Bailer, P. v. Bailer, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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