IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Houser and Catherine Burns, : Appellants : : v. : No. 826 C.D. 2023 : SUBMITTED: May 7, 2024 County of Lycoming, Lycoming : County Board of Elections, Lycoming : County Commissioner Tony Mussare, : Lycoming County Commissioner : Scott Metzger, Lycoming County : Commissioner Richard Mirabito and : Forrest Lehman, Director of Elections : BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: June 5, 2024 The above-captioned appeal involves a complaint in mandamus pertaining to the 2020 general election in Lycoming County. Appellants are Richard Houser and Catherine Burns, who allege that they are qualified electors in Lycoming County and members of a group called the Lycoming County Patriots. Dec. 6, 2022 Complaint, ¶¶ 1 and 15. Appellees are Lycoming County; Lycoming County Board of Elections; Lycoming County Commissioners Tony Mussare, Scott Metzger, and Richard Mirabito; and Director of Elections Forrest Lehman.

In the complaint, Appellants alleged that they became aware of various fraud allegations, irregularities, and Pennsylvania Election Code1 violations that Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. occurred during the 2020 general election in Lycoming County. Appellants presented their concerns to the Commissioners and met with them on several occasions. Complaint, ¶¶ 14, 18-19, 23, 25-30. After the Commissioners declined to vote for a forensic audit of the vote, Appellants filed the complaint demanding that the trial court order Appellees (1) to maintain any and all materials from the 2020 general election; (2) to perform a forensic audit by an independent third party; (3) to immediately report to the District Attorney’s Office all of the suspicious activity that has been reported to the County and any suspicious activity that comes to light from the audit; and (4) to decertify the November 2020 election results for Lycoming County upon proof of fraud and irregularities. Id. at p. 11, Wherefore Clause.

In preliminary objections, Appellees asserted: (1) a demurrer to the complaint in its entirety; (2) a demurrer to naming the County and the individual parties as defendants because only the Board of Elections is the proper party; (3) an alternative objection in the form of a motion to strike certain allegations that are not pertinent to the claims raised in the complaint; and (4) a lack of proper verification in compliance with Rule 1024(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.Civ.P. 1024(a). After Appellants filed substitute verifications, the Court of Common Pleas of Lycoming County considered the remaining three objections.

In an opinion authored by the Honorable Eric R. Linhardt, the trial court granted the demurrer to the complaint in its entirety and dismissed it with prejudice.

Having done so, the trial court found it unnecessary to consider the remaining preliminary objections and dismissed them as moot. We affirm based on Judge Linhardt’s well-reasoned opinion. In addition, we address Appellants’ assertions regarding the Board’s duty to report suspicious circumstances to the District

Attorney, which was not dealt with in Judge Linhardt’s opinion, as well as Appellees’ request for reasonable counsel fees under Rule 2744 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2744.

Turning first to the duty to report suspicious circumstances, Section 302(i) of the Election Code provides: The county boards of elections, within their respective counties, shall exercise, in the manner provided by this act, all powers granted to them by this act, and shall perform all duties imposed upon them by this act, which shall include the following: .... (i) To investigate election frauds, irregularities and violations of this act, and to report all suspicious circumstances to the district attorney.

25 P.S. § 2642(i).

A plain reading of Section 302(i) indicates that the General Assembly imposed statutory duties on county boards of elections to investigate alleged frauds, irregularities, and Election Code violations and to report suspicious circumstances to their respective district attorneys. In performing those duties, if a board investigates and determines that there are no suspicious circumstances, then the duty to report does not come into play. A board bears only the duty to investigate and then to report circumstances which, in its sound judgment, are determined to be suspicious. That is all that the statute requires. In other words, it is within a board’s discretion to determine whether there is credible evidence of suspicious

circumstances and no mandatory duty to report anything others may deem suspicious.2 Turning to Appellees’ request for reasonable counsel fees, Rule 2744 provides: In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including (1) a reasonable counsel fee . . . .... if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.

Pa.R.A.P. 2744. The assessment of such fees is at our discretion,3 and we exercise our discretion here in deciding not to impose such fees.

Accordingly, we affirm based on Judge Linhardt’s well-reasoned opinion in Richard Houser and Catherine Burns v. County of Lycoming (C.C.P. Lycoming, No. CP-41-CV-22-01219, filed July 5, 2023) (appended hereto).

_____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge Emerita

Here, upon being notified of eleven allegedly suspicious registrations, the Board cancelled six of them, necessarily indicating that it received the complaint, conducted its own investigation, and acted on the results of that investigation. July 5, 2023 Trial Ct. Op. at 5 n.27. See Complaint, ¶¶ 36-38. An investigation does not always lead to making a report to a district attorney.

G. Ronald Darlington et al., 20 West’s Pa. Appellate Practice, § 2744.1 (2023-2024 ed.).

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Houser and Catherine Burns, : Appellants : : v. : No. 826 C.D. 2023 : County of Lycoming, Lycoming : County Board of Elections, Lycoming : County Commissioner Tony Mussare, : Lycoming County Commissioner : Scott Metzger, Lycoming County : Commissioner Richard Mirabito and : Forrest Lehman, Director of Elections :

ORDER

AND NOW, this 5th day of June, 2024, the order of the Court of Common Pleas of Lycoming County is hereby AFFIRMED. In addition, Appellees’ request for reasonable counsel fees pursuant to Rule 2744 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2744, is hereby DENIED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge Emerita