J-A08032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

A.B.

v.

R.B.

APPEAL OF: CHILDREN’S RESOURCE 

CTR.

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 
J-A08032-15

- 2 -

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.
J-A08032-15

- 3 -

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 
J-A08032-15

- 4 -

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. 
J-A08032-15

- 5 -

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 
J-A08032-15

- 6 -

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:
J-A08032-15

- 7 -

(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.
J-A08032-15

- 8 -

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 
J-A08032-15

- 9 -

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.