J-A13036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PURDY R. TRAN BAILER

Appellee

v.

JOSHUA R. BAILER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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/pressannouncements/coronavirus-covid-19-update-fda-expands-eligibility-pfizerbiontech-covid-19-vaccine-booster-dose) (Last Visited June 10, 2022).

2

In 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 followup 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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3 Although 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).