J-A12005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELVIN W. SMITH BUILDING 

SYSTEMS, LLC 

Appellant

v.

BEDFORD COUNTY HUMANE 

SOCIETY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1158 WDA 2021

Appeal from the Order Entered September 3, 2021

In the Court of Common Pleas of Bedford County

Civil Division at 1030-2018

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: MAY 20, 2022

Melvin W. Smith Building Systems, LLC (Appellant), appeals from the 

order granting the motion to compel discovery filed by Bedford County 

Humane Society (BCHS), in this action involving breach of contract. Upon 

review, we remand for the trial court to file a supplemental Pa.R.A.P. 1925(a) 

opinion.

On October 2, 2018, Appellant filed a complaint against BCHS pleading 

breach of contract, unjust enrichment, and conversion. Appellant claimed it 

entered into a contract with BCHS for Appellant to construct a building, and 

alleged BCHS breached the contract prior to Appellant’s completion of the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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building, causing Appellant to incur monetary damages of approximately 

$80,000. On October 22, 2018, BCHS filed an answer, new matter and 

counterclaim.

Following proceedings not relevant to this appeal, on March 8, 2021, 

BCHS sent Appellant interrogatories and a request for production of 

documents.1 BCHS asked Appellant to produce, in pertinent part, “a complete 

copy of all business and personal tax returns, with all attachments and 

schedules, including federal, state and local [taxes], you filed for every year 

in which you worked on this project.”

2

Interrogatories and Request for 

Production of Documents, 3/8/21, at 15 (unnumbered).

Appellant filed an answer and objections to BCHS’s discovery requests

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1 This document is not in the certified record. However, BCHS attached a copy 

of the interrogatories and request for production of documents to an 

application BCHS filed with this Court. See Application to Quash Appeal, 

11/19/21, Ex. B; see also N.T. (motion to compel discovery hearing), 

8/24/21, at 3 (counsel submitting the March 8, 2021, document to the court).

2 BCHS sought the personal tax returns of Appellant’s owner, Melvin W. Smith

(Smith or Mr. Smith). Smith is not a party to this action.
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on May 13, 2021.

3 Appellant objected to BCHS’s request for tax documents, 

asserting: 

This request is not relevant to any claim or defense and therefore 

[is] beyond the scope of permissible discovery. The request also 

seeks information that is protected information (bank account 

numbers, balances, social security numbers). 

Appellant’s Answer and Objections, 5/13/21, at ¶ 14 (see Appellant’s 

Reproduced Record at 56(a)).

On June 7, 2021, BCHS filed a motion to compel discovery. Regarding 

BCHS’s request for documents related to Appellant’s “business and personal 

tax returns,” BCHS asserted:

The documents requested are related to the damages claimed by 

[Appellant] and are therefore relevant. The requests do not ask 

for sensitive information and any such information that exists on 

the documents could be redacted.

Motion to Compel Discovery, 6/7/21, at ¶ 13.

The trial court held a hearing on August 24, 2021. By order entered

September 3, 2021 (Discovery Order), the trial court granted BCHS’s motion 

to compel discovery. Regarding BCHS’s request for Appellant’s and Smith’s 

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3 The answer and objections is not in the certified record. However, Appellant 

included it in the reproduced record. But see Commonwealth v.

Bracalielly, 658 A.2d 755, 763 (Pa. 1995) (“appellate courts may only

consider facts which have been duly certified in the record on appeal. An item

does not become part of the certified record by simply copying it and including

it in the reproduced record.” (citations omitted)); see also Twp. of N. 

Fayette v. Guyaux, 992 A.2d 904, 905 n.2 (Pa. Super. 2010) (“It is the 

obligation of the appellant to make sure that the record forwarded to an 

appellate court contains those documents necessary to allow a complete and 

judicious assessment of the issues raised on appeal.” (citation omitted)).
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tax returns, the court ordered Appellant to produce the documents within 30

days. 

Appellant timely filed a notice of appeal, followed by a court-ordered 

Pa.R.A.P. 1925(b) statement, raising nine claims of trial court error. The court 

issued a brief Rule 1925(a) opinion, concluding its Discovery Order “disposed 

solely of discovery issues and, as such, was not a final order but rather an 

interlocutory one” that is not appealable. Trial Court Opinion, 12/17/21, at 1

(citing Commonwealth v. Nicodemus, 636 A.2d 1118, 1120 (Pa. Super. 

1993) (“a final [o]rder is one which ends the litigation or disposes of the entire 

case.”)). Accordingly, the trial court suggested this Court quash the appeal 

as interlocutory. Id. at 2.

On November 19, 2021, BCHS filed in this Court an application to quash,

arguing the Discovery Order was not appealable because it was neither final 

nor collateral. See generally Application to Quash, 11/19/21; see also In

re Estate of Moskowitz, 115 A.3d 372, 388 (Pa. Super. 2015) (explaining, 

under our Rules of Appellate Procedure, a party is only permitted to appeal 

from: “(1) a final order or an order certified as a final order (Pa.R.A.P. 341); 

(2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory 
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order by permission (Pa.R.A.P. 312, 1322; 42 Pa.C.S. § 702(b)); or (4) a 

collateral order (Pa.R.A.P. 313).” (citation omitted)).

4 BCHS asserted:

Allowing appeals each time a party requests tax returns from the 

opposing party in breach of contract actions would result in the 

corrosion in the final order rule. Discovery requests for the tax 

returns of a party during relevant times of an action is common 

because it is often relevant. They are especially relevant when[, 

as in the instant case,] there is a claim for breach of contract in 

which a plaintiff claims a loss of income as a result of the breach. 

If this Court were to take a collateral appeal each time a party 

does not want to turn over tax returns in discovery, it would 

amount to a needless burden on the Court and cause undue delays 

of countless cases at the Common Pleas level.

Brief in Support of Application to Quash, 11/19/21, at 15 (unnumbered).

Appellant filed an answer to the application to quash on November 29, 

2021, asserting that the Discovery Order is immediately appealable as a 

collateral order. On January 6, 2022, this Court denied BCHS’s application to 

quash without prejudice to its right to raise the issue before the merits panel.

Appellant presents four issues for our consideration:

A. Is a discovery order compelling the disclosure of tax returns 

and tax information of a non-party to a lawsuit a collateral 

order, thus appealable as of right?

B. Is an order requiring a limited liability company to produce 

personal and business tax returns with related forms irrelevant 

to any claim or defense where they only relate to work that 

was completed and paid for in a claim for breach of contract 

seeking money damages; the work extended for two months 

in one year and three months in the second year; and the 

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4

It is undisputed that the Discovery Order is not a final order, as it does not 

dispose of all claims and all parties. Appellant did not request or receive 

permission to appeal the Discovery Order pursuant to Pa.R.A.P. 312.
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recoverable damages are the difference between the contract 

price and the reasonable cost of completion of the job?

C. Are the payroll expenses and documents for work that was 

completed and paid for irrelevant to any claim or defense 

where the recoverable damages are the difference between the 

contract price and the reasonable cost of completion and an 

accounting of the same an unreasonable burden to impose 

upon the contractor?

D. Is it an unreasonable burden to require a contactor to 

determine and identify what work was done and the cost of 

materials and labor between the payment of past draws that 

are not at issue where the recoverable damages are the 

difference between the remaining contract price and the 

reasonable cost of completion of the job?

Appellant’s Brief at 2-3.

Appellant first argues the trial court erred in concluding the Discovery 

Order is not appealable as a collateral order.5 Id. at 10. Conversely, BCHS 

requests quashal on the basis that the Discovery Order does not satisfy the 

collateral order doctrine. BCHS Brief at 8 (“Allowing appeals each time a party 

requests tax returns from the opposing party in breach of contract actions 

would result in the corrosion of the final order rule.”). 

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5 Appellant did not present this issue in its Rule 1925(b) statement. Ordinarily, 

“[i]ssues not included in the Statement and/or not raised in accordance with 

the provisions of [Rule 1925(b)] are waived.” Pa.R.A.P. 1925(b)(4)(vii). 

However, “[d]ue to the jurisdictional nature of the collateral order doctrine, 

[an appellate] Court ... may raise it sua sponte.” Brooks v. Ewing Cole,

Inc., 259 A.3d 359, 370 (Pa. 2021); see also Barak v. Karolizki, 196 A.3d 

208, 215 (Pa. Super. 2018) (“The question of appealability of an order goes 

directly to the jurisdiction of the Court asked to review the order.” (citation 

omitted)).
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“The appealability of an order under the Pa.R.A.P. 313 collateral order 

doctrine presents a question of law, over which our standard of review is de 

novo and our scope of review is plenary.” Brooks, 259 A.3d at 365. “[I]n 

general, discovery orders are not final, and are therefore unappealable.” 

Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004). However, Pa.R.A.P. 

313(b) provides that appeals may be taken from collateral orders, i.e., orders 

which are 

separable from and collateral to the main cause of action where 

the right involved is too important to be denied review and the 

question presented is such that if review is postponed until final 

judgment in the case, the claim will be irreparably lost.

Id.; see also Meyer-Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 

930, 936 (Pa. Super. 2016) (“The collateral order doctrine is a specialized, 

practical application of the general rule that only final orders are appealable 

as of right.”). To satisfy the collateral order doctrine, an appellant must 

demonstrate the 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. The first

prong, separability, occurs when we can address the issue

surrounding the disputed order without analyzing the ultimate

issue in the underlying case. As for the second prong, importance,

it is not sufficient that the issue be important to the particular

parties. Instead, the issue must involve rights deeply rooted in

public policy going beyond the particular litigation at hand. We

must interpret the collateral order doctrine narrowly, and each of

the above prongs must be clearly present for us to deem an order

collateral.
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Cabot Oil & Gas Corp. v. Speer, 241 A.3d 1191, 1196-97 (Pa. Super. 2020) 

(citations omitted).

Here, Appellant argues all three prongs of the collateral order doctrine 

exist because:

The trial court’s order compelling the production of Mr. Smith’s (a 

nonparty) personal income tax returns and related documents is 

a collateral order because whether those documents are 

discoverable is [a] separable question from the issues involved in 

the merits of the case, involves a recognized privacy right that is

too important to be denied review, and the privacy of the 

documents will be irreparably lost if review is postponed until after 

final judgment.

Appellant’s Brief at 8 (emphasis added). After careful consideration, we agree.

With respect to the first prong, separability, Appellant’s claim of a 

recognized privacy right regarding its and Smith’s tax return information is 

distinct from the underlying breach of contract claim. See, e.g., Speer, 241 

A.3d at 1197 (first prong of collateral order doctrine was met “because it is 

possible to address whether [a]ppellants’ financial records are discoverable 

without analyzing the merits of [a]ppellees’ actions against [a]ppellants under 

the Dragonetti Act or for tortious interference with contract.”); see also J.S.

v. Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004) (in personal injury 

action, defendant’s expert medical witness appealed court order requiring 

production of 1099 federal tax documents from any insurance company or 

attorney; we held that admissibility of the expert’s tax documents “may be 

addressed without analyzing [defendant’s] alleged negligence in the 

automobile accident.”).
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Appellant also met the second prong because the privacy interest in 

Appellant’s and Smith’s tax returns raises a sufficiently important public policy 

concern. Speer, 241 A.3d at 1197 (“[a]ppellants fulfill the second prong, 

importance, because they have a significant privacy interest in their tax 

returns.” (emphasis added) (citing Dougherty v. Heller, 138 A.3d 611, 629 

n.10 (Pa. 2016) (individuals have a “privacy interest in information contained 

in federal tax returns. ... Such information is made confidential per federal

statute.”)); see also J.S., 860 A.2d at 1117 (holding expert witness’s “privacy 

interest in his income information raises a sufficiently important public policy 

concern.”).

Finally, the third prong, irreparable loss, is met, as any privacy interest 

Appellant and Smith have in their respective tax returns will be forever lost if 

they comply with the Discovery Order and produce the documents. J.S., 860 

A.2d at 1117 (holding third prong was met where “[a]ny privacy interest 

[expert witness] may have in the [federal tax] forms will be irreparably 

violated if he complies with the order and produces the documents.”); see 

also Merithew v. Valentukonis, 869 A.2d 1040, 1043 (Pa. Super. 2005) 

(holding third prong was met in motor vehicle accident case, where 

defendant’s privacy interest in her financial worth would be irreparably lost if 

she complied with discovery order to disclose financial information instead of 

taking collateral order appeal). Accordingly, we conclude the Discovery Order 
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is a collateral order from which Appellant properly appeals. Thus, we examine 

Appellant’s remaining issues.

In issues two, three and four, Appellant claims the trial court erred in 

entering the Discovery Order and improperly compelling Appellant’s 

production of private information that is not relevant to the action. See

Appellant’s Brief at 8-9, 12-17. Appellant argues:

This Court should reverse the trial court’s [Discovery O]rder ... 

because it requires the disclosure of information, [i.e., business 

and personal tax returns,] that is not relevant to any claim or

defense making it beyond the scope of discovery. The order 

should also be reversed because it imposes an unreasonable 

burden on [Appellant] in the form of an accounting and forensic 

investigation into matters that can be learned from records or are 

equally available to [BCHS]. 

Id. at 8; see also id. at 9 (“the court gave no consideration to the privacy 

interests of those required to disclose confidential tax returns and 

information.”).

We are mindful that “on review of an order concerning discovery, an 

appellate court applies an abuse of discretion standard.” McNeil v. Jordan, 

894 A.2d 1260, 1268 (Pa. 2006); see also Dougherty, 138 A.3d at 629 

(observing a “trial court is in the best position to weigh fairly the competing 

needs and interests of parties affected by discovery.” (citation omitted)). 

An abuse of discretion is not merely an error of judgment, but if 

in reaching a conclusion the law is overridden or misapplied, or 

the judgment exercised is manifestly unreasonable, or the 

judgment is the result of partiality, prejudice, bias or ill-will, as 

shown by the evidence of record, discretion is abused.
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LSF8 Master Participation Tr. v. Petrosky, 2022 PA Super 45, *4 (Pa. 

Super. 2022) (citation and brackets omitted).

The trial court in this case offered a conclusory, one-sentence merits 

analysis of Appellant’s multiple claims, stating:

In the event the appellate court finds [Appellant’s] appeal should 

not be quashed, we ... granted the Motion to Compel inasmuch as 

we found [BCHS’s] request was reasonably calculated to lead to 

the discovery of admissible evidence, especially pertaining to the 

averred breach and damages in dispute.

Trial Court Opinion, 12/17/21, at 2 (italics omitted).

“It is incumbent upon a trial court to provide this Court with its Rule 

1925(a) opinion addressing an appellant’s issues, with citation to the record, 

to permit a meaningful and effective review of the issues raised and efficient 

use of judicial resources.” Commonwealth v. Widger, 237 A.3d 1151, 1165 

n.5 (Pa. Super. 2020). Instantly, to properly exercise our review, we require 

sufficient reasoning from the trial court before we can meaningfully address 

Appellant’s issues. Where a trial court’s failure to comply with Rule 1925(a) 

hampers our ability to conduct a meaningful review, the remedy is to remand 

the case to the trial court with instructions to prepare an opinion and return 

the case to this Court. K-B Bldg. Co. v. Hermara Assocs., 709 A.2d 918, 

919 (Pa. Super. 1998); cf. Cooke v. Equitable Life Assur. Soc. of U.S., 

723 A.2d 723, 727 (Pa. Super. 1999) (remand for preparation and filing of

Rule 1925(a) opinion unnecessary where lack of opinion did not hamper this 

Court’s review of a question of law). Accordingly, we are constrained to 
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remand this case to the trial court for the issuance of supplemental Rule 

1925(a) opinion within 60 days of this filing.

Case remanded with instructions. Jurisdiction retained.