J-A08032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.
J-A08032-15


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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