Thackray-Tadley, C. v. WTA Real Estate

J-A01027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROLE THACKRAY-TADLEY AND : IN THE SUPERIOR COURT OF
WALTER THACKRAY : PENNSYLVANIA
:
Appellants :
:
v. :
:
WTA REAL ESTATE MANAGEMENT :
COMPANY, WOODHAVEN : No. 1664 EDA 2022
INVESTMENT TRUST COMPANY, :
THACKRAY, INC., SOUTH JERSEY :
EQUIPMENT RENTAL AND REPAIR, :
INC., ORTHODOX STREET :
PROPERTIES, LLC, JAMES THACKRAY, :
COMLY STREET, LLC, CHARTER ROAD :
REALTY, LLC, BUENA BUSINESS :
PARK, LLC AND 7777 BREWSTER, LLC :
______________________________ :
CAROLE THACKRAY-TADLEY AND :
WALTER THACKRAY :
:
Appellants :
:
v. :
:
JAMES THACKRAY, WTA REAL ESTATE :
MANAGEMENT COMPANY, :
WOODHAVEN INVESTMENT TRUST :
COMPANY, THACKRAY, INC., SOUTH :
JERSEY EQUIPMENT RENTAL AND :
REPAIR, INC., ORTHODOX STREET
PROPERTIES, LLC, COMLY STREET,
LLC, CHARTER ROAD REALTY, LLC,
BUENA BUSINESS PARK, LLC AND
7777 BREWSTER, LLC
Appeal from the Order Entered April 26, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200500722,
210202061
J-A01027-23
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 16, 2023
Appellants Carole Thackray-Tadley and Walter Thackray appeal from the
order granting the motion to compel filed by Appellee WTA Real Estate
Management Co., et al (collectively Appellees). Appellants argue that the trial
court erred in granting Appellees’ motion to compel discovery because there
are alternative sources for the information sought and the order in question
failed to adequately protect Appellants’ privacy rights. Following our review,
we vacate and remand for further proceedings.
The trial court summarized the underlying facts of this matter as follows:
Thackray Crane Rental (“TCR”) is a family-owned business that
operates a crane rental company. TCR made investments in
commercial properties for the purposes of storing its equipment
and created single purpose entities to hold title to the properties
with TCR as the tenant. [Appellants], percentage owners of []
TCR and the single purpose entities, bring case captioned
Thackray et. al. v. WTA Real Estate Management, et. al.,
2005-722 to dissolve [Appellees,] WTA Real Estate Management
Realty, LLC (“WTA”) and Orthodox Street Properties, LLC (“OSP”)
alleging breaches of fiduciary duty, oppression, illegality,
mismanagement, incompetence, disregard for affairs and
corporate formalities, failing to act in the best interests of the
companies and owners and failing to fulfill the entities stated
purpose. Additionally, [Appellants] bring case captioned
Thackray et. al. v. Thackray, et. al., 2102-2061 against their
four siblings and entities alleging breach of contract, breach of
fiduciary duty, shareholder oppression, illegality,
mismanagement, and disregard for corporate form.
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In these actions, [Appellants] alleged that a 1033 Exchange[1]
made in connection with a condemnation of property owned by
OSP by the city of Philadelphia in 2012 is flawed. In discovery,
[Appellees] propounded discovery on [Appellants] seeking copies
of their personal income tax returns for the years 2012, 2015[,]
and 2018, and any other year in which [Appellants] made any
reports relating to the condemnation and/or 1033 Exchange. The
production of [Appellants’] 2012, 2015[,] and 2018 tax returns
was the subject of prior discovery practice as evidenced by this
court’s orders dated April 14, 2021, July 21, 2021, and November
16, 2021.
On December 21, 2021, [Appellants] served supplemental
responses and objections to [Appellees’] first set of requests for
production of documents and objected to producing the tax
returns for [Appellants] for the years 2012, 2015[,] and 2018 on
the grounds that the requests sought “confidential, personal,
financial information.” On March 25, 2022, [Appellees] filed a
motion to compel the production of the tax returns and requested
sanctions. [Appellants] filed a response in opposition and on April
26, 2022, the court heard oral argument. After hearing the
parties’ arguments and reviewing the parties’ papers, the court on
April 26, 2022[,] granted [Appellees’] motion to compel and
ordered [Appellants] to provide their income tax returns for the
years 2012, 2015[,] and 2018 within ten days of docketing the
order. Additionally, the court ordered that [Appellants] provide
all tax information related to reporting to the IRS and ordered that
all production was confidential and for attorneys’ eyes only.
Trial Ct. Op., 8/15/22, at 2-3 (footnotes omitted).
____________________________________________
1 The term “1033 Exchange” refers to an exchange of property under Section
1033 of the Internal Revenue Code. See 26 U.S.C. § 1033. Under certain
circumstances, Section 1033 allows taxpayers to defer tax liability on a
property that is involuntarily converted due to destruction or loss of the
property through casualty, theft, or condemnation action pursuant to
government powers of eminent domain, and the resulting compensation from
such destruction or condemnation. See 26 U.S.C. § 1033(a).
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Appellants subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellants’ claims.
On appeal, Appellants raise the following issues:
1. Whether the trial court erred in entering an order compelling
the production of personal tax returns where the information
sought is available from other sources, including deposition?
2. Whether the trial court erred in entering an order which
compels the production of individuals’ tax returns and other tax
information but allows opposing counsel to use those tax
returns in separate actions against the individuals and in other
business disputes against the individuals?
Appellants’ Brief at 9.
Before addressing Appellants’ claims, we must determine whether the
trial court’s discovery order is appealable. It is well settled that questions
concerning the appealability of an order implicate our jurisdiction. See
Jacksonian v. Temple Univ. Health Sys. Found., 862 A.2d 1275, 1279
(Pa. Super. 2004). Generally, an appeal to our Court lies only from a final
order. See Barak v. Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018); see
also 42 Pa.C.S. § 742). A final order is any order that “disposes of all claims
and of all parties[.]” Pa.R.A.P. 341(b)(1). “Generally, discovery orders are
deemed interlocutory and not immediately appealable, because they do not
dispose of the litigation.” McIlmail v. Archdiocese of Phila., 189 A.3d
1100, 1104 (Pa. Super. 2018).
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However, an order is appealable if it satisfies the requirements for an
appealable collateral order under Pa.R.A.P. 313. This Court has held that the
collateral order doctrine applies when an order “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). “Absent the satisfaction of all three prongs of the collateral order
test, this Court has no jurisdiction to consider an appeal of an otherwise non-
final order.” Spanier v. Freeh, 95 A.3d 342, 345 (Pa. Super. 2014) (citation
omitted).
Separable Claim
“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.” Bogdan v. American Legion Post
153 Home Assoc., 257 A.3d 751, 755 (Pa. Super. 2021) (citation omitted).
“[I]f the resolution of an issue concerning a challenged trial court order can
be achieved independent from an analysis of the merits of the underlying
dispute, then the order is separable for purposes of determining whether the
order is a collateral order pursuant to Rule 313.” Commonwealth v.
Kennedy, 876 A.2d 939, 943 (Pa. 2005) (citations omitted).
Here, the trial court’s discovery order is separable from the main cause
of action because it is possible to address the discoverability of Appellants’
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individual tax returns without analyzing the parties’ underlying claims
regarding the dissolution of the single-purpose entities, Appellees’ alleged
breach of fiduciary duty, or the validity of the 1033 property exchange by OSP.
See Kennedy, 876 A.2d at 943. Therefore, we conclude that the order
compelling Appellants to produce their individual tax returns is separable from
and collateral to the underlying cause of action. See Bogdan, 257 A.3d at
755. Accordingly, the order satisfies the first prong, and we proceed to the
second part of the test.
Important Right
“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.” Bogdan, 257 A.3d at
755 (citation omitted). Further, this Court has explained that “[a]n issue is
important if the interests that would potentially go unprotected without
immediate appellate review of that issue are significant relative to the
efficiency interests sought to be advanced by the final judgment rule.” Id.
(citation omitted).
Here, we conclude that Appellants fulfill the second prong, importance,
because they have a significant privacy interest in their individual tax returns.
See Cabot Oil & Gas Corp. v. Speer, 241 A.3d 1191, 1197 (Pa. Super.
2020) (concluding that a discovery order met the importance prong of the
collateral order test because the defendants had “a significant privacy interest
in their tax returns” (citations omitted)); Dougherty v. Heller, 138 A.3d 611,
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629 n.10 (Pa. 2016) (per curiam) (reiterating that individuals have “privacy
interest in information contained in federal tax returns. . . . Such information
is made confidential per federal statute” (citations omitted)); J.S. v. Whetzel,
860 A.2d 1112, 1117 (Pa. Super. 2004) (finding that a defense witness’s
privacy interest in the information contained in federal 1099 tax forms raised
a “sufficiently important public policy concern” for purposes of the collateral
order doctrine). Therefore, we will proceed to the third part of the collateral
order test.
Irreparable Harm
The third prong of the collateral order test concerns “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, 257 A.3d at
756 (citation omitted).
Appellants meet the third prong, irreparable harm, because Appellants’
privacy rights in their individual tax returns will be irreparably lost if review of
this question is postponed until final judgment in this case. See Linde v.
Linde, 222 A.3d 776, 786 (Pa. Super. 2019) (concluding that the discovery
order met the third prong of the collateral order doctrine because, “once [the
defendants’] personal financial information has been disclosed to [the
plaintiff], [the defendants’] privacy interests in that information will have been
lost – and the action cannot be undone” (citation omitted)). Therefore, we
conclude that the trial court’s discovery order, directing Appellants to produce
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their individual tax returns, is appealable under the collateral order doctrine.
See Bogdan, 257 A.3d at 755-56. Accordingly, we have jurisdiction to
consider Appellant’s claims on appeal.
Substantive Claims
Both of Appellant’s claims challenge the trial court’s discovery order.2
Specifically, Appellants argue that the trial court erred in compelling the
production of personal tax returns where the information is available from
other sources. Appellants’ Brief at 4-7. Further, Appellants contend that the
trial court’s order failed to adequately protect Appellants’ privacy rights and
allows Appellees to use those records in separate actions unrelated to the
instant litigation. Id.
“In reviewing the propriety of a discovery order, we determine whether
the trial court committed an abuse of discretion and, to the extent that we are
faced with questions of law, our scope of review is plenary.” Pasquini v.
Fairmount Behav. Health Sys., 230 A.3d 1190, 1194 (Pa. Super. 2020)
(citation omitted).
____________________________________________
2 Appellees argue that Appellants waived their challenges to the trial court’s
discovery order because Appellants raised these claims for the first time in
their motion for reconsideration. See Appellees’ Brief at 20-21. However,
the record reflects that Appellants challenged the discoverability of their tax
returns in their response to Appellees’ motion to compel. See Appellants’
Resp. in Opp’n to Appellees’ Mot. to Compel, 4/8/22. Additionally, because
the trial court did not issue a ruling at the hearing on Appellees’ motion,
Appellants had no basis to object to the discovery order at that time. See
N.T. Hr’g, 4/26/22, at 14. Therefore, we conclude that Appellants preserved
these issues by raising them before the trial court and in their motion for
reconsideration after the trial court issued the order granting Appellees’
motion.
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Rule 4003.1 of the Pennsylvania Rules of Civil Procedure provides that,
in general, “a party may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action[.]”
Pa.R.Civ.P. 4003.1(a). Although parties have a significant privacy interest in
their individual tax returns, this Court has stated that “the right to privacy . .
. is not an unqualified one; it must be balanced against weighty competing
private and state interests.” Cabot Oil, 241 A.3d at 1200 (citation and
quotation marks omitted). Further, this Court has explained that trial courts
“can and should craft discovery orders that strike a proper balance between
[a defendant’s] privacy interests and the rights of other parties.” Id.
Here, the trial court addressed the disclosure of Appellants’ individual
tax returns follows:
As it relates to tax returns, public policy considers tax returns as
confidential communications between the taxpayer and the
government and thus favors their nondisclosure. Pennsylvania
courts have outlined a two-part test to determine the
discoverability of tax returns. The tax returns must be (1)
relevant; and (2) a compelling need for such documentation must
exist because the information is not available elsewhere. Here,
[Appellants’] 2012, 2015[,] and 2018 tax returns are relevant and
are not available elsewhere except from [Appellants].
The tax returns ordered to be produced are [Appellants’] tax
returns for the years 2012, 2015, and 2018, the relevant years
associated with the 1033 Exchange as alleged in the complaints
in this consolidated action. . . . [Appellants] allege that the
transaction is flawed and by inference any benefits received by
the members of OSP, [Appellants] and [Appellees], because of the
1033 Exchange are improper. While [Appellants] claim
[Appellees] are already in possession of [information concerning]
whether [Appellants] received a benefit from the 1033 Exchange
since [Appellees] prepared the [K-1 tax forms] for [Appellants],
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[Appellees] do not know what [Appellants] reported to the IRS.
In fact, [Appellants] deny they received any benefit from the 1033
Exchange. Whether [Appellants] received a benefit from the 1033
Exchange is relevant and the information is only available in
[Appellants’] 2012, 2015[,] and 2018 tax returns.
Trial Ct. Op. at 5-6.
Following our review of the record, we conclude that the trial court
abused its discretion in ordering Appellants to produce their full individual tax
returns for 2012, 2015, and 2018. See Pasquini, 230 A.3d at 1194. First,
we disagree with the trial court’s conclusion that Appellants’ tax returns were
the only source for information about the benefit Appellants received from the
1033 Exchange. Indeed, Appellees concede in their brief that such information
could be obtained through alternative sources. See Appellees’ Brief at 17-18.
Additionally, although portions of Appellants’ tax returns may have contained
information concerning the 1033 Exchange, the trial court did not appear to
weigh Appellees’ right to that information with Appellants’ privacy interest in
their personal tax returns. See Cabot Oil, 241 A.3d at 1200. Indeed, the
trial court could have structured the discovery order to provide Appellees with
access to relevant information without undermining Appellants’ right to
privacy. See id. For these reasons, we vacate the trial court’s discovery order
and remand for further proceedings.
On remand, we direct the trial court to fashion an appropriate discovery
order which will permit Appellees to obtain information specific to the 1033
Exchange, but which will protect the confidentiality of unrelated information
contained in Appellants’ personal tax returns. In crafting its discovery order,
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the trial court shall consider whether information concerning the 1033
Exchange may be obtained from sources other than Appellants’ individual tax
returns. If the trial court concludes that it is necessary for Appellants to
produce their individual tax returns, the trial court shall determine the method
and manner in which Appellants’ confidential information will be excised or
redacted from the documents prior to production.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2023
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