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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
A.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
R.B. :
:
APPEAL OF: CHILDREN’S RESOURCE :
CTR. : No. 1062 MDA 2014
Appeal from the Order Entered June 16, 2014,
in the Court of Common Pleas of Dauphin County,
Civil Division, at No(s): 2013-CV-4359-CU
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 10, 2015
The Children’s Resource Center (CRC) appeals from an order denying
its motion to quash a subpoena entered on June 16, 2014 with respect to an
underlying child custody action. Because the trial court lacked jurisdiction,
we vacate the order.
A.B. (Mother) and R.B. (Father) are the parents of a daughter who was
born in 2008. On May 20, 2013, Mother, at the time residing in Harrisburg,
Pennsylvania, filed a complaint for custody against Father, who lived in New
Jersey, in the Dauphin County Court of Common Pleas. Mother was
particularly concerned about purported physical and sexual abuse of the
child by Father. On October 22, 2013, Mother and Father reached an
agreement with respect to custody, which was entered as an order of court.
That agreement provided that Mother would have sole physical and legal
*Retired Senior Judge assigned to the Superior Court.
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custody of the child, but Mother would provide Father with periodic updates
as to the child’s well-being. The agreement also provided that neither party
would relocate without following the procedure set forth in 23 Pa.C.S.
§ 5337, governing relocation in child custody matters.
On November 1, 2013, Mother filed a document entitled “Change of
Address” with the Dauphin County Court of Common Pleas, which indicated
that her new address was in Oakhurst, New Jersey. On December 31, 2013,
Father filed a petition for modification of the custody order and petition for
contempt because Mother relocated to New Jersey without following section
5337. After the parties were unable to reach a custody agreement, the trial
court permitted Father to conduct discovery; specifically, Mother was
ordered to sign all necessary release forms so the CRC could release child’s
psychological evaluations and counseling information to Father.
Furthermore, Mother was ordered to file a brief in support of her request to
transfer venue to New Jersey.1
On May 5, 2014, the CRC filed a motion to quash Father’s subpoena
for release of the child’s records. The CRC also requested that the trial court
appoint a guardian ad litem on the child’s behalf. On May 28, 2014, the
trial court held a hearing on Mother’s petition to transfer venue and the
CRC’s motions to quash the subpoena and appoint a guardian ad litem.
1
Mother filed a formal petition to transfer venue and a brief on April 11,
2014. Father opposed the request to transfer venue.
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At the hearing, all parties acknowledged that Mother, Father, and the
child were residing in New Jersey. N.T., 5/28/2014, at 5. Thus, counsel for
the CRC suggested it would be more expeditious to relinquish jurisdiction
and transfer the case to New Jersey for consideration of the discovery
issues. Id. Father’s counsel disagreed with this assessment and asked the
trial court to rule on the discovery matters and then transfer the case to
New Jersey. Id. at 24-25. After discussion among the trial court and all
counsel, the trial court concluded the most expeditious and appropriate path
would be to order that CRC provide the discovery, to enter a temporary
custody order permitting Father supervised visitation, and then to transfer
the matter to New Jersey.
On June 16, 2014, the trial court entered the two orders at issue in
this case. First, it denied the CRC’s motion to appoint a guardian ad litem;
second, it denied the CRC’s motion to quash the subpoena. The CRC timely
filed a notice of appeal. Subsequently, on July 11, 2014, the trial court
transferred custody jurisdiction to Monmouth County, New Jersey.
Before we are able to reach the merits of the issues set forth by the
CRC on appeal, we consider two jurisdictional hurdles. First, we consider
whether we have jurisdiction over this appeal.
An appeal may be taken only from a final order unless otherwise
permitted by statute or rule. A final order is ordinarily one which
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ends the litigation or disposes of the entire case; however, “[a]n
appeal may be taken as of right from a collateral order of an
administrative agency or lower court.” Pa. R.A.P. 313(a). A
collateral order is defined under Pa. R.A.P. 313(b) as “an order
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.”
Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999).
The CRC contends this appeal is proper pursuant to Pa.R.A.P. 313 as a
collateral order. CRC’s Brief at 14-17. It argues that
[a]ll of the requirements of Pa.R.A.P. 313 are met in this case.
First, the trial court’s order to produce the child’s confidential
medical records is separate and apart from the underlying
custody action. Second, the child’s constitutional and statutory
right to privacy in the child’s medical records is too important to
be denied review. Third, once the child’s medical records are
released to Father and to other persons authorized under the
Protective Order, the child’s constitutional and statutory right to
privacy in those records is forever lost.
Id. at 16-17.
“Generally, discovery orders involving purportedly privileged material
are appealable because if immediate appellate review is not granted, the
disclosure of documents cannot be undone and subsequent appellate review
would be rendered moot.” Rhodes v. USAA Casualty Ins. Co., 21 A.3d
1253, 1258 (Pa. Super. 2011). “Our Supreme Court in Zane v. Friends
Hospital, [] 836 A.2d 25 ([Pa.] 2003) recognized that the expectation of
confidentiality in mental health records was essential to effective mental
health treatment.” Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super.
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2010). “We acknowledge that even the threat of disclosure of the contents
of private mental health records can have a chilling effect on one’s
willingness to seek treatment. Where, as here, the privacy interest
implicated is paramount, we believe that the policy against piecemeal review
must yield to permit review.” Id.
Thus, because the trial court required the disclosure of allegedly
confidential and privileged mental health records, we agree with the CRC
that the order denying its motion to quash the subpoena is appealable as a
collateral order. Having concluded that this order is before us properly, we
now consider the other jurisdictional question at issue; namely, whether the
trial court had jurisdiction to enter the order in the first place.
The CRC contends that the trial court should never have entered the
order because it did not have jurisdiction pursuant to the Uniform Child
Custody Jurisdiction Enforcement Act (UCCJEA), 23 Pa.C.S. §§ 5401-5482.
CRC’s Brief at 17-19. Since the Dauphin County Court of Common Pleas
made an initial custody determination pursuant to 23 Pa.C.S. § 5421, we
look to section 5422 to consider whether the trial court maintained
exclusive, continuing jurisdiction to modify that order.
(a) General rule.--Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a court of
this Commonwealth which has made a child custody
determination consistent with section 5421 (relating to initial
child custody jurisdiction) or 5423 (relating to jurisdiction to
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modify determination) has exclusive, continuing jurisdiction over
the determination until:
(1) a court of this Commonwealth determines that
neither the child, nor the child and one parent, nor
the child and a person acting as a parent have a
significant connection with this Commonwealth and
that substantial evidence is no longer available in
this Commonwealth concerning the child’s care,
protection, training and personal relationships; or
(2) a court of this Commonwealth or a court of
another state determines that the child, the child’s
parents and any person acting as a parent do not
presently reside in this Commonwealth.
(b) Modification where court does not have exclusive,
continuing jurisdiction.--A court of this Commonwealth which
has made a child custody determination and does not have
exclusive, continuing jurisdiction under this section may modify
that determination only if it has jurisdiction to make an initial
determination under section 5421.
23 Pa.C.S. § 5422.
There is no dispute that as of November 1, 2013, Mother, Father, and
the child did not reside in Pennsylvania. Thus, the requirements of
subsection 5422(a)(2) are met. Accordingly, we look to subsection 5422(b),
which provides that the trial court may enter a modification order only if it
has jurisdiction pursuant to subsection 5421. That subsection provides the
following, in relevant part:
(a) General rule.--Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a court of
this Commonwealth has jurisdiction to make an initial child
custody determination only if:
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(1) this Commonwealth is the home state of the child
on the date of the commencement of the proceeding
or was the home state of the child within six months
before the commencement of the proceeding and the
child is absent from this Commonwealth but a parent
or person acting as a parent continues to live in this
Commonwealth;
(2) a court of another state does not have
jurisdiction under paragraph (1) or a court of the
home state of the child has declined to exercise
jurisdiction on the ground that this Commonwealth is
the more appropriate forum under section 5427
(relating to inconvenient forum) or 5428 (relating to
jurisdiction declined by reason of conduct) and:
(i) the child and the child’s parents, or
the child and at least one parent or a
person acting as a parent, have a
significant connection with this
Commonwealth other than mere physical
presence; and
(ii) substantial evidence is available in
this Commonwealth concerning the
child’s care, protection, training and
personal relationships;
(3) all courts having jurisdiction under paragraph (1)
or (2) have declined to exercise jurisdiction on the
ground that a court of this Commonwealth is the
more appropriate forum to determine the custody of
the child under section 5427 or 5428; or
(4) no court of any other state would have
jurisdiction under the criteria specified in paragraph
(1), (2) or (3).
(b) Exclusive jurisdictional basis.--Subsection (a) is the
exclusive jurisdictional basis for making a child custody
determination by a court of this Commonwealth.
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23 Pa.C.S. § 5421.2
In analyzing this statute, paragraph (1) does not apply here because
neither parent nor the child was residing in the Commonwealth when Father
filed the petition for modification. Since it is apparent that New Jersey has
jurisdiction in this case (both because the trial court transferred the case
there and because the child and parents live there), paragraph (2) does not
confer jurisdiction. Finally, New Jersey has not declined jurisdiction in this
case, so neither paragraphs (3) or (4) applies. Thus, we conclude that the
trial court did not have jurisdiction pursuant to section 5421; therefore, the
trial court did not maintain exclusive, continuing jurisdiction to modify
custody pursuant to section 5422(b). Accordingly, the trial court did not
have jurisdiction to entertain the requests for discovery. Because the trial
court did not have jurisdiction over this matter, we vacate the order.
Order vacated.3 Jurisdiction relinquished.
2
Pursuant to the Comment to this statute, the “proceeding” in this case
began with Father’s petition to modify custody filed on December 31, 2013.
In anticipation of entering an order modifying custody, the trial court had to
rule on whether Father was entitled to the discovery of the information in
the possession of the CRC.
3
While the CRC purports to appeal from the order denying its petition for
appointment of a guardian ad litem, the CRC raises no argument on this
issue in its brief. Moreover, such order is not appealable as a collateral
order because it does not meet the standards for being a collateral order. Cf.
Rehrer v. Youst, 91 A.3d 183, 189 (Pa. Super. 2014) (holding that the
appointment of a guardian ad litem is immediately appealable as a collateral
order as it divests a parent control over his or her minor child). However, as
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Judge Wecht joins the memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
we have concluded that the trial court did not have jurisdiction over this
matter; this order should be vacated as well.
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