IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Department of Corrections, :

Corrections Officer John Doe :

:

 v. : No. 974 C.D. 2021

: Submitted: March 18, 2022

Inmate John Smith, :

:

Appellant :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: February 1, 2023

Inmate John Smith (Inmate), an inmate at the State Correctional 

Institution at Rockview (SCI-Rockview), appeals from the May 13, 2021, order of 

the Centre County Court of Common Pleas (trial court) that granted the request of 

the Department of Corrections (Department) and Corrections Officer John Doe 

(Officer) to compel Inmate to have his blood drawn and tested, and the test results 

disclosed under Section 8 of the Confidentiality of HIV-Related Information Act 

(Act).1 However, the Department and the Officer filed a motion to quash Inmate’s 

appeal for mootness pursuant to Pa. R.A.P. 1972(4).2 Because there exists no live 

case or controversy through which Inmate’s requested relief can be granted, and 

1 Act of November 29, 1990, P.L. 585, 35 P.S. §7608.

2

Inmate initially appealed this matter to the Superior Court, which transferred the appeal 

to this Court. By order dated October 22, 2021, we directed that the Department’s and the Officer’s

motion shall be decided with the merits. 
2

because this case does not qualify for an exception to the mootness doctrine, we 

grant the Department’s and the Officer’s motion and dismiss Inmate’s appeal as 

moot. 

The facts as found by the trial court are not in dispute. On May 4, 2021, 

Inmate threw an unknown liquid substance onto the left side of the Officer’s face, 

some of which went into the Officer’s left eye. Trial Court Opinion, 6/28/21, at 1. 

See Original Record (O.R.) at Item 15. Pursuant to Center for Disease Control 

(CDC) guidelines and Department policy, the Officer was immediately relieved 

from duty and transported to a local hospital for medical assessment and treatment,

as required by Section 8 of the Act. Trial Court Opinion at 1-2. After examination, 

a physician assistant determined that the Officer’s exposure was “significant” as 

defined by the Act. Id. at 2. On May 5, 2021, Department staff asked Inmate to 

consent to HIV blood testing and the release of his HIV status to assess the risk of 

transmitting HIV to the Officer. Inmate refused to consent. Id. 

The Department and the Officer filed a complaint with the trial court 

on May 10, 2021, seeking to compel Inmate to have his blood drawn and to disclose 

the test results, averring that the Officer had a significant exposure to the unknown 

fluid thrown by Inmate, and that the Officer had a compelling need for this 

information as those terms are defined in the Act. O.R. at Item 1. The Department 

and the Officer requested that the matter be placed under seal, and that both Inmate 

and the Officer be permitted to use pseudonyms to protect their confidential health 

information, which the trial court granted. Id. at Items 3, 5. The Department and 

the Officer also sought an expedited hearing, which was held virtually due to the 

COVID-19 protocols then in place. Id. at Items 2, 4. At the May 13, 2021 hearing, 

both parties participated in the virtual hearing, were represented by counsel, had the 
3

opportunity to question witnesses, and to offer evidence. Trial Court Hearing, Notes 

of Testimony (N.T.), 5/13/21. See O.R. at Item 16. At the hearing, the Officer 

testified that the unknown fluid Inmate threw at him smelled like urine, and that it 

entered his left eye. N.T. at 12. The Officer also testified that he was prescribed and 

took post-exposure preventive (PEP) medication, described as a prophylactic 

treatment to prevent transmission of HIV, and that the PEP medication caused him 

negative side effects. Id. at 14. 

At the conclusion of the hearing, the trial court found that the 

Department and the Officer met their burden under the Act to demonstrate that the 

Officer had a compelling need for Inmate’s testing and disclosure, subject to all 

appropriate safeguards. N.T. at 32-33 and O.R. at Item 7. As required by Section 

8(c) of the Act, 35 P.S. §7608(c), the trial court assessed whether the Officer had a 

compelling need by balancing “the need for disclosure against the private interest” 

of Inmate. Trial Court Opinion at 2. The trial court concluded that the Officer 

demonstrated compelling need because of the infectious nature of HIV, and the risk 

of HIV transmission when bodily fluids come into contact with the mucus membrane 

of the eye. Id. The trial court also concluded that the Officer was unable to make 

informed decisions about future medical treatment without the requested 

information. Id. The trial court also concluded that the Officer had a compelling 

need for the information to relieve the emotional distress of not knowing Inmate’s 

HIV status, and that “[n]o other means of accommodation exist” to meet these needs 

other than disclosure. Id. at 2-3. Inmate then appealed the trial court’s order.

3

 

3 Our review is limited to determining whether the trial court committed an abuse of 

discretion. Application of Milton S. Hershey Medical Center of the Pennsylvania State University, 

634 A.2d 159, 161 (Pa. 1993). “Where the discretion exercised by the trial court is challenged on 

appeal, the party bringing the challenge bears a heavy burden.” Id. An abuse of discretion is not 

(Footnote continued on next page...)
4

The parties do not dispute that Inmate’s blood was drawn sometime 

after the trial court hearing concluded, and before Inmate filed this appeal on June 

4, 2021. The Department and the Officer seek to quash Inmate’s appeal as moot 

because Inmate’s blood draw and the tests had already been performed, and the 

disclosure of the relevant data had already occurred, by the time Inmate filed this 

appeal. Appellees’ Motion to Dismiss at 2-3 (unnumbered). In his response, Inmate 

admitted that “it appears that the blood draw was completed within minutes of the 

[trial court’s] termination of the video[-]conferenced hearing and before counsel 

could travel to [SCI-Rockview] to consult with his client about seeking a stay or 

appeal.” Appellant’s Answer to Appellee’s Motion to Dismiss at 2. Inmate avers

that this matter presents an exception to the mootness doctrine because the issue is 

likely to recur yet evade appellate review. Id. 

It is well established that courts may not decide moot cases. Generally, 

a case will be dismissed as moot if no actual case or controversy exists. Mistich v. 

Pennsylvania Board of Probation and Parole, 863 A.2d 116, 119 (Pa. Cmwlth. 

2004). The existence of a case or controversy requires: (1) a legal controversy that 

is real and not hypothetical; (2) a legal controversy that affects an individual in a 

concrete manner so as to provide the factual predicate for a reasoned adjudication; 

and (3) a legal controversy with sufficiently adverse parties to sharpen the issues for 

judicial resolution. Id. (citations omitted). A controversy must continue through all 

stages of litigation, including appeals. Id. Courts will not enter judgments to which 

no effect can be given. Id. An issue can become moot on appeal as a result of an 

merely an error of judgment. An abuse of discretion will only be found if, in reaching a conclusion, 

the trial court overrode or misapplied the law, the judgment exercised was manifestly 

unreasonable, or is the result of partiality, bias, or ill will as evidenced by the record. Id. (citations 

omitted).
5

intervening change in the facts of a case, or due to an intervening change in the 

applicable law. Id.; see also In re Gross, 382 A.2d 116, 120 (Pa. 1978). 

However, where the conduct complained of is capable of repetition yet 

likely to evade review, or the case involves questions important to the public interest, 

courts may decide the issue even if the present controversy is technically moot. 

Gaffney v. City of Philadelphia, 728 A.2d 1049, 1052 (Pa. Cmwlth. 1999). An action 

may be subject to this exception if the duration of the action is too short to be fully 

litigated before the controversy expires. See Driscoll v. Zoning Board of Adjustment 

of the City of Philadelphia, 201 A.3d 265, 270-71 (Pa. Cmwlth. 2018). 

As to the mootness issue, the Department and the Officer claim that 

because Inmate’s testing and disclosure occurred before Inmate’s appeal was filed, 

Inmate’s appeal should be dismissed as moot. The Department and the Officer argue 

that once the testing and disclosure occurred, the Court could not grant Inmate’s 

requested relief, citing in support In re Gross, 382 A.2d at 120. The Department and 

the Officer assert that when faced with an identical fact situation, this Court 

dismissed as moot an inmate’s appeal in Department of Corrections and Officer 

John Doe v. Inmate John Smith (Appeal of Corey Bracey)(Bracey) (Pa. Cmwlth., 

No. 121 C.D. 2013, filed February 27, 2013).4 

The Department and the Officer also contend that Inmate’s appeal does 

not qualify as an exception to the mootness doctrine as an issue that is “likely to 

recur, yet evade appellate review,” citing in support Gaffney, 728 A.2d at 1052. The 

Department and the Officer do not dispute that Inmate’s blood test occurred on the 

same day as the hearing, which they argue was appropriate given the exigency of the 

4

See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an 

unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] 

Non-precedential decisions . . . may be cited for their persuasive value.”). 
6

circumstances and the risk to the Officer’s health. The Department and the Officer 

note that Inmate asked whether his attorney intended to file an appeal at the 

conclusion of the hearing, but that the appeal was not filed until June 4, 2021. N.T. 

at 33. The Department and the Officer submit that although this issue may recur, it 

is unlikely to evade review, because an inmate may request a stay of the trial court’s 

order pending appeal, which Inmate failed to do here. 

Inmate responds that his appeal should not be dismissed as moot 

because it is likely to recur and evade review, based on the expedited timeline for 

hearings under the Act. Inmate contends that the blood draw was performed within 

minutes of the entry of the trial court’s order, before he had the opportunity to consult 

with his attorney to determine whether to seek a stay. Inmate claims that this 

situation presents a perfect example of a case that is likely to evade judicial review, 

leaving him and other inmates without a remedy. Inmate seeks to distinguish In re 

Gross, 382 A.2d 116, because in that case mootness was caused by a change in the 

law, rather than a change in the facts. Inmate further responds that in Application of 

Milton S. Hershey Medical Center, 634 A.2d at 161 n.1, the Supreme Court decided 

a disclosure issue under the Act, even though it was technically moot, based on the 

capable-of-repetition-yet-evading-review exception. Inmate objects to the 

Department’s and the Officer’s reliance on Bracey, because that case was dismissed 

as moot through a per curiam order and not through a memorandum opinion as 

required by Pa. R.A.P. 126, and because the Department did not attach the order to 

its brief. 

We agree that Inmate’s blood draw and testing occurred soon after the 

conclusion of the trial court hearing, based on the expedited proceeding under

Section 8(g) of the Act, 35 P.S. §7608(g). We conclude that Inmate’s appeal became 
7

moot based on the factual developments that occurred after the trial court hearing, 

namely, that Inmate’s blood was drawn before he filed his appeal. An issue can 

become moot on appeal as a result of an intervening change in the facts of a case, 

which is what occurred here. See Mistich, 863 A.2d at 119, and In re Gross, 382 

A.2d at 120. 

We must next consider whether this appeal presents an exception to the 

mootness doctrine, and we conclude that it does not. We reject Inmate’s argument 

that orders directing blood tests under the Act are likely to evade review based on 

the expedited timeline, because Inmate failed to seek a stay pending appeal. In 

Application of Milton S. Hershey Medical Center, 634 A.2d 159, the question 

presented was whether two hospitals could disclose, and how they could disclose, 

that a physician on their medical staffs had tested positive for HIV. In that case, 

temporary stays of the trial court’s order were requested and granted, and upon their 

expiration, the order to disclose the information was given effect. Id. at 159 n.1. 

Under those facts, the Supreme Court concluded that the capable-of-repetition-yetevading-review exception to mootness applied. Id. 

Here, however, although Inmate inquired about whether to file an 

appeal at the end of his hearing, neither he nor his attorney sought a stay, and he did 

not file his appeal until after the testing and disclosure had occurred. Although the 

expedited procedures for blood testing may be repeated in other actions under the 

Act, the affected individual may still seek a stay pending appeal to delay the blood 

draw, thereby preserving prompt judicial review. The Supreme Court’s decision in 

Application of Milton S. Hershey Medical Center does not compel a different result 

because the scope of the disclosure and the competing interests present in that case 

are not present here. Further, although we acknowledge that under Heim v. Medical 
8

Care Availability and Reduction of Error Fund, 23 A.3d 506, 510 (Pa. 2011), a per 

curiam order may not serve as binding precedent, we nevertheless take judicial 

notice of this Court’s decision in Bracey for its persuasive value on the issue of 

mootness in actions under the Act.5 

Accordingly and for the foregoing reasons, we grant the Department’s

and the Officer’s motion and dismiss Inmate’s appeal as moot.6 

MICHAEL H. WOJCIK, Judge

5

It is appropriate for this Court to take judicial notice of documents that are filed and 

entered into our docket. See, e.g., Pa. R.E. 201(b)(2) (permitting courts to take judicial notice of 

facts that may be “determined from sources whose accuracy cannot reasonably be questioned”); 

Moss v. Pennsylvania Board of Probation and Parole, 194 A.3d 1130, 1137 n.11 (Pa. Cmwlth. 

2018) (taking judicial notice of docket entries that were not part of the original record); Miller v. 

Unemployment Compensation Board of Review, 131 A.3d 110, 115 (Pa. Cmwlth. 2015) (taking 

judicial notice of the entries on a claimant’s criminal docket and the records contained therein).

6 Moreover, even if the above-captioned matter was not dismissed as moot, we discern no 

abuse of discretion by the trial court in this case. Our review of the original record reveals no 

abuse of discretion by the trial court when it found that the Department met the requirements of 

Section 8 of the Act. The record also demonstrates that the trial court did not override or misapply 

the law, and that its judgment was not manifestly unreasonable, nor was the result of partiality, 

bias, or ill will. Application of Milton S. Hershey Medical Center, 634 A.2d at 161.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Department of Corrections, :

Corrections Officer John Doe :

:

 v. : No. 974 C.D. 2021

: 

Inmate John Smith, :

:

Appellant :

O R D E R

AND NOW, this 1

st day of February, 2023, the Motion to Quash or 

Dismiss for Mootness filed by the Commonwealth of Pennsylvania, Department of 

Corrections and Corrections Officer John Doe is GRANTED, and the abovecaptioned appeal is DISMISSED as moot. 

__________________________________

MICHAEL H. WOJCIK, Judge