Bailer, P. v. Bailer, J. ( 2022 )


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  • J-A13036-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    PURDY R. TRAN BAILER                     :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    Appellee              :
    :
    v.                          :
    :
    JOSHUA R. BAILER                         :
    :
    Appellant             :        No. 428 EDA 2022
    Appeal from the Order Entered February 4, 2022
    In the Court of Common Pleas of Chester County
    Civil Division at No(s): 2019-09332-CU
    BEFORE: OLSON, J., DUBOW, J., and KING, J.
    MEMORANDUM BY KING, J.:                               FILED JUNE 23, 2022
    Appellant, Joshua R. Bailer (“Father”), appeals from the order entered
    in the Chester County Court of Common Pleas, which granted the petition for
    special relief filed by Appellee, Purdy R. Tran Bailer (“Mother”), seeking
    temporary sole legal custody to make decisions concerning the COVID-19
    vaccination for the parties’ minor children, M.B. (born in May 2013) and M.L.B.
    (born in July 2015) (“Children”). We dismiss the appeal as moot.
    The relevant facts and procedural history of this appeal are as follows.
    The parties are the biological parents of Children. On September 13, 2019,
    Mother filed a divorce complaint. The parties entered a stipulation regarding
    custody on February 6, 2020, by which the parties would share legal custody
    concerning Children, and Mother would have primary physical custody, subject
    to Father’s periods of partial physical custody.
    J-A13036-22
    On November 24, 2021, Mother filed a petition for special relief seeking
    sole legal custody as it related to COVID-19 vaccinations for Children. Father
    filed an answer on January 12, 2022, opposing vaccination for Children. The
    court held a hearing on January 24, 2022. On January 28, 2022, the court
    entered an order stating: “[Mother’s] request for temporary sole legal custody
    to make decisions regarding the vaccination of minor children…with the Pfizer
    BioNTech COVID-19 vaccine is GRANTED.” (Order, 1/28/22, at 1). The court’s
    decision in support of its order, also filed on January 28, 2022, contained
    slightly different language. That decision stated: “The court finds that it is in
    the best interest of [Children] to receive the Pfizer vaccine and Mother shall
    have temporary sole legal custody to permit Mother to have [Children]
    vaccinated against COVID-19 and receive all follow-up vaccinations for
    COVID-19.” (Decision in Support of Order, 1/28/22, at 11).
    On February 1, 2022, Father filed a timely notice of appeal and
    contemporaneous Pa.R.A.P. 1925(a)(2)(i) statement. That day, Father also
    sought to stay the order pending appeal, which the court denied.
    Preliminarily, Mother has filed an application in this Court seeking to
    quash or dismiss the appeal as moot, contending that Children have already
    received both doses of the Pfizer COVID-19 vaccine. Mother acknowledges
    that the trial court’s decision in support of its order might have extended
    Mother the authority to give Children booster shots, but Mother emphasizes
    that the court’s order from which Father appealed did not grant her such
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    J-A13036-22
    authority. In any event, Mother maintains there is no booster shot eligible for
    Children (in the age 5 to 11 bracket) for the COVID-19 vaccine at this time.1
    Mother argues that no exception to the mootness doctrine applies in this
    case. Specifically, Mother claims the issue does not involve a matter of great
    public importance, where custody cases are fact specific and decided on a
    case-by-case basis. Mother insists this Court’s decision concerning whether
    she can vaccinate Children would not apply across the board to all families.
    Mother also contends the issue of whether Children should be vaccinated is
    unlikely to be repetitive and apt to elude appellate review, because the trial
    court’s decision cannot be applied wholesale to other children in other custody
    cases. Further, Mother claims there is no detriment to Father in this case
    where Children have already been vaccinated; as such, any alleged detriment
    has already passed.
    In response, Father argues that the appeal is not moot because the trial
    court authorized Mother to give Children booster doses of the COVID-19
    vaccine.2 Father complains the court permitted Mother to get booster doses
    ____________________________________________
    1 At the time Mother filed her application for relief, there was no booster shot
    eligible for children in the 5-11 age bracket. On May 17, 2022, the Food and
    Drug Administration (“FDA”) authorized the use of a single booster dose for
    administration to children in the 5-11 age bracket. (See FDA New Release,
    Coronavirus (COVID-19) Update, at https://www.fda.gov/news-events/press-
    announcements/coronavirus-covid-19-update-fda-expands-eligibility-pfizer-
    biontech-covid-19-vaccine-booster-dose) (Last Visited June 10, 2022).
    2In making this assertion, Father cites only to the decision in support of the
    court’s order, and not the order itself.
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    J-A13036-22
    of the vaccine at any time Children are eligible for a booster, regardless of
    their need, Father’s opposition, or the time which has elapsed from the trial
    court’s decision. Father insists this Court should follow the decision in In re
    A.W., 
    187 A.3d 247
     (Pa.Super. 2018), in which this Court decided that an
    appeal of an order authorizing the Department of Human Services (“DHS”) to
    obtain vaccines against childhood illnesses for four dependent siblings met an
    exception to the mootness doctrine. For the following reasons, we agree with
    Mother that this appeal is moot.
    We observe:
    As a general rule, an actual case or controversy must exist
    at all stages of the judicial process, or a case will be
    dismissed as moot. An issue can become moot during the
    pendency of an appeal due to an intervening change in the
    facts of the case or due to an intervening change in the
    applicable law. In that case, an opinion of this Court is
    rendered advisory in nature. An issue before a court is moot
    if in ruling upon the issue the court cannot enter an order
    that has any legal force or effect. …
    *    *    *
    [T]his Court will decide questions that otherwise have been
    rendered moot when one or more of the following
    exceptions to the mootness doctrine apply: 1) the case
    involves a question of great public importance, 2) the
    question presented is capable of repetition and apt to elude
    appellate review, or 3) a party to the controversy will suffer
    some detriment due to the decision of the trial court.
    In re D.A., 
    801 A.2d 614
    , 616 (Pa.Super. 2002) (en banc) (internal citations
    and quotation marks omitted). “The concept of mootness focuses on a change
    that has occurred during the length of the legal proceedings.” In re Cain,
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    J-A13036-22
    
    527 Pa. 260
    , 263, 
    590 A.2d 291
    , 292 (1991). “If an event occurs that renders
    impossible the grant of the requested relief, the issue is moot and the appeal
    is subject to dismissal.” Delaware River Preservation Co., Inc. v. Miskin,
    
    923 A.2d 1177
    , 1183 n.3 (Pa.Super. 2007). Importantly, “mootness, however
    it may have come about, simply deprives us of our power to act; there is
    nothing for us to remedy, even if we were disposed to do so. We are not in
    the business of pronouncing that past actions which have no demonstrable
    continuing effect were right or wrong.” Spencer v. Kemna, 
    523 U.S. 1
    , 18,
    
    118 S.Ct. 978
    , 988, 
    140 L.Ed.2d 43
     (1998).
    Instantly, the parties do not dispute that Children have already received
    both doses of the Pfizer COVID-19 vaccine. As it relates to mootness, the
    parties argue over whether the court’s decision, which contained slightly
    different language than the court’s order, gave Mother authority to have
    Children receive booster shots in the future. Nevertheless, we do not read
    the court’s order or the decision in support of the order as granting Mother
    authority to have Children receive COVID-19 booster shots.
    Mother’s petition for special relief, the court’s January 28, 2022 order,
    and the court’s January 28, 2022 decision in support of its order do not
    mention booster shots. Likewise, Mother did not offer any evidence at the
    January 24, 2022 hearing regarding whether Children’s receipt of booster
    shots would serve their best interests. To the contrary, at the time the court
    heard evidence on Mother’s petition for special relief, Children were not
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    J-A13036-22
    eligible for COVID-19 booster shots. Although the court’s decision in support
    of its order contained language stating that Children may “receive all follow-
    up vaccinations for COVID-19,” read in the context of the facts of this case,
    we interpret the court’s statement as referring to the second dose of the Pfizer
    vaccine.
    As the only issue before the court at the hearing was whether Mother
    could have Children vaccinated against COVID-19, and not whether she could
    have them receive booster shots in the event that booster shots became
    available for Children at some point in the future, the court’s order only
    granted Mother the authority to have Children receive both doses of the Pfizer
    vaccine. Children’s receipt of both doses of the Pfizer vaccine constitutes an
    intervening change in the facts such that our decision concerning the propriety
    of the court’s order would have no legal force or effect.     See In re D.A.,
    
    supra;
     Delaware River Preservation Co., Inc., supra.            Therefore, the
    appeal is moot.
    Turning to whether an exception to the mootness doctrine applies,
    Father does not explain why the issue before us is one of great public
    importance3 or how he will suffer some detriment due to the decision of the
    trial court now that Children have already been vaccinated. (See Father’s
    ____________________________________________
    3Although Father’s counsel asserted at oral argument that this issue is one of
    great public importance, Father’s brief did not adequately preserve this
    argument as it pertains to an exception to the mootness doctrine.
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    J-A13036-22
    Brief at 16-19).   Instead, Father focuses on the second exception to the
    mootness doctrine—whether the question presented is capable of repetition
    and apt to elude appellate review. See In re D.A., 
    supra.
     In support of his
    claim, Father relies on Interest of A.W., supra. Nevertheless, Interest of
    A.W. is distinguishable from this case. At the outset, the record in that case
    did not indicate whether DHS proceeded with the vaccinations of children
    while the appeal was pending. See Interest of A.W., supra at 250 n.3. But
    to the extent the matter “may technically be moot,” this Court proceeded to
    address the merits, noting generally that the issue on appeal was capable of
    repetition and apt to elude appellate review. Id. at 250 n.4. This Court did
    not explain its rationale for why the issue was capable of repetition and apt to
    elude appellate review.
    Here, there is no dispute that Children have already been given both
    doses of the COVID-19 Pfizer vaccine. Additionally, the facts of Interest of
    A.W. involved whether DHS had the authority to immunize children who have
    been adjudicated dependent, which could have been subject to repetition if
    DHS sought to have the children immunized with other vaccines as they grew
    older and were still in the custody of DHS. In this case, however, the court’s
    order granted Mother temporary legal custody, was limited to the COVID-19
    Pfizer vaccine, and Children have already received both doses of it. Therefore,
    the issue is not capable of repetition as it pertains to Children.         See
    Commonwealth v. Buehl, 
    462 A.2d 1316
    , 1319 (Pa.Super. 1983) (stating
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    J-A13036-22
    issue is “capable of repetition, yet evading review” when “(1) the challenged
    action is in its duration too short to be fully litigated prior to its cessation or
    expiration, and (2) there is a reasonable expectation that the same
    complaining party will be subjected to the same action again”).4          In sum,
    Children’s receipt of both doses of the Pfizer vaccine has eliminated the
    controversy in this case.       See In re D.A., 
    supra.
         Accordingly, we grant
    Mother’s application for relief and dismiss the appeal as moot.
    Appeal dismissed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/23/2022
    ____________________________________________
    4 Although Mother claimed the issue of whether Children should be vaccinated
    is unlikely to be repetitive and apt to elude appellate review, because the trial
    court’s decision cannot be applied wholesale to other children in other custody
    cases, the requisite inquiry is whether the issue is subject to repetition as it
    concerns the same complaining party. See 
    id.
     See also Noll v. Abeln,
    
    266 A.3d 636
     (Pa.Super. 2021) (unpublished memorandum), appeal denied,
    
    2022 WL 949774
     (Pa. Mar. 30, 2022) (stating same); Pa.R.A.P. 126(b)
    (stating we may rely on unpublished memorandum from this Court filed after
    May 1, 2019 for persuasive value).
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