J-A05001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEONARD N. HUBBARD,                    :   IN THE SUPERIOR COURT OF
INDIVIDUALLY AND ON BEHALF OF          :        PENNSYLVANIA
GRAND NEGZ, INC., A                    :
PENNSYLVANIA CORPORATION               :
                                       :
                                       :
            v.                         :
                                       :
                                       :   No. 2443 EDA 2017
SHAWN GEE; SPORTS                      :
ENTERTAINMENT FINANCIAL GROUP,         :
INC, A PENNSYLVANIA                    :
CORPORATION; AHMIR THOMPSON;           :
TARIK TROTTER; GRAND NEGAZ,            :
INC., A PENNSYLVANIA                   :
CORPORATION; OKAY TOURS, LLC, A        :
PENNSYLVANIA LIMITED LIABILITY         :
COMPANY; GRAND WIZARDS, LLC, A         :
PENNSYLVANIA LIMITED LIABILITY         :
COMPANY; AND THE ROOTS ON              :
TOUR, INC., A PENNSYLVANIA             :
CORPORATION                            :
                                       :
                  Appellants           :

                Appeal from the Order Dated June 21, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                  No(s): January Term, 2016 No. 003135


BEFORE:   DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                          FILED MARCH 27, 2018

     Appellants, Shawn Gee, Sports and Entertainment Group, Inc., Ahmir

Thompson, Tarik Trotter, Grand Negaz, Inc. (“GNI”), Grand Wizards, LLC,

Okay Tours, LLC, and The Roots on Tour, Inc., appeal from the June 21,

2017 Order compelling Appellants Thompson and Trotter to produce their

personal tax returns. We quash this appeal as interlocutory.

____________________________________
* Former Justice specially assigned to the Superior Court.
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       The relevant facts are, briefly, as follows.                Appellee Leonard N.

Hubbard is a former member of the band The Roots and a minority

shareholder in Appellants Okay Tours, Grand Wizards, and GNI, the close

corporation that owns the trademarked name “The Roots.”                          Appellants

Thompson and Trotter are the majority shareholders in those entities and

current members of The Roots.

       Appellee filed a Complaint against Appellants on January 27, 2016, an

Amended Complaint on March 21, 2016, and a Second Amended Complaint

on April 11, 2016, claiming, inter alia, that Appellants Thompson and Trotter

have permitted the use of “The Roots” trademark without compensation to

Appellee    through     the   corporate        entities   in   which   he   is   a   minority

shareholder.1

       On January 20, 2017, Appellee served Appellants with a Second

Request for Production of Documents seeking, inter alia, the personal tax

returns of Appellants Thompson and Trotter.                     On February 17, 2017,

Appellants Thompson and Trotter filed an objection to the discovery request,

asserting that their personal tax returns were irrelevant to Appellee’s claims.

The trial court initially sustained Appellants’ objection; however, on May 15,
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1The claims asserted by Appellee against Appellants include: (1) Fraudulent
Transfer;   (2)    Breach    of   Fiduciary   Duty;   (3)   Appointment    of
Custodian/Receiver; (4) Appointment of Trustee; (5) Shareholder Derivative
Action; (6) Civil Conspiracy; (7) Constructive Fraud; (8) Access to Corporate
Records; and (9) Access to Company Records. See Second Amended
Complaint, 4/11/16, at 19-35.



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2017, following the April 7, 2017 deposition of Appellant Gee, as designee of

the corporate Appellants, Appellee filed a Motion to Revise Limits Placed on

Discovery and a Motion to Overrule Objections to Second Request for

Production of Documents.

     A discovery master heard argument on Appellee’s Motions. On June

21, 2017, the master issued a recommendation that the court compel the

production of Appellants’ tax returns, which the trial court adopted that

same day. This appeal followed.

     Appellants raise the following four issues on appeal:

     1. Is the June 21, 2107 Order a collateral order subject to
        immediate appellate review where (a) the discovery issues
        within the Order can be addressed without an analysis of the
        underlying claims, (b) Pennsylvania law treats tax returns as
        confidential communications, the disclosure of which involves
        rights deeply rooted in public policy, and (c)[Appellants’]
        claim would be irreparably lost because once the material are
        divulged, the disclosure cannot be undone?

     2. Is the June 21, 2017 Order contradictory to the trial court’s
        previous determination, which prevented [Appellee] from
        seeking the production of personal information from Mr.
        Thompson or Mr. Trotter absent a stronger, separate basis for
        needing the information apart from identifying revenue
        streams associated with the trademark “The Roots?”

     3. Did the trial court abuse its discretion when it held that
        [Appellee] sufficiently established that Mr. Thompson’s and
        Mr. Trotter’s federal and state tax returns are relevant
        because the tax returns are necessary to identify revenue
        received associated with the trademark “The Roots” and/or
        the value of such trademark?

     4. Did the trial court abuse its discretion when it held that a
        compelling need for the disclosure of the information
        contained within Mr. Thompson’s and Mr. Trotter’s federal and


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          state tax returns exists because the information contained
          therein is not available elsewhere?

Appellants’ Brief at 5.

       Before we address the merits of Appellants’ claims, we must determine

whether the trial court’s order is appealable. In re Miscin, 885 A.2d 558,

560-61 (Pa. Super. 2005).          “The question of the appealability of an order

goes directly to the jurisdiction of the Court asked to review the order.”

Moyer v. Gresh, 904 A.2d 958, 963 (Pa. Super. 2006) (citation and

quotation marks omitted).

       Generally, “unless otherwise permitted by statute, only appeals from

final orders are subject to appellate review.”       Commonwealth v. Sartin,

708 A.2d 121, 122 (Pa. Super. 1998). In relevant part, Pennsylvania Rule of

Appellate Procedure 341 defines a “final order” as any order that “disposes

of all claims and of all parties.” Pa.R.A.P. 341(b)(1).2

       The discovery Order at issue here is not a final order as it does not

dispose of all claims and of all parties, nor is it appealable as of right

pursuant to Pa.R.A.P. 311.3 Appellants did not ask for or receive permission


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2Rule 341 also defines a “final order” as any order “entered as a final order
pursuant to [Pa.R.A.P. 341(c)].” Pa.R.A.P. 341(b)(3).

3 Pa.R.A.P. 311 enumerates those kinds of orders that are, despite being
interlocutory, are appealable as of right. Pa.R.A.P. 311. Discovery orders
are not included in the enumeration of orders recognized as interlocutory but
appealable as of right.




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to appeal the Order pursuant to Pa.R.A.P. 312.4 Thus, the question before

this Court is whether the Order in this case is appealable under the collateral

order doctrine. See Pa.R.A.P. 313.

        Pennsylvania Rule of Appellate Procedure 313 defines a collateral order

as 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); Pa.R.A.P. 313(b). Our Supreme Court has

emphasized that:

        the collateral order doctrine is a specialized, practical [exception
        to] the general rule that only final orders are appealable as of
        right. Thus, Rule 313 must be interpreted narrowly, and the
        requirements for an appealable collateral order remain stringent
        in order to prevent undue corrosion of the final order rule. To
        that end, each prong of the collateral order doctrine must be
        clearly present before an order may be considered collateral.

Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003) (internal citations omitted).

        “A discovery order is collateral only when it is separate and distinct

from the underlying cause of action.” T.M. v. Elwyn, Inc., 950 A.2d 1050,

1056 (Pa. Super. 2008) (citing Feldman v. Ide, 915 A.2d 1208, 1211 (Pa.

Super. 2007)). An order is “separable” from the main cause of action if it is

capable of review without considering the underlying merits of the case.

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4   Pa.R.A.P. 312 provides for appeals from interlocutory orders by permission.



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See Ben v. Schwartz, 729 A.2d 547, 551-52 (Pa. 1999) (concluding that

the Bureau of Professional and Occupational Affairs’ claims of privilege with

respect to its investigative file were analytically separate from the underlying

claim of dental malpractice).           Our Supreme Court has explained that,

“although [the Supreme Court will] tolerate a degree of interrelatedness

between merits issues and the question sought to be raised in the

interlocutory appeal, the claim must nevertheless be conceptually distinct

from the merits of plaintiff’s claim.”         Commonwealth v. Blystone, 119

A.3d 306, 312 (Pa. 2015) (internal quotations and citations omitted).

       In support of their position that the instant discovery order is a

collateral order subject to our review, Appellants baldly assert that

disclosure of their personal state and federal tax returns “will not shed any

light on [Appellee’s] entitlement to any monies” from Appellants. Appellants’

Brief at 26.    Appellants also object to discovery of the tax returns on the

basis that “their tax returns [ ] contain confidential, proprietary information

completely unrelated to the instant action.” Id. at 29.5

       Appellee argues that an assessment of the relevance of Appellants’ tax

returns requires an analysis of the merits of the underlying dispute, and,


____________________________________________


5 Appellants do not, however, assert that their personal tax returns are
privileged. See Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1258 (Pa.
Super. 2011) (noting that, “[g]enerally, discovery orders involving
purportedly privileged material are appealable” under the collateral order
doctrine).



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thus, the Order compelling their production is not separable from and

collateral to the main cause of action.

      As part of his Complaint, Appellee claimed that Appellants Thompson

and Trotter have improperly used the trademark “The Roots” as their

personal property, when it is actually corporate property belonging to GNI,

in which Appellee is a minority shareholder. Appellee avers that a valuation

of GNI’s corporate asset—“The Roots” trademark—is essential to establishing

the damages to which he is entitled. In order to establish the value of the

trademark and degree to which the revenue stream from it has been flowing

to Appellants Thompson and Trotter personally, Appellee asserts that

Appellants Thompson and Trotter’s disclosure of their personal income tax

returns is necessary.

      The trial court concluded that this Court should quash Appellant’s

because the discovery order constitutes an interlocutory order. Trial Ct. Op.,

11/03/17, at 1. We agree. Our review indicates that an assessment of the

relevance of Appellants’ tax returns would, as Appellee argues, require an

analysis of the merits of the underlying dispute. Thus, we cannot conclude

the Order is separable from and collateral to the main cause of action.

      Because Appellants have failed to meet the first element of the

collateral order doctrine, we quash this appeal as interlocutory.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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