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 

1 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
2

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 
3

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 
4

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

2 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.

3 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 :

O R D E R

AND NOW, this 5

th 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