requires an issue-specific analysis of waiver.” Carlino 

E. Brandywine, L.P., 260 A.3d at 204 (citation omitted). As relevant to this 

case,  such  an  issue-specific  waiver  analysis  would  require  the  court’s 

consideration  of,  for  example,  whether  communications  between  the 

Appellants and Wilson Sonsini predated Holland’s termination and thus could 

have influenced that decision. Regardless of whether waiver is found, the court 

should conduct an in camera review to ensure that documents which retain 

their privilege or are otherwise undiscoverable are not disseminated. 

The  Appellants  next  contest  whether  the  lower  court  should  have 

ordered  production  of  their  personal  net  worth  information.  See  Order, 

12/10/21, at 2 (obligating, inter alia, Vissman to testify as to how he paid for 

a  house  in  Florida).  Holland  apparently  seeks  such  information  to  pursue  a 

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punitive damages claim at trial. 

 

The plain text of the order requires the Appellants to produce “personal 

net worth” and “financial capacity” documents. Cases have found satisfaction 

of  the  collateral  order  doctrine  when  addressing  discovery  requests  for 

individuals’ “tax returns, bank records[,] and net worth documents[.]” See, 

e.g., Cabot Oil and Gas Corporation v. Speer (Cabot Oil), 241 A.3d 1191, 

1196  (Pa.  Super.  2020)  (internal  footnote  omitted).  In  finding  the  three 

prongs  to  be  met,  Cabot  Oil  held  that:  (1)  it  was  possible  to  address  the 

discoverability of these types of records without delving into, as it related to 

that  case,  the  underlying  Dragonetti  Act  violation  claim;  (2)  people  have  a 

significant privacy interest in their tax returns; and (3) irreparable harm would 

follow if review was postponed, given the aforesaid privacy interests at stake. 

Id., at 1197-98. 

 

We see no basis to conclude differently in the present matter. There is 

clear separability between the causes of action asserted in Holland’s complaint 

and  the  privacy  concerns  raised  on  appeal;  the  Appellants  have  a  deeply-

rooted  interest  in  maintaining  the  confidentiality  of  their  personal  financial 

information; and if such information were to be obtained through discovery, 

the  Appellants  would  be  without  clear  recourse  if  that  information  became 

publicly available. Therefore, the Appellants’ appeal as to this element of the 

trial court’s discovery order satisfies the collateral order doctrine. 

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4003.7.  

 

Under  Rule  4003.7,  “[a]  party  may  obtain  information  concerning  the 

wealth of a defendant in a claim for punitive damages only upon order of court 

setting forth appropriate restrictions as to the time of the discovery, the scope 

of the discovery, and the dissemination of the material discovered.” Pa.R.C.P. 

 

Distilled down, the Appellants claim that because this case is principally 

a breach of contract action, punitive damages are not available as a matter of 

law.  See  Appellants’  Brief,  at  46.  The  Appellants  also  assert  that  even  if 

Holland  were  ultimately  successful  at  trial  and  punitive  damages  were 

conceptually  available,  none  of  their  own  conduct  would  warrant  punitive 

damages.  Finally,  the  Appellants  believe  that  the  court  erred  by  “failing  to 

include any restrictions as to the timing, scope, or dissemination of net worth 

information.” Id.  

Our  caselaw  makes  clear  that  Holland’s  breach  of  contract  and  unfair 

trade practices claims do not allow for the recovery of punitive damages.  See 

Richards v. Ameriprise Fin., Inc., 152 A.3d 1027, 1035 (Pa. Super. 2016), 

citing McCauslin v. Reliance Fin. Co., 751 A.2d 683, 685 (Pa. Super. 2000) 

(stating  that  claims  under  the  UTPCPL  do  “not  ‘confer  a  right  to  [impose] 

punitive damages’”); DiGregorio v. Keystone Health Plan East, 840 A.2d 

361,  370  (Pa.  Super.  2003)  (en  banc)  (providing  that  a  litigant  cannot 

“recover  punitive  damages  for  an  action  solely  sounding  in  breach  of 

contract”).  However, our courts have permitted recovery of punitive damages 

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in cases involving breach of fiduciary duty claims.  See, e.g., Hutchison ex 

rel.  Hutchison  v.  Luddy,  870  A.2d  766,  773  (Pa.  2005)  (“[A]n  award  of 

punitive  damages  [is]  proper  for  claims  sounding  in  breach  of  fiduciary 

duty[.]”); B.G. Balmer & Co., Inc. v. Frank Crystal & Company, Inc., 148 

A.3d  454,  464-65  (Pa.  Super.  2016)  (finding  punitive  damages  appropriate 

where the underlying claim was breach of fiduciary duty); Viener v. Jacobs, 

834 A.2d 546, 561 (Pa. Super. 2003) (same). 

Nevertheless,  the  trial  court  has  not  ruled,  specifically,  as  to  the 

appropriateness or basis for permitting punitive damages, nor has the court 

indicated whether the breach of fiduciary duty claim could support a punitive 

damages award. While the Appellants state that Holland’s breach of fiduciary 

duty claim is derivative of his breach of contract claims, it would be premature 

to speculate whether the fiduciary duty issue will ultimately allow for Holland 

to seek punitive damages.  

On remand, the court must unequivocally determine whether allowing 

for punitive damage-related discovery is appropriate. First, as a preliminary 

consideration,  the court must ascertain if Holland’s  breach of fiduciary  duty 

claim, if successful at trial, could warrant punitive damages against any of the 

named Appellants. If it answers that inquiry, to any degree, in the affirmative, 

then, secondly, the court must impose restrictions on discovery pursuant to 

Rule  4003.7.  As  it  stands  now,  the  Appellants  are  obligated  to  “produce 

information about their personal net worth and financial capacity” without any 

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sort  of  limitation  whatsoever.  However,  the  court,  if  it  is  to  allow  for  such 

discovery, must put forth “appropriate restrictions” as to the time, scope, and 

dissemination of that information. Pa.R.C.P. 4003.7. 

In  the  Appellants’  third  question,  they  ask  whether  the  court  erred  in 

compelling them to produce confidential financial records of non-party-owned 

entities. Juxtaposed against the discovery order, the Appellants challenge its 

first  two  components  wherein  they  are  required  to:  (1)  provide  complete 

responses  to  Holland’s  amended  requests  for  production  of  documents  and 

interrogatories from July 15, 202111; and (2) provide financial information for 

new clinics, including Baylife, in accordance with a preexisting July 28, 2020 

order. See Order, 12/10/21, at 1. In summary, the Appellants contend that 

because  they  “have  already  produced  all  the  financial  information  of  every 

physical therapy clinic owned by … PTI … [the discovery order’s effect] is to 

compel … Vissman and Christoff to produce (1) financial information regarding 

personal investments and (2) financial information belonging to a non-party 

entity  owning  physical  therapy  clinics  that  are  not  owned  by  …  PTI.” 

Appellants’ Response in Opposition to [Holland’s] Motion To Quash Appeal, at 

16-17. 

____________________________________________ 

11 These requests require Vissman and Christoff to, inter alia, provide balance 
sheets, income statements, organizational documents, locational information, 
clinic names, and the ownership structures of any clinic opened since January 
1, 2015, in which they have any sort of financial or ownership interest. See 
Appellants’ Response in Opposition to [Holland’s] Motion To Quash Appeal, at 
16 n. 3 (citation omitted). 

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J-A22039-22 

 

It  is  not  entirely  clear  from  the  record  what  documents  Vissman  and 

Christoff  possess  as  it  pertains  to  both  their  own  personal  investments  and 

the  records  of  any  non-party  entity,  namely  Baylife.  To  the  extent  the 

Appellants  are  asserting  the  privacy  rights  of  a  non-party  to  the  present 

action,  we  emphasize  that  there  is  no  indication  Baylife,  or  any  other 

analogous entity, has moved to intervene in this case. As such, the Appellants 

“cannot act as their litigation proxies,” Cabot Oil, 241 A.3d at 1196, and are 

therefore foreclosed from overcoming the collateral order doctrine as to any 

obligation  imposed  on  a  non-party.  Cf.  Dibble  v.  Penn  State  Geisinger 

Clinic, Inc., 806 A.2d 866, 871 (Pa. Super. 2002) (establishing that business 

documents labeled “proprietary” and “confidential,” when considered in light 

of  the  facts  of  that  case,  satisfied  the  collateral  order  doctrine,  allowing  for 

review of the denial of a confidentiality order sought by the originator of those 

documents). 

 

As to those documents possessed by Vissman and Christoff that show 

their personal  investments in new clinics, those financial  documents  appear 

conceptually akin to bank records, which, as stated earlier, have been held to 

satisfy all three prongs of the collateral order doctrine.12 See Cabot Oil, 241 

A.3d  at  1197-98  (finding  that  bank  records  are  separable  if  capable  of 

independent analysis, privacy interests are inherent to those types of records, 

____________________________________________ 

12  We  note  that  there  is  a  dearth  of  case  law  as  it  pertains  to  investment-
related information within the context of the collateral order doctrine. 

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and that if review was postponed, any adjudication would be moot, given the 

pre-existing  disclosure).  Accordingly,  to  the  extent  the  Appellants  possess 

documents related to their personal investments that they are required to now 

disclose  pursuant  to  the  appealed-from  order,  they  have  met  the  collateral 

order doctrine’s tripartite test. 

 

In summarizing the Appellants’ argument, they contend that discovery 

as to their investments in non-PTI clinics is not relevant and hence should not 

have  been  allowed.  Based  on  the  language  contained  in  the  employment 

agreement,  Holland  has  no  entitlement  to  any  non-PTI  investment.  See 

Appellants’  Brief,  at  66.  In  effect,  “the  discovery  of  Baylife’s  confidential 

financial records [is] irrelevant and therefore improper.” Id., at 66-67.  

 

The court, however, found that the Appellants are attempting “to hide 

behind straw man arguments of corporate structure by claiming PTI does not 

own Baylife[.]” Trial Court Opinion, 4/12/22, at 9. The court continued: “[t]his 

record  is  replete  with  examples  put  forth  by  [Holland]  showing  there  is 

marginal (if not significant) interplay between PTI and its members and these 

new clinics. As minority owners[, the Appellants must] turn over the material 

within their possession and control.” Id.  

Pursuant  to  Rule  4003.1,  generally  speaking,  “a  party  may  obtain 

discovery regarding any matter, not privileged, which is relevant to the subject 

matter involved in the pending action[.]” Pa.R.C.P. 4003.1(a). The lower court 

found  that  such  information,  regarding  investments  in  non-PTI  clinics,  was 

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relevant  to  at  least  one  of  Holland’s  causes  of  action,  given  the  significant 

interplay between Baylife and the individual Appellants, which was uncovered 

during the course of this litigation. While the Appellants aver that discovery in 

this domain is irrelevant to Holland’s claims, they have not demonstrated to 

this  Court  that  the  trial  court  erred  or  abused  its  discretion  by  permitting 

discovery into the nexus between the Appellants and Baylife. Therefore, in the 

absence  of  any  reason  to  limit  discovery,  we  affirm  the  trial  court’s  order 

directing  the  production  of  documents  regarding  the  Appellants’  non-PTI 

investments, specifically in contemplation of the Baylife-related information.  

 

The  Appellants’  fourth  issue  maintains  that  the  trial  court  abused  its 

discretion in compelling financial records that Holland never requested during 

discovery. This contested part of the order requires the Appellants to “provide 

all documents exchanged with Wilson Sonsini regarding investment/ownership 

in clinics[.]” Order, 12/10/21, at 1.   

 

To  demonstrate  satisfaction  of  the  collateral  order  doctrine,  the 

Appellants  simply  assert  that  “an  appeal  of  this  ruling  plainly  satisfies  Rule 

313’s three-pronged test for appealing a collateral order” and that they “have 

privacy interests in their communications with their lawyers and their personal 

financial  information.”  Appellants’  Response  in  Opposition  to  [Holland’s] 

Motion To Quash Appeal, at 20-21. While the documents that the trial court 

ordered  to  be  produced  appear  to  target  Wilson  Sonsini’s  investment  and 

ownership interests in clinics, the  relevant portion of  the order  was broadly 

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phrased,  and  it  appears  that  it  could  also  potentially  sweep  in  legal  advice 

provided  by  Wilson  Sonsini  or  Vissman  and  Christoff’s  personal  financial 

information. Therefore, for the reasons set forth above, we conclude that the 

third  bullet-point  of  the  order  requiring  that  the  Appellants  “provide  all 

documents exchanged with Wilson Sonsini regarding investment/ownership in 

clinics” satisfies the collateral order doctrine. Order, 12/10/21, at 1.   

 

On  the  merits,  the  Appellants  argue,  first,  that  the  documents  were 

never requested by Holland and that the court could not compel discovery as 

to which the Appellants did not have the opportunity to object and, second, 

that the documents were irrelevant to Holland’s claims as Wilson Sonsini does 

not have an ownership interest in PTI, Holland’s former employer.   

 

As  explained  above,  however,  the  trial  court  rejected  the  Appellants’ 

efforts  to  curb  Holland’s  inquiry  into  the  individual  Appellants’  ownership  of 

non-PTI  clinics,  and  the  Appellants  have  not  demonstrated  grounds  for  this 

Court  to  overturn  the  lower  court’s  determination  that  such  topics  are  the 

proper subject of discovery. Nevertheless, we acknowledge that the discovery 

order  for  documents  concerning  Wilson  Sonsini’s  investments  in  non-PTI 

clinics  may  relate  to  the  discovery  ordered  concerning  the 

firm’s 

recommendation  that  Holland  be  fired;  as  we  have  remanded  on  the  latter 

issue,  remand  also  is  necessary  to  allow  the  trial  court  to  reassess  the 

discovery that should be authorized concerning Wilson Sonsini’s investments. 

Moreover, we agree with the Appellants that they should have the opportunity 

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so. 

to object to a discovery request prior to being compelled by court order to do 

Accordingly, we remand for the  trial court to determine the  continued 

relevance  of  Wilson  Sonsini’s  investments  in  clinics  co-owned  with  the 

Appellants, permit the Appellants to raise objections to such discovery based 

upon  questions  of  attorney-client  privilege,  conduct  an  in  camera  review  of 

documents that are claimed to be privileged prior to production, and assess 

whether any requested documents would touch upon the individual Appellants’ 

personal financial information.   

 

In summary, we quash this appeal in  part. We  affirm the trial court’s 

December 10, 2021 order in part, and we remand, consistent with the dictates 

of this memorandum, for the court to more thoroughly explore the attorney-

client privilege and work-product doctrine issues identified herein and to more 

fully refine the scope of punitive damages discovery, should the court deem 

that such discovery is necessary.  

Appeal  quashed  in  part.  Order  affirmed  in  part.  Case  remanded. 

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Jurisdiction relinquished. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate:  3/17/2023    

 

    J

  D