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ESTATE DARRELL DORONE. APPEAL WILLIAM DORON AND CAROL DORON (12/27/85)

filed: December 27, 1985.

IN RE ESTATE OF DARRELL DORONE. APPEAL OF WILLIAM DORON AND CAROL DORON, PARENTS AND NATURAL GUARDIANS OF DARRELL DORONE, A/K/A DARRELL DORON


Appeal from the Order in the Court of Common Pleas of Lehigh County, Orphans No. 1984 - 852.

COUNSEL

William R. Bell, Philadelphia, for appellants.

Spaeth, President Judge, and McEwen and Beck, JJ. Beck, J. files a dissenting opinion.

Author: Spaeth

[ 349 Pa. Super. Page 63]

This is an appeal from two orders of the Court of Common Pleas of Lehigh County appointing a temporary guardian to consent to blood transfusions as necessary during emergency surgery on appellants' son, who was a patient at The Lehigh Valley Hospital Center and was unconscious as the result of an automobile accident. Appellants' son was a Jehovah's Witness and had purportedly signed a medical alert card to the effect that for religious reasons he did not wish to be given blood transfusions. Appellants argue that the court should have appointed them as temporary guardians of their son, rather than a hospital administrator, and that the orders authorizing blood transfusions infringed their son's right to self-determination and his First Amendment right to freedom of religion.*fn1 As it developed, at least one blood transfusion did prove necessary during the surgery. As appellee, the hospital where the surgery was performed argues that appellants have waived all issues by failing to file exceptions to the court's orders. It also argues that the case is moot. We hold that the failure to file exceptions will be excused; that the case is not moot; and that the court's orders did not violate the rights of appellants' son, either to self-determination or freedom of religion. We therefore affirm the orders.

1

We must consider appellee's arguments first, for if all issues have been waived, or the case is moot, that is the end of the matter.

[ 349 Pa. Super. Page 64]

The trial court issued the orders in response to emergency telephone calls during which the patient's attending surgeon and the assistant hospital administrator said that the patient was unconscious; that he would die unless surgery were immediately performed; that if complications developed during the surgery, he would die without a blood transfusion; but that the patient's parents would not authorize a transfusion. Slip op. of tr. ct. at 1-3. It is not surprising that in these circumstances the orders were terse. The first, dated August 1, 1984, simply appointed a hospital administrator temporary guardian to consent to blood transfusions necessary incident to the surgery to be performed that day. The second, dated August 3, added as a preface the words, "it appearing that failure to appoint a temporary guardian for Darrell Dorone will result in irreparable harm to the alleged incompetent . . .;" this language tracks the statutory provision under which the trial court acted. Slip op. of tr. ct. at 10; 20 Pa.C.S. ยง 5513. Neither order conformed to the form contemplated by Pa.R.C.P. 1517, which requires a statement of the issues, a statement of the facts, and a discussion of the questions of law and the court's conclusions.

In the circumstances, we do not believe that exceptions to the orders were necessary. When an order neither comports with the requirements of Rule 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused. Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976); Tallon v. Liberty Hose Co. No. 1, 336 Pa. Super. 530, 534 n. 1, 485 A.2d 1209, 1211 n. 1 (1984); Storti v. Minnesota Mutual Life Insurance Co., 331 Pa. Super. 26, 28-29, 479 A.2d 1061, 1062; Barton v. Penco, 292 Pa. Super. 202, 204, 436 A.2d 1222, 1223 (1981). But see Cornell v. D'Italia, 287 Pa. Super. 233, 429 A.2d 1186 (1981). Accordingly, appellants' failure to file exceptions did not result in waiver of the issues appellants seek to have us decide.

[ 349 Pa. Super. Page 65]

The question remains, however, whether these issues have become moot. As a general rule an actual case or controversy must exist at all stages of the judicial process, and a case once "actual" may become moot because of a change of facts. Pennsylvania Coal Mining Association v. Commonwealth, Department of Environmental Resources, 498 Pa. 1, 444 A.2d 637 (1982); Commonwealth v. Joint Bargaining Committee for Pennsylvania Social Services Union, 484 Pa. 175, 398 A.2d 1001 (1979); In re Gross, 476 Pa. 203, 382 A.2d 116 (1978); Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966). An exception is made, however, for cases in which the issues are capable of repetition but likely to evade review if the general rule on mootness is applied. Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974); Wiest v. Mount Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974), cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974); Commonwealth v. Joint Bargaining Committee, supra, 484 Pa. at 175, 398 A.2d at 1001; Sherrer v. Lamb, 319 Pa. Super. 290, 466 A.2d 163 (1983). Thus a case will not be found moot when the challenged action is in its duration too short to permit full litigation and there is a reasonable expectation that the same complaining party will be subject to the same action again, Commonwealth v. Roger Buehl, Appeal of Philadelphia Newspapers, Inc., 316 Pa. Super. 215, 462 A.2d 1316 (1983), citing Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), or, in a class action, when there is a "constant existence of a class of persons suffering the deprivation," Sherrer v. Lamb, supra, 319 Pa. Super. at 295, 466 A.2d at 166, citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975). Where the same party will not be subject to the harm again and the action is not a class action, still, the case will not be found moot if the issues capable of repetition but likely to evade review are "substantial questions," or "questions of public importance." Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977); Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976); Goldsmith v. Lower Page 66} Moreland School District, 75 Pa. Commw. 288, 461 A.2d 1341 (1983); accord In re Remley, 324 Pa. Super. 163, 471 A.2d 514 (1984).*fn2

Here we may assume that the particular patient, appellants' son, is not reasonably likely to suffer another emergency involving surgery incident to which he is subjected to a transfusion by court order. However, there is a large class of other Jehovah's Witnesses, and it is reasonably likely that at least some of these will be involved in emergencies in which a doctor will seek a court order authorizing a transfusion. Moreover, the issues raised by this case are capable of evading review if the general rule of mootness is applied, for a transfusion ordered by a court in an emergency will always be given before the appellate process can be completed. Finally, the rights alleged to have been violated include the First Amendment right to freedom of religion, a matter of public importance.*fn3 We therefore conclude that this case is not moot.*fn4

[ 349 Pa. Super. Page 67]

Our Supreme Court's decision in In re Gross, supra, is not to the contrary. There the Court held that the appeal of an order denying an injunction to halt administration of medication against the patient's will was moot after the patient was released. The case is distinguishable because the law under which the medication was administered, and which the appellant was challenging as unconstitutional, had been amended before the appeal was heard. Id., 476 Pa. at 203, 382 A.2d at 116.*fn5

2

On the merits of this case, the issue presented is narrow. Specifically, it is: was the evidence that the patient would refuse a blood transfusion of such quality that the court should not have appointed a temporary guardian to consent to a transfusion being given? Obviously, this is not an abstract question; it can only be ...


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