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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KATHRINE ANN DETWILER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 390 MDA 2023

Appeal from the Judgment of Sentence Entered February 23, 2023

In the Court of Common Pleas of Columbia County Criminal Division at 

No(s): CP-19-CR-0000015-2022

COMMONWEALTH OF PENNSYLVANIA

v.

GARY ROBERT KRUM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 391 MDA 2023

Appeal from the Judgment of Sentence Entered February 23, 2023

In the Court of Common Pleas of Columbia County Criminal Division 

at No(s): CP-19-CR-0000016-2022

COMMONWEALTH OF PENNSYLVANIA

v.

ELAINE M. BARNHART 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 392 MDA 2023
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Appeal from the Judgment of Sentence Entered February 23, 2023

In the Court of Common Pleas of Columbia County Criminal Division at 

No(s): CP-19-CR-0000092-2022

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM PER CURIAM: FILED: JANUARY 4, 2024

Kathrine Ann Detwiler, Gary Robert Krum, and Elaine M. Barnhart 

(collectively, Appellants) appeal from their judgments of sentence,1 entered 

in the Court of Common Pleas of Columbia County, following their convictions 

of one count each of defiant trespass.

2

 After careful review, we affirm

Appellants’ judgments of sentence, and we vacate the stays of sentence.

3

On September 13, 2021, Detwiler, Krum, and Barnhart attended an 

advertised scheduled public meeting of the Southern Columbia School Board, 

at the Southern Columbia High School library. See N.T. Jury Trial, 1/13/23, 

at 65, 67. The public meeting was scheduled to begin at 7:00 p.m., and an 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Detwiler, Krum, and Barnhart were charged based upon the same factual 

scenario, proceeded to a consolidated jury trial, were represented by the same 

counsel, and now raise the same issues on appeal. Additionally, counsel for 

Appellants has filed nearly identical briefs at each docket. Accordingly, we 

consolidate these appeals sua sponte. See Pa.R.A.P. 513 (“[W]here the same 

question is involved in two or more appeals in different cases, [this Court] 

may . . . order them to be argued together in all particulars as if but a single 

appeal.”).

2 18 Pa.C.S.A. § 3503(b)(1)(v).

3 On March 20, 2023, the Appellants filed, with this Court, applications for stay 

of sentence at each of the above-captioned dockets. On April 13, 2023, this 

Court entered orders at each of the above-captioned dockets granting each 

application and staying each Appellant’s sentence. See Order, 4/13/23, at 1.
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executive session was scheduled to take place after the public meeting. Id. 

At an August 29, 2021 school board meeting, the Southern Columbia School 

District adopted a mask mandate that was still in effect at the time of the 

public meeting Appellants attended in September 2021.

4

 Id. at 63-64.

Superintendent Becker testified that the public meeting was to be 

recorded and streamed over the internet, as well as be open to all members 

of the public so long as they comported with the school board rules. Id. at 

65-66. Superintendent Becker further stated that an executive session is 

typically “closed doors,” and addresses more private functions such as student 

discipline, pending litigations, and personnel matters. Id. at 66.

On September 13, 2021, the date of the scheduled meeting, Detwiler, 

Krum, and Barnhart, as well as two other individuals, arrived not wearing

masks. Id. at 67, 112. Becker and School Security Officer David Townsend

were present to greet people as they arrived. Id. at 68, 112. School Officer 

Townsend had extra masks to provide to people who did not have a mask with 

them. Id. at 68, 113. As the group of five approached the library, they 

____________________________________________

4 James A. Becker, the superintendent at Southern Columbia, testified that on 

August 29, 2021, he met with the school board. Id. at 59-60. At the August 

29, 2021 meeting, the school board adopted the mask mandate pursuant to 

the American Rescue Plan Act of 2021 (ARP) PL 117-2, Section 2001(i)(1),

and the Center for Disease Control’s recommendations. See N.T. Jury Trial, 

1/13/23, at 59-63; see also ARP PL 117-2 § 2001(i)(1) (“A local educational 

agency receiving funds under this section shall develop and make publicly 

available on the local educational agency’s website, not later than 30 days 

after receiving the allocation of funds described in paragraph (d)(1), a plan 

for the safe return to in-person instruction and continuity of services.”). The 

mask mandate was effective immediately. Id.
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engaged in a discussion with School Officer Townsend, who advised them that 

they had to be masked in order to stay for the public meeting. Id. at 68-69, 

114. The members of the group refused to put on masks.

5

 Id. at 69, 114. 

School Officer Townsend again informed the group that they had to wear a 

mask or leave. Id. at 68-70, 113-15. Again, the Appellants refused either by 

stating so outright, or failing to put on a mask. Id. at 115. School Officer 

Townsend informed them that if they refused to mask, and refused to leave, 

he would need to call the police. Id. The Appellants, undeterred, continued 

their refusal to mask and refused to leave. Id.; see also id. at 138-39 

(School Officer Townsend testifying that, throughout evening, Krum stated he 

would not wear a mask, while Detwiler and Barnhart did not specifically state 

they would not wear a mask, but refused through their actions).

Superintendent Becker joined the conversation and told the group that 

they had to either put on masks or leave the premises. Id. at 70. He further 

advised the group that the school board had a mask mandate in effect. Id. 

He did not individually address any of the Appellants, but rather addressed all 

of them as a group. Id.; see also id. at 58 (Commonwealth stipulating

Appellants were not individually advised to wear masks). Still, Detwiler, 

Krum, and Barnhart refused to put on a mask and refused to leave. Id. at 

71. Ultimately, School Officer Townsend called the police. Id. at 115

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5

Initially, the two unidentified individuals also refused to wear masks. Id. at 

69. However, one of them ultimately put on a mask, and the other left the 

building. Id.; see also id. at 71.
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As a result, Superintendent Becker and the rest of the school board 

decided to conduct the executive session first. Id. In part, the school board 

hoped that the Appellants would either put on a mask or leave during the 

executive session; additionally, the school board discussed how to handle the 

situation. Id. at 71-73. While the executive session was conducted, 

Superintendent Becker advised that all members of the public should wait in 

the cafeteria, which was next door to the library. Id.

School Officer Townsend remained in the cafeteria with the members of 

the public until the conclusion of the executive session. Id. at 117. During 

this time, Officer Donald Spotts of the Locust Township Police Department6

responded to School Officer Townsend’s call.7 Id. at 115-16. Officer Spotts 

spoke with Krum, Detwiler, and Barnhart, as well as the other members of the 

public. Id. at 146-51. Officer Spotts informed the maskless individuals that 

the school had asked them to leave. Id. The Appellants still did not leave or 

put on a mask. Officer Spotts ultimately left the school in order to discuss the 

situation with the District Attorney. Id. at 131, 153-55.

Shortly after Officer Spotts left, School Officer Townsend continued 

talking to everyone in the cafeteria. Id. at 117-19. During this time, School 

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6 We note that the school in question is located in Franklin Township; however, 

per a municipal agreement, the Locust Township Police Department provides 

police services to the school. See id. at 146.

7 Officer Spotts wore a body cam, which recorded his interactions and was 

preserved and presented at trial. See id. at 101, 116 (wherein Officer Spotts’ 

body cam footage was presented as multiple separate exhibits, and played 

multiple times).
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Officer Townsend informed them that refusing to comply with the mask 

mandate is not a “traffic citation,” but rather a misdemeanor offense for 

defiant trespass. Id. at 118-19. Still, the Appellants refused to comply or 

leave. Id. Shortly thereafter, another unidentified member of the public 

asked the Appellants to leave because there was a concern that the school 

board would cancel the public meeting due to their actions. Id. A couple of 

minutes later, the Appellants left. Id. School Officer Townsend testified that 

the entire series of events occurred over the span of approximately 41 

minutes. Id. at 119. Ultimately, the public meeting occurred later that 

evening, after the Appellants had left. Id. at 74.

Officer Spotts re-entered the school, and informed School Officer 

Townsend that the DA was not planning to file charges since the Appellants

had already left the school. Id. at 154 (Officer Spotts reading police report). 

School Officer Townsend indicated that he would inform Superintendent 

Becker. Id. Subsequent to this event, the school board reached out the DA 

and informed him that the school board wished to press charges. Id. at 155-

56. 

On November 8, 2021, the Appellants were charged with one count each 

of defiant trespass. On April 1, 2022, the Appellants filed a joint petition for 

habeas corpus relief. On June 17, 2022, the trial court conducted a hearing, 

after which it denied Appellants’ habeas corpus petition. On January 13, 2023, 

the Appellants proceeded to a consolidated jury trial, after which they were 
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convicted as charged. The trial court deferred sentencing and ordered the 

preparation of pre-sentence investigation reports.

On February 23, 2023, the trial court conducted a sentencing hearing

and sentenced each Appellant to 12 months’ probation for their respective 

convictions of defiant trespass. Additionally, the trial court imposed, upon 

each Appellant, a $1,000 fine, and ordered them to pay the costs of 

prosecution, and to complete 50 hours of community service.

The Appellants did not file post-sentence motions. The Appellants filed 

timely notices of appeal and court-ordered Pa.R.A.P. 1925(b) concise 

statements of errors complained of on appeal. The Appellants now raise the 

following issues for our review:

[1.] Whether the trial court erred when it failed to dismiss the 

charge of defiant trespass . . . at the close of the Commonwealth’s 

case given that the Commonwealth stipulated that no actual 

communication was given to the Appellant[s] to leave school 

grounds by a school, center or program official, employee or agent 

or law enforcement officer?

[2.] Whether the Commonwealth failed to establish all the 

elements for defiant trespass . . . beyond a reasonable doubt given 

that the Commonwealth stipulated that no actual communication 

was given to the Appellant[s] to leave school grounds by a school, 

center or program official, employee or agent or law enforcement 

officer?

[3.] Whether the trial court erred in instructing the jury that the 

Southern Columbia Area School District possessed the legal 

authority to require students and visitors to wear face masks 

where no statutory or regulatory authority exists that confers to 

school districts the power or authority to force students and 

visitors to wear face masks?
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[4.] Where no statute or regulation authorizes public school 

districts to force students and visitors to wear masks, did the trial 

court err in instructing the jury that Southern Columbia Area 

School District had the authority to force students and visitors to 

wear face masks?

[5.] Whether the trial court erred when it failed to allow counsel 

for the Appellant[s] to present evidence of the school officials[’] 

violation of Federal law, 21 U.S.C. § 360bbb-3, which required 

them to provide informed consent to the Appellant[s] in order to 

require them to wear a face mask which school officials testified 

was the reason that the school officials wanted the Appellant[s] to 

leave the school premises on September 13, 2021.

[6.] Whether the trial court erred when it sustained the 

Commonwealth’s objection to the witness being questioned about 

the failure to provide informed consent in violation of 21 U.S.C. § 

360bbb-3 relating to the use of Emergency Use Authorized only 

devices such as face masks?

Briefs for Appellants, at 7-9.

We address Appellants’ first two issues together, as they are related. In 

their first issue, Appellants argue that the trial court erred in failing to grant 

their motion for acquittal at the close of the Commonwealth’s evidence. See

Briefs for Appellants, at 25-28. Appellants contend that the Commonwealth 

failed to satisfy any of the elements of the crime of defiant trespass. Id.

In their second issue, Appellants argue that Superintendent Becker and 

School Officer Townsend’s statements to “wear a mask or leave” did not 

constitute “communications” to leave school grounds. Id. at 29-34. 

Appellants acknowledge that “[t]here is no question that the [Appellants] 

heard [School] Officer Townsend and Superintendent Becker making the 

statements about masking or leaving.” Id. at 35. However, Appellants argue 

that “either or” statements are not “actual communications” as they are not 
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“clear, definitive, and understood by the recipient of the communication.” Id.

at 35-37. Appellants assert that it was reasonable for them to think they could 

wait for further directions. Id. at 36-41. Appellants posit that there was no 

evidence presented to the jury that they were asked to leave. Id. at 41-42.

Our standard of review is as follows:

A motion for judgment of acquittal challenges the sufficiency of 

the evidence to sustain a conviction on a particular charge, and is 

granted only in cases in which the Commonwealth has failed to 

carry its burden regarding that charge.

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial[,] in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact[,] while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part[,] or none of the evidence.

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super. 2017) 

(citation omitted).

The Crimes Code defines criminal trespass, in relevant part, as follows:

§ 3503. Criminal Trespass

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(b) Defiant trespasser.--

(1) A person commits an offense if, knowing that he is 

not licensed or privileged to do so, he enters or remains in 

any place as to which notice against trespass is given 

by:

* * *

(v) an actual communication to the actor to leave 

school grounds as communicated by a school, 

center or program official, employee or agent or a law 

enforcement officer[.]

18 Pa.C.S.A. § 3503(b)(1)(v) (emphasis added).

Appellants’ first and second claims are belied by the record. As we 

summarized above, it is clear the Commonwealth stipulated the Appellants 

were not individually warned to wear a mask or leave. See N.T. Jury Trial, 

1/13/23, at 58. However, the stipulation indicates that Appellants were 

warned as a group. See id. It is equally clear from trial testimony that the 

Appellants, along with two other individuals, were warned as a group about 

the school board policy to put on a mask or leave the premises. See id. at

68-70, 83-84, 113-15, 118-19, 138-39, 146-51. To the extent that Appellants 

argue these communications were unclear, we point out that these 

communications were clear enough to the two unnamed individuals, as they

each either put on a mask or left the school in response to the 

communications.

8

 See id. at 71; see also 115 (School Officer Townsend 

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8

It is unclear to this Court how an “either or” statement fails to satisfy the 

requirements of section 3503, or how an “either or” statement is unclear. See

(Footnote Continued Next Page)
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testifying unidentified female put on mask; unidentified male left school 

premises). Moreover, almost the entire sequence of events was caught either 

on surveillance video or on Officer Spotts’ body cam, or both. See id. at 86-

88 (Superintendent Becker testifying high school surveillance video accurately 

depicted events). These videos, combined with the accompanying testimony 

from Superintendent Becker, School Officer Townsend, Officer Spotts, and 

Krum, all reveal that the Appellants were informed numerous times that they 

had to either put on a mask, or leave the school. See id.; see also id. at 

101, 116 (Officer Spotts body cam being played at trial); Trial Court Opinion, 

4/24/23, at 1, 6.

For the same reasons, we are unpersuaded by Appellants’ arguments 

that they cannot be found guilty of defiant trespass because they were not 

individually informed of the mask mandate. See Briefs for Appellants, at 

35, 41-42. The language of section 3503 does not require each “actor” be 

separately and personally given notice to leave. See 1 Pa.C.S.A. § 1902 (“The 

singular shall include the plural, and the plural, the singular. Words used in 

the masculine gender shall include the feminine and neuter.”). Taking the 

evidence as a whole, and including the fact that Appellants conceded that they 

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Briefs for Appellants, at 35-37. As noted, the record before us clearly reflects 

that the two options presented to the Appellants were (1) put on a mask in 

accordance with the mask mandate; or (2) leave the school. See N.T. Jury 

Trial, 1/13/23, at 68-70, 83-84, 113-15, 118-19, 138-39, 146-51; id. at 106

(Superintendent Becker testifying that if Appellants had put on a mask, they 

would have been allowed to stay); see also Trial Court Opinion, 4/24/23, at 

1, 6. Because Appellants elected not to put on a mask, they only had one 

option remaining, to leave the school premises.
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were informed as a group and were all aware of the mask mandate, 

Appellants’ first two claims fail and they are afforded no relief.

We address Appellants’ third and fourth claims together as they are 

related. In their third and fourth claims, which Appellants raise together in 

their argument sections, Appellants argue that the trial court erred in issuing 

a jury instruction that the Southern Columbia Area School District had the 

authority to issue a mask mandate. See Briefs for Appellants, at 43-58. 

Appellants assert that the trial court’s instruction was an inaccurate statement 

of law because the school board expressly lacked the authority to issue a mask 

mandate pursuant to Corman v. Acting Secretary of Pennsylvania 

Department of Health, 266 A.3d 452 (Pa. 2021). See Briefs for Appellants, 

at 48-58.

Pennsylvania courts are generally afforded “broad discretion in phrasing 

[jury] instructions, and may choose [their] own wording so long as the law is 

clearly adequately and accurately presented to the jury for its consideration. 

Only where there is an abuse of discretion or an inaccurate statement of law 

is there reversible error.” Commonwealth v. Antidormi, 84 A.3d 738, 754 

(Pa. Super. 2014).

The trial judge gave the following jury instruction on mask mandates:

There’s another swirling issue and that is the power of school 

boards, what powers do school boards have. I’m telling you the 

law on this. . . . 

The legislature has delegated to the board of directors of any 

school district the power to permit use on the school grounds and 

buildings for certain proper purposes under such rules and 
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regulations as the board may adopt. The mask mandate adopted 

by the Southern Columbia Area school board on August 29, 2021, 

was a lawful exercise of that authority at that time and 

continuing through into September 13, 2021.

N.T. Jury Trial, 1/13/23, at 227-28 (emphasis added).

With regard to Appellants’ third and fourth claims, we rely upon and 

adopt the trial court’s thorough and well-written opinion.9 See Trial Court 

Opinion, 4/24/23, at 11-17. In so doing, we emphasize the trial court’s 

following analysis:

[T]his court is not a “super school board” which exists to second[-

]guess rules and regulations promulgated by school boards. As in 

[Duffield v. School Dist., 29 A. 742 (Pa. 1894)] and [Jacobson

v. Massachusetts, 197 U.S. 11 (1905)], where the courts noted 

that vaccinations may or may not have prevented smallpox, we 

can accept for purposes of this argument that masks may or may 

not mitigate the spread of COVID-19. We are not taking a position 

on that in this [o]pinion. As stated in Duffield, we are not 

adjudicating whether the wearing o[f] masks [is] “absolutely right 

or not.” . . . [A]gain to quote Duffield, we are to determine 

whether the [m]ask [m]andate was “reasonable in view of the 

[then-]present state of medical knowledge and the concurring 

opinions of the various boards and officers charged with the care 

of the public health.” Duffield, 29 A. at 743. More specifically, 

we find that one reasonable interpretation of the science at the 

time was that masks inhibit the spread of COVID-19, especially in 

view of the CDC Guidelines in effect at the adoption of the [m]ask 

[m]andate[, (Commonwealth Exhibit 2),] which expressed one 

scientific school of thought. . . . [T]he [school b]oard is the entity 

vested with broad discretion to make these policy decisions. . . . 

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9 Briefly, we note that in Corman, our Supreme Court declared the “Order of 

the Acting Secretary of the Pennsylvania Department of Health Directing Face 

Coverings in School Entities,” issued on September 9, 2021, (DoH Order) void 

ab initio. See Corman, supra. However, as we noted supra, the Southern 

Columbia Area school board enacted its mask mandate nine days before the 

DoH Order was issued. Further, the school board relied not upon the DoH 

Order, as the Appellants seem to suggest, but upon the CDC’s 

recommendations and the ARP. See supra, at n.3.
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It is not the function of this court to second-guess policies of the 

[school b]oard. 

Id. at 15-16 (emphasis in original).

The trial court, having so found, was well within its discretion to issue 

the jury instruction that the school board was within its authority to 

promulgate rules for Southern Columbia Area School District. See id. at 11-

17; see also Antidormi, supra. Accordingly, Appellants’ are afforded no 

relief on these claims.

10

In their fifth and sixth claims, which we address together, Appellants 

argue that the trial court erred in prohibiting evidence regarding the 

Emergency Use Authorization (EUA) of masks pursuant to Federal Food Drug 

and Cosmetic Act, particularly to 21 U.S.C. § 360bbb-3. See Briefs for 

Appellants, at 60-67. Appellants assert that under section 360bbb-3, a mask 

is a “product” and that administration of that “product,” even by a 

supermarket chain or, in this case, a school board, requires that the distributor 

inform the intended wearers of masks of the benefits and risks of wearing

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10 In so deciding, we are cognizant that this Court is expressly prohibited from 

being a “super school board.” See Regan, et al, v. Stoddard, et al, 65 A.2d 

240, 242 (Pa. 1949) (“a court is not a super Board of directors”); Detweiler 

v. School Dist. Of Borough of Hatfield, 104 A.2d 110 (Pa. 1954) (courts 

should not interfere with policy decisions of school authorities so long as they 

act in good faith within their statutory powers); see also Zebra v. School 

Dist. Of the City of Pittsburgh, 296 A.2d 748, 750 (Pa. 1972) (“It is only 

when the board transcends the limits of its legal discretion that it is amenable 

to the injunctive processes of a court of equity.”). Furthermore, we reiterate 

to the parties that this Court’s review is whether the trial court erred, not 

whether the school board’s policies exceeded the bounds of its legislative 

authority.
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masks. See Briefs for Appellants, at 60-67. Appellants contend that absent 

this “informed consent,” the school board acted outside the bounds of federal 

law. Id. at 65-67. 

Preliminarily, we rely upon and adopt the trial court’s analysis on these 

issues as well. See Trial Court Opinion, 4/24/23, at 17-20. Moreover, it is 

unclear from Appellants’ argument how this evidence is relevant to whether 

they were trespassing. See Commonwealth v. Collins, 888 A.2d 564, 57 

(Pa. Super. 2005) (“The threshold inquiry with admission of evidence is 

whether the evidence is relevant.”); Pa.R.E. 402 (“Evidence that is not 

relevant is not admissible.”); see also N.T. Jury Trial, 1/13/23, at 90-91 (trial 

court sustaining Commonwealth’s objection to this evidence as irrelevant). 

Appellants cite to no legal authority for their position. Appellants had no legal 

authority to support these claims at the time of trial, and they do not have 

any now. Consequently, Appellants are afforded no relief. The parties are 

directed to attach a copy of the trial court opinion in the event of further 

proceedings.
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Judgments of sentence affirmed. Stay of sentence vacated. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 1/4/2024
Circulated URIGI NAL 

COMMONWEALTH OF PENNSYLVANIA, 

vs. 

KATHERINE ANN DETWILER, 

Defendant 

:IN THE COURT OF COMMON PLEAS 

:OF THE 26TH JUDICIAL DISTRICT 

:COLUMBIA COUNTY BRANCH, PA 

:CRIMINAL DIVISION 

:NO. 15-CR-2022 

COMMONWEALTH OF PENNSYLVANIA, JN THE COURT OF COMMON PLEAS 

:OF THE 26T" JUDICIAL DISTRICT 

vs. :COLUMBIA COUNTY BRANCH, PA 

:CRIMINAL DIVISION 

GARY ROBERT KRUM, 

Defendant :NO. 16-CR-2022 

COMMONWEALTH OF PENNSYLVANIA, JN THE COURT OF COMMON-PLEAS 

:OF THE 26TH JUDICIAL DIS f-# T 

vs. :COLUMBIA COUNTY BRANCH) P• -• 

:CRIMINAL DIVISION 

ELAINE M. BARNHART, • r, --

Defendant :NO.92-CR-2022 i-• - rT1 

APPS NOES: y -; -- -< 

homas E. Leipold, Esq., on behalf of the Commonwealth - Vl a p( ` 

Grego ry A. Stapp, Esq., Attorney for the Defendants _ UIa Isf 005S U.S, ru 

April 24, 2023 Norton, P.J. 

OPINION PER PA.R.A.P. 1925 

These consolidated cases arise from an episode which occurred on September 

13, 2021 on the grounds of Southern Columbia Area School District ("Southern") 

beginning around 7:00 p.m. On that date and time, a Southern school board (the 

"Board") meeting had been properly advertised and was scheduled to occur in a school 

library. The Defendants were told multiple times that they were required to wear a 

mask or leave pursuant to Board policy. The Defendants did not leave until about 41 

minutes passed and only after a municipal police officer was summoned to the school. 

• 

·- ORIGINAL 

COMMONWEALTH OF PENNSYLVANIA, 

KA THERINE ANN DETWILER, 

Defendant 

IN THE COURT OF COMMON PLEAS 

OF THE 28" JUDICIAL DISTRICT 

.COLUMBIA COUNTY BRANCH, PA 

.CRIMINAL DIVISION 

.NO. 15-CR-2022 

COMMONWEALTH OF PENNSYLVANIA, 

GARY ROBERT KRUM, 

Defendant 

IN THE COURT OF COMMON PLEAS 

·OF THE 26" JUDICIAL DISTRICT 

:COLUMBIA COUNTY BRANCH. PA 

·CRIMINAL DIVISION 

.NO. 16-CR-2022 

·NO. 92-CR-2022 

COMMONWEAL TH OF PENNSYLVANIA, 

ELAINE M. BARNHART, 

Defendant 

IN THE COURT OF COMMON PLEAS 

OF THE 26" JUDICIAL DISTRICT2' 

·COLUMBIA COUNTY BRANCH Pf 7 

CRIMINAL DIVISION g 

e ' , 

t 

es» E t 

e or 

zt 

cc C 

APPEARANCES: FR 2 < 

{Io"as E, Leipold, Esa.. on behalf of the commonweah - ia Pai, B' 

Gregory A. Stapp, Esq., Attorney for the Defendants - tja 'gt(l0gs US, t] 

Aprit 24, 2023 Norton, P.J. 

OPINION PER PA.R.A.P. 1925 

These consolidated cases arise from an episode which occurred on September 

13, 2021 on the grounds of Southern Columbia Area School District ("Southern") 

beginning around 7.00 p.m. On that date and time, a Southern school board (the 

"Board") meeting had been properly advertised and was scheduled to occur in a school 

library. The Defendants were told multiple times that they were required to wear a 

mask or leave pursuant to Board policy, The Defendants did not leave until about 41 

minutes passed and only after a municipal police officer was summoned to the school 
The Defendants were each charged with one count of Defiant Trespass ( M-1) under 

§3503(b)(1)(v) of the Crimes Code: 

§ 3503. Criminal trespass.... 

(b) Defiant trespasser. 

(1) A person commits an offense if, knowing that he is not 

licensed or privileged to do so, he enters or remains in any 

place as to which notice against trespass is given by:... 

(v) an actual communication to the actor to leave school 

grounds as communicated by a school, center or program 

official, employee or agent or a law enforcement officer.... 

18 Pa.C.S. § 3503(b)(1)(v). The relevant section also provides this defense: 

(c) Defenses. — It is a defense to prosecution under this section that:... 

(2) the premises were at the time open to members of the public and the 

actor complied with all lawful conditions imposed on access to or 

remaining in the premises.... 

18 Pa.C.S. § 3503(c)(2). Of note, considering the first two of the Defendants' 

assignments of error, is that nowhere in the statute does it say that an "actual 

communication" must occur by segregating the Defendant away from all other people to 

effect a one-on-one communication. After a jury trial on January 13, 2023, each of the 

Defendants were convicted of the single count of Defiant Trespass ( M-1) charged 

against them. Each Defendant was sentence on February 23, 2023 to pay the costs of 

prosecution, a fine of $ 1,000.00, to undergo 12 months of probation and to render 50 

hours of community service. 

On April 1, 2022, the Defendants filed a Petition for Writ of Habeas Corpus in 

each of the three ( 3) above captioned cases, all of which have been consolidated. The 

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The Defendants were each charged with one count of Defiant Trespass (M-1) under 

$3503(b)(1)(v) of the Crimes Code: 

$ 3503. Criminal trespass.... 

(b) Defiant trespasser. 

(1)A person commits an offense if, knowing that he is not 

licensed or privileged to do so, he enters or remains in any 

place as to which notice against trespass is given by: ... 

(v) an actual communication to the actor to leave school 

grounds as communicated by a school, center or program 

official, employee or agent or a law enforcement officer.... 

18Pa.C.S. $ 3503(b)(1v). The relevant section also provides this defense: 

(c) Defenses. It is a defense to prosecution under this section that. ... 

(2) the premises were at the time open to members of the public and the 

actor complied with all lawful conditions imposed on access lo or 

remaining in the premises.... 

18Pa.CS. $3503(c)(2). Of note, considering the first two of the Defendants' 

assignments of error, is that nowhere in the statute does it say that an "actual 

communication" must occur by segregating the Defendant away from all other people to 

effect a one-on-one communication. After a jury trial on January 13, 2023, each of the 

Defendants were convicted of the single count of Defiant Trespass (M-1) charged 

against them. Each Defendant was sentence on February 23, 2023 to pay the costs of 

prosecution, a fine of $1,000.00, to undergo 12 months of probation and to render 50 

hours of community service. 

On April 1, 2022, the Defendants filed a Petition for Writ of Habeas Corpus in 

each of the three (3) above captioned cases, all of which have been consolidated. The 

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1. 

issue at a hearing on a Petition for Writ of Habeas Corpus is whether the 

Commonwealth can prove a prima facie case. To meet this burden, the 

Commonwealth must present some evidence, which, if believed, would satisfy the 

elements of the crime charged: 

A prima facie case consists of evidence showing the existence of each 

material element of the charged offense(s) and probable cause to believe 

the defendant committed the crime(s) such that, if the evidence were 

presented at trial, the court would be warranted in submitting the case to 

the factfinder. Commonwealth v. Landis, 2012 PA Super 132, 48 A.3d 

432, 444 ( Pa. Super. 2012). If a defendant wishes to challenge the 

sufficiency of the evidence that was adduced during a preliminary hearing, 

the defendant may file a pretrial petition for a writ of habeas corpus in 

Common Pleas Court. Id. The Commonwealth's duty at the habeas stage 

is, once again, to present a prima facie case. Id. 

Commonwealth v. Claffey, 2013 PA Super 155, 80 A.3d 780, 788 (2013). In passing 

upon that burden, the courts must accept all facts in a light most favorable to the 

Commonwealth. Commonwealth v. Hendricks, 2007 PA Super 187, 927 A.2d 289, 291 

(2007). The same standard is applied upon a defense demurrer or a motion for 

judgment of acquittal at the close of the Commonwealth's case in chief, which is the 

subject of the Defendants' first assignment of error. 

The first Commonwealth witness at trial was Southern Superintendent, James 

Becker. Mr. Becker testified that the Board adopted a Health and Safety Plan ( Ex. C-1) 

on August 29, 2021 (the " Health Plan"). The Health Plan was mandated by the federal 

American Rescue Plan Act §2001(i)(1) ( Public Law 117-2, 135 Stat. 4), which required 

such plans to coordinate resumption of in- person instruction and activities in public 

schools after COVID-19 related shut-downs. Item 3.a. of the Health Plan adopted by 

the Board on August 29, 2021 states that Southern requires the "[u]niversal and correct 

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issue at a hearing on a Petition for Writ of Habeas Corpus is whether the 

Commonwealth can prove a prima facie case. To meet this burden, the 

Commonwealth must present some evidence, which, if believed, would satisfy the 

elements of the crime charged: 

A prima facie case consists of evidence showing the existence of each 

material element of the charged offense(s) and probable cause to believe 

the defendant committed the crime(s) such that, if the evidence were 

presented at trial, the court would be warranted in submitting the case to 

the factfinder. Commonwealth v, Landis, 2012 PA Super 132, 48 A.3d 

432, 444 (Pa. Super. 2012). If a defendant wishes to challenge the 

sufficiency of the evidence that was adduced during a preliminary hearing, 

the defendant may file a pretrial petition for a writ of habeas corpus in 

Common Pleas Court. Id. The Commonwealth's duty at the habeas stage 

is, once again, to present a prima facie case. Id. 

Commonwealth v. Claffey, 2013 PA Super 155, 80 A.3 780, 788 (2013). In passing 

upon that burden, the courts must accept all facts in a light most favorable to the 

Commonwealth. Commonwealth v. Hendricks, 2007 PA Super 187, 927 A.2d 289, 291 

(2007). The same standard is applied upon a defense demurrer or a motion for 

judgment of acquittal at the close of the Commonwealth's case in chief, which is the 

subject of the Defendants' first assignment of error. 

The first Commonwealth witness at trial was Southern Superintendent, James 

Becker. Mr. Becker testified that the Board adopted a Health and Safety Plan (Ex. C-1) 

on August 29, 2021 (the "Health Plan"). The Heath Plan was mandated by the federal 

American Rescue Plan Act $2001(1)(1) (Public Law 117-2, 135 Stat. 4), which required 

such plans to coordinate resumption of in-person instruction and activities in public 

schools after €OVID-19 related shut-downs. Item 3.a. of the Health Plan adopted by 

the Board on August 29, 2021 states that Southern requires the "[u]niversal and correct 

3 
wearing of masks" as one tactic to be employed to resume in person presence at 

Southern's school buildings. The Health Plan further states: "The District will mandate 

masking in all buildings for all students, staff, and visitors regardless of vaccination 

status." Collectively, these masking requirements adopted by the Board in the Health 

Plan will be referred to as the "Mask Mandate." 

The Defendants cite and heavily argued the "Order of the Acting Secretary of the 

Pennsylvania Department of Health Directing Face Coverings in School Entities" ( Ex. D1, hereafter, the " DoH Order;" herein, " DoH" shall refer to the Pennsylvania Department 

of Health). On cross examination, Mr. Becker authenticated the DoH Order and it was 

confirmed that it was issued on September 7, 2021, nine ( 9) days afterthe Health Plan 

was approved by the Board. The DoH Order was declared void ab initio by the 

Pennsylvania Commonwealth Court on November 10, 2021 (Corman v. Actinq Sec'y of 

the Pa. Dep't of Health, 267 A.3d 561, 568, 2021 Pa. Commw. LEXIS 574, *4 (2021)). 

The Pennsylvania Supreme Court affirmed the Commonwealth Court on December 10, 

2021 (Corman v. Acting Secy. of the Pa. Dep't of Health, 2021 Pa. LEXIS 4348, 266 

A.3d 452 (2021)). The Supreme Court held that the DoH did not follow the process 

required for issuance of the DoH Order and, as such, it was invalid and void ab initio. 

Corman did not adjudicate the prerogative of local school districts to erect protective 

conditions to the entry to or presence within school buildings such as mask wearing. 

Since the DoH Order was not in effect when the Mask Mandate was adopted, and given 

that it is void ab initio, the DoH Order and its masking requirement are inapposite to this 

case. Also of note is the fact that the Mask Mandate was promulgated under an act of 

4 

wearing of masks" as one tactic to be employed to resume in person presence at 

Souther's school buildings. The Health Plan further states: The District will mandate 

masking in all buildings for all students, staff, and visitors regardless of vaccination 

status." Collectively, these masking requirements adopted by the Board in the Health 

Plan will be referred to as the "Mask Mandate. 

The Defendants cite and heavily argued the Order of the Acting Secretary of the 

Pennsylvania Department of Health Directing F ace Coverings in School Entities" (Ex. D1, hereafter, the "DoH Order;" herein, "DOH" shall refer to the Pennsylvania Department 

of Health). On cross examination, Mr. Becker authenticated the DoH Order and it was 

confirmed that it was issued on September 7, 2021, nine (9) days after the Health Plan 

was approved by the Board. The DoH Order was declared void ab initio by the 

Pennsylvania Commonwealth Court on November 10, 2021 (Corman v. Acting Sec'y of 

the Pa. Dep't of Health, 267 A.3d 561, 568, 2021 Pa. Commw. LEXIS 574, 4 (2021)) 

The Pennsylvania Supreme Court affirmed the Commonwealth Court on December 10, 

2021 (Corman v,Acting Secy. of the Pa. Dep't of Health, 2021 Pa. LEXIS 4348, 266 

A.3d 452 (2021)). The Supreme Count held that the DoH did not follow the process 

required for issuance of the DoH Order and, as such, it was invalid and void ab initio. 

Gorman did not adjudicate the prerogative of local school districts to erect protective 

conditions to the entry to or presence within school buildings such as mask wearing. 

Since the DoH Order was not in effect when the Mask Mandate was adopted, and given 

that it is void ab initio, the DoH Order and its masking requirement are inapposite to this 

case. Also of note is the fact that the Mask Mandate was promulgated under an act of 
Congress (the American Rescue Plan Act) and not under the rule making authority of 

the DoH which was determined in Corman to have been inappropriately exercised by 

the DoH. The jury was instructed on the dates, contents and legal effects (or, as to the 

DoH Order, the void ab initio effect) of the Health Plan, the DoH Order and the District 

Attorney's Memorandum dated September 9, 2021 relating to trespassing and mask 

mandates ( Ex. D-9). 

Mr. Becker next authenticated Ex. C-2, the CDC mask wearing recommendation 

of August 12, 2021, issued 17 days before the Mask Mandate was adopted by the 

Board (the "CDC Guideline"). Mr. Becker confirmed that the CDC Guideline 

recommended that masks should be worn as one means of protecting against the 

transmittal of COVID-19 and that the Mask Mandate was drafted not exclusively based 

upon, but in consideration of, that CDC Guideline. The Health Plan ( Ex. C-1) 

references CDC guidelines and specifically states that "CDC and PA DoH 

recommendations will be implemented to the extent practicable for mitigation policies in 

line with the most up to date guidance." ( Ex. C-1, p. 5 of 7). It is clear that, on August 

29, 2021 and September 13, 2021, the most up to date recommendation from the CDC 

was for people to wear masks in all indoor public settings. 

Mr. Becker testified that a Board meeting was advertised to be held in the school 

library on September 13, 2021 at 7:00 p.m. The three ( 3) Defendants and two (2) other 

persons entered the library without masks along with several other members of the 

public who did wear masks. Mr. Becker stated that school security Officer David 

Townsend approached those without masks and told them that there was a school-wide 

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Congress (the American Rescue Plan Act) and not under the rule making authority of 

the DoH which was determined in Gorman to have been inappropriately exercised by 

the DoH. The jury was instructed on the dates, contents and legal effects (or, as to the 

DoH Order, the void ab initip effect) of the Health Plan, the DoH Order and the District 

Attorney's Memorandum dated September 9, 2021 relating to trespassing and mask 

mandates (Ex. D-9). 

Mr. Becker next authenticated Ex. C-2, the CDC mask wearing recommendation 

of August 12, 2021, issued 17 days before the Mask Mandate was adopted by the 

Board (the CDC Guideline). Mr. Becker confirmed that the CDC Guideline 

recommended that masks should be worn as one means of protecting against the 

transmittal of COVID-19 and that the Mask Mandate was drafted not exclusively based 

upon, but in consideration of, that CDC Guideline. The Health Plan (Ex. C-1) 

references CDC guidelines and specifically states that CDC and PA DoH 

recommendations will be implemented to the extent practicable for mitigation policies in 

line with the most up to date guidance." (Ex. C-1, p. 5 of 7). It is clear that, on August 

29, 2021 and September 13, 2021, the most up to date recommendation from the CDC 

was for people to wear masks in all indoor public settings 

Mr. Becker testified that a Board meeting was advertised to be held in the school 

library on September 13, 2021 at 7.00 p.m. The three (3) Defendants and two (2) other 

persons entered the library without masks along with several other members of the 

public who did wear masks. Mr. Becker stated that school security Officer David 

Townsend approached those without masks and told them that there was a school-wide 

5 
k 

masking policy and that they would need to wear a mask or leave the building. Of the 

five ( 5) members of the public who were not wearing masks, one ( 1) person left, one ( 1) 

person put a mask on and the three ( 3) Defendants did not put on a mask and did not 

leave. According to Mr. Becker, Officer Townsend told the three (3) Defendants again 

that they needed to wear a mask or leave the premises. Mr. Becker himself also told 

the Defendants that they needed to wear a mask or leave. These multiple 

communications of " mask or leave" were given by Mr. Becker and Officer Townsend to 

the group of three (3) Defendants, who were together in a group. The Defendants did 

not " mask or leave" for a period of at least 41 minutes. At trial, the DA stipulated to the 

same facts to which he stipulated at the Habeas Corpus hearing on June 17, 2022: 

"We would stipulate there was no personal directive given to any or each 

of the three Defendants individually." 

(Hereafter, the "Stipulation"). 

At trial, the DA brought out evidence from Mr. Becker, Officer David Townsend 

and township police officer Donald Spotts that the Defendants were present and were 

collectively and actually told as a group that they were required to put on a mask or 

leave the premises. The DA argued that the Stipulation only was intended to agree that 

the Defendants were not individually segregated and individually told, one-by-one, that 

they had to mask or leave. The defense argued to the jury otherwise. By returning a 

verdict of guilty, the jury accepted the DA's argument and interpretation that, using the 

language of the statute, the Defendants were told to leave by "actual communication." 

The Defendants' first assignment of error states that the "Commonwealth stipulated that 

no actual communication was given to the Defendant[s] to leave school grounds...." 

6 

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masking policy and that they would need to wear a mask or leave the building. Of the 

five (5) members of the public who were not wearing masks, one (1) person left, one (1) 

person put a mask on and the three (3) Defendants did not put on a mask and did not 

leave. According to Mr. Becker, Officer Townsend told the three (3) Defendants again 

that they needed to wear a mask or leave the premises, Mr. Becker himself also told 

the Defendants that they needed to wear a mask or leave. These multiple 

communications of mask or leave" were given by Mr. Becker and Officer Townsend to 

the group of three (3) Defendants, who were together in a group. The Defendants did 

not "mask or leave for a period of at least 41 minutes. At trial, the DA stipulated to the 

same facts to which he stipulated at the Habeas Corpus hearing on June 17, 2022: 

We would stipulate there was no personal directive given to any or each 

of the three Defendants individually. 

(Hereafter, the Stipulation") 

At trial, the DA brought out evidence from Mr. Becker, Officer David Townsend 

and township police officer Donald Spotts that the Defendants were present and were 

collectively and actually told as a group that they were required to put on a mask or 

leave the premises, The DA argued that the Stipulation only was intended to agree that 

the Defendants were not individually segregated and individually told, one-by-one, that 

they had to mask or leave. The defense argued to the jury otherwise. By returning a 

verdict of guilty, the jury accepted the DA's argument and interpretation that, using the 

language of the statute, the Defendants were told to leave by "actual communication." 

The Defendants' first assignment of error states that the Commonwealth stipulated that 

no actual communication was given to the Defendant[s] to leave school grounds.... 
This is a blatantly false statement of the Stipulation which was stated. The Stipulation 

was as is quoted above. 

In response to the brewing issue, and to allow for dealing with the refusal of the 

Defendants to mask or leave, Mr. Becker testified that he took the Board into executive 

session, which occurs under Board past practice by excusing all non-Board members 

from the library to the cafeteria. At that, the public, including the three (3) Defendants, 

went to the cafeteria. The Defendants were the only persons in the cafeteria without 

masks. Mr. Becker stated that the executive session lasted approximately 45 minutes. 

After the executive session was concluded, Mr. Becker invited the public back into the 

library for the conduct of the public meeting. At that time, about 45 minutes later, the 

Defendants were not among the members of the public who returned from the cafeteria 

to the library and they had apparently left by that time. 

Officer Townsend, the Commonwealth's second witness, testified that, on 

September 13, 2021, he was a school security officer at Southern. After September 13, 

2021, his job title changed to school police officer. Therefore, Officer Townsend did not 

have arrest powers on September 13, 2021. Officer Townsend stated that he observed 

a group of five ( 5) persons without masks, including the three (3) Defendants herein, 

enter the school library to attend the Board meeting on September 13, 2021. Officer 

Townsend testified that he told all five ( 5) of those persons without masks that they 

needed to mask or leave the premises. Officer Townsend specifically offered a mask to 

the Defendant Krum, and, according to Officer Townsend's testimony, Defendant Krum 

explicitly said: " I will not wear a mask." Of the five ( 5) persons who were unmasked, 

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This is a blatantly false statement of the Stipulation which was stated. The Stipulation 

was as is quoted above 

In response to the brewing issue, and to allow for dealing with the refusal of the 

Defendants to mask or leave, Mr Becker testified that he took the Board into executive 

session, which occurs under Board past practice by excusing all non-Board members 

from the library to the cafeteria. At that, the public, including the three (3) Defendants, 

went to the cafeteria. The Defendants were the only persons in the cafeteria without 

masks. Mr. Becker stated that the executive session lasted approximately 45 minutes. 

After the executive session was concluded, Mr. Becker invited the public back into the 

library for the conduct of the public meeting. At that time, about 45 minutes later, the 

Defendants were not among the members of the public who returned from the cafeteria 

to the library and they had apparently left by that time. 

Officer Townsend, the Commonwealth's second witness, testified that, on 

September 13, 2021, he was a school security officer at Souther. After September 13, 

2021, his job title changed to school police officer. Therefore, Officer Townsend did not 

have arrest powers on September 13, 2021, Officer Townsend stated that he observed 

a group of five (5) persons without masks, including the three (3) Defendants herein, 

enter the school library to attend the Board meeting on September 13, 2021. Officer 

Townsend testified that he told all five (5) of those persons without masks that they 

needed to mask or leave the premises. Officer Townsend specifically offered a mask to 

the Defendant Krurn, and, according to Officer Townsend's testimony, Defendant Krum 

explicitly said: "I will not wear a mask." Of the five (5) persons who were unmasked, 

7 
one ( 1) left, one ( 1) put on a mask and three ( 3), the Defendants herein, did neither: 

They stayed inside the school building and did not put on a mask. When Officer 

Townsend told the three ( 3) Defendants that he would call the police if they did not 

mask or leave, Defendant Detwiler told Officer Townsend: "go ahead and call the cops 

or whomever you need to call," or something to that effect. The various video evidence 

entered into the record and shown to the jury also clearly shows that someone in the 

Defendants' group stated, in the cafeteria after the Board went into executive session, 

that they were engaging in "civil disobedience." Defendant Krum was on video 

extensively arguing to Officers Townsend and Spotts regarding his " rights" and that the 

Board did not have the power to impose a " mask or leave" mandate. On the video, 

Defendant Krum argued: " It's not a law, it's just a mandate."' It was clear that 

Defendant Krum knew that he was required to mask or leave and that moving the group 

to the cafeteria did not somehow rescinded the " mask or leave" order. Defense counsel 

argued, and Defendant Krum disingenuously testified, that the Defendants thought that, 

when the Board went into executive session, the authorities were permitting the 

Defendants to remain on school premises ( in the cafeteria) without masks. The video 

evidence clearly belies that argument and interpretation, and the jury's verdict illustrates 

that they did not buy that specious argument and interpretation. Eventually, Officer 

Townsend did call the municipal police. 

Officer Spotts from the Locust Township Police Department arrived about twenty 

(20) minutes into the episode, according to Officer Townsend's testimony. Officer 

This court is still trying to figure out the relevance of that thin or non-existent 

distinction. 

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one (1) left, one (1) put on a mask and three (3), the Defendants herein, did neither: 

They stayed inside the school building and did not put on a mask, When Officer 

Townsend told the three (3) Defendants that he would call the police if they did not 

mask or leave, Defendant Detwiler told Officer Townsend: "go ahead and call the cops 

or whomever you need to call," or something to that effect. The various video evidence 

entered into the record and shown to the jury also clearly shows that someone in the 

Defendants' group stated, in the cafeteria after the Board went into executive session, 

that they were engaging in civil disobedience." Defendant Krum was on video 

extensively arguing to Officers Townsend and Spotts regarding his rights" and that the 

Board did not have the power to impose a mask or leave mandate. On the video, 

Defendant Krum argued: It's not a law, it's just a mandate."It was clear that 

Defendant Krum knew that he was required to mask or leave and that moving the group 

to the cafeteria did not somehow rescinded the "mask or leave order. Defense counsel 

argued, and Defendant Krum disingenuously testified, that the Defendants thought that, 

when the Board went into executive session, the authorities were permitting the 

Defendants to remain on school premises (in the cafeteria) without masks. The video 

evidence clearly belies that argument and interpretation, and the jury's verdict illustrates 

that they did not buy that specious argument and interpretation. Eventually, Officer 

Townsend did call the municipal police 

Officer Spotts from the Locust Township Police Department arrived about twenty 

(20) minutes into the episode, according to Officer Townsend's testimony. Officer 

This court is still trying to figure out the relevance of that thin or non-existent 

distinction. 

8 
Townsend met Officer Spotts in front of the school, told Officer Spotts what was going 

on and the two (2) officers walked into the school together. By that time, the public, 

including the three (3) Defendants, had been excused from the library to the cafeteria 

due to the executive session that had been called. Officer Spotts and Officer 

Townsend went to the cafeteria and again told all three ( 3) Defendants that they were 

required to either mask or leave. When told that non-compliance would result in a 

Defiant Trespass charge, one person in the group of three (3) Defendants said to the 

effect: "Oh, that's just a traffic citation," to which Officer Townsend told the group of 

three (3) Defendants to the effect of: " No, it is not just a traffic citation." 

This standoff went on from start to finish for a period of about 41 minutes. 

Officer Townsend testified that the three ( 3) Defendants did leave after 41 minutes. 

The Defendants left immediately after another member of the public in the cafeteria 

complained to them, telling them to mask or leave, because he wanted to get on with 

and attend the school Board meeting. With that, 41 minutes into the episode and, 

according to Officer Townsend, about 20 minutes after Officer Spotts arrived, the 

Defendants left. 

To summarize the facts, the evidence would permitted a finding that the Board, 

on August 29, 2021, promulgated a requirement that all individuals in school buildings, 

with exceptions not claimed on this record, be masked (the Health Plan, Ex. C-1). The 

Board relied upon then current CDC Guidelines ( Ex. C-2), as explicitly set forth in the 

Health Plan ( Ex. C-1). The CDC Guideline included recommendations that persons 

wear masks to inhibit the spread of COVID-19. It is clear that the CDC Guideline was a 

9 

Townsend met Officer Spotts in front of the school, told Officer Spotts what was going 

on and the two (2) officers walked into the school together. By that time, the public, 

including the three (3) Defendants, had been excused from the library to the cafeteria 

due to the executive session that had been called. Officer Spotts and Officer 

Townsend went to the cafeteria and again told all three (3) Defendants that they were 

required to either mask or leave. When told that non-compliance would result in a 

Defiant Trespass charge, one person in the group of three (3) Defendants said to the 

effect: "Oh, that's just a traffic citation," to which Officer Townsend told the group of 

three (3) Defendants to the effect of: "No, it is not just a traffic citation. 

This standoff went on from start to finish for a period of about 41 minutes. 

Officer Townsend testified that the three (3) Defendants did leave after 41 minutes. 

The Defendants left immediately after another member of the public in the cafeteria 

complained to them, telling them to mask or leave, because he wanted to get on with 

and attend the school Board meeting. With that, 41 minutes into the episode and, 

according to Officer Townsend, about 20 minutes after Officer Spotts arrived, the 

Defendants left. 

To summarize the facts, the evidence would permitted a finding that the Board, 

on August 29, 2021, promulgated a requirement that all individuals in school buildings, 

with exceptions not claimed on this record, be masked (the Health Plan, Ex. C-1). The 

Board relied upon then current CDC Guidelines (Ex. C-2), as explicitly set forth in the 

Health Plan (Ex. C-1). The CDC Guideline included recommendations that persons 

wear masks to inhibit the spread of COVID-19. It is clear that the CDC Guideline was a 

9 
recommendation, but it is equally clear that the Mask Mandate in the Health Plan 

promulgated by the Board was a requirement. By virtue of its guideline, the CDC, an 

authoritative scientific body, illustrated its opinion that masking impeded the 

transmission of COVID to some degree. The Defendants entered the school building 

without masks and were told collectively by "actual communication" multiple times by 

Superintendent Becker, Officer Townsend and Officer Spotts to " mask or leave," and 

they were expressly advised of the school Board policy in that regard. They did not 

leave immediately, dared the school security officer to call the police, Defendant Krum 

expressly refused to wear a mask and the three (3) Defendants stayed 41 minutes 

through the incident and 20 minutes after police Officer Spotts arrived. They only left 

after a fellow member of the public complained to them and asked them to mask or 

leave so that everyone could get on with the school board meeting. 

In their Concise Statements of Matters Complained of on Appeal, the 

Defendants assert 6 issues. The will be dealt with in sequence, paraphrasing the 

issues: 

1. This court erred in failing to grant the defense motion to dismiss at the 

close of the Commonwealth's case due to the Defendants' claim that the 

"Commonwealth stipulated that no actual communication was given the 

Defendant[s] to leave school grounds...." 

This assignment of error is falsely stated. The Stipulation was: "We would 

stipulate there was no personal directive given to any or each of the three Defendants 

individually." That is a far cry from stipulating away the Commonwealth's case by 

saying that no "actual communication" occurred. By rendering its verdict, the jury 

accepted the Commonwealth's argument that the Defendants were actually and 

10 

recommendation, but it is equally clear that the Mask Mandate in the Health Plan 

promulgated by the Board was a requirement. By virtue of its guideline, the CDC, an 

authoritative scientific body, illustrated its opinion that masking impeded the 

transmission of COVID to some degree. The Defendants entered the school building 

without masks and were told collectively by actual communication" multiple times by 

Superintendent Becker, Officer Townsend and Officer Spotts to "mask or leave," and 

they were expressly advised of the school Board policy in that regard. They did not 

leave immediately, dared the school security officer to call the police, Defendant Krum 

expressly refused to wear a mask and the three (3) Defendants stayed 41 minutes 

through the incident and 20 minutes after police Officer Spotts arrived. They only left 

after a fellow member of the public complained to them and asked them to mask or 

leave so that everyone could get on with the school board meeting. 

In their Concise Statements of Matters Complained of on Appeal, the 

Defendants assert 6 issues. The will be dealt with in sequence, paraphrasing the 

issues 

f, This court erred in failing to grant the defense motion to dismiss at the 

close of the Commonwealth's case due to the Defendants' claim that the 

Commonwealth stipulated that no actual communication was given the 

Defendant[s] to leave school grounds...." 

This assignment of error is falsely stated. The Stipulation was: "We would 

stipulate there was no personal directive given to any or each of the three Defendants 

individually." That is a far cry from stipulating away the Commonwealth's case by 

saying that no "actual communication" occurred. By rendering its verdict, the jury 

accepted the Commonwealth's argument that the Defendants were actualy and 

10 
collectively communicated the directive to mask or leave. This was a question for the 

jury and the jury answered it by rendering their verdict of "guilty." 

2. The second assignment of error is essentially the same as the first and 

that discussion is hereby incorporated by reference. 

3. This court erred in instructing the jury that the Southern School Board 

had the legal authority to require persons on school premises to wear face 

masks. 

School districts are granted broad general powers to enable them to carry out 

the provisions of the Pennsylvania School Code, found at 24 P.S. § 1-101 et seq.:

§ 2-211. General powers of districts 

The several school districts in this Commonwealth shall be, and hereby 

are vested as, bodies corporate, with all necessary powers to enable them 

to carry out the provisions of this act. 

24 P.S. § 2-211. These include powers specifically granted by the legislature or by 

necessary implication. Central Dauphin School District v. American Cas. Co., 271 

Pa.Super. 218, 412 A.2d 892 ( 1979), rev'd. on other grounds, 493 Pa. 254, 426 A.2d 

94. A school district's powers are administered by a board of school directors. 24 P.S. 

§ 3-301. 

Among the several express and implied powers of a school board is the power to 

provide for and administer necessary and suitable school buildings. 24 P.S. § 7-701. 

School boards are vested with broad discretion to adopt " rules and regulations as [they] 

may deem necessary and proper' as to all functions delegated to them under the 

School Code, including those as to regulation of presence on school grounds. 24 P.S. 

Z1 

collectively communicated the directive to mask or leave. This was a question for the 

jury and the jury answered it by rendering their verdict of "guilty. 

2. The second assignment of error is essentially the same as the first and 

that discussion is hereby incorporated by reference. 

3. This court erred in instructing the jury that the Southern School Board 

had the legal authority to require persons on school premises to wear face 

masks. 

School districts are granted broad general powers to enable them to carry out 

the provisions of the Pennsylvania School Code, found at 24P.S. $ 1-101 gt Se 

$2-211. General powers of districts 

The several school districts in this Commonwealth shall be, and hereby 

are vested as, bodies corporate, with all necessary powers to enable them 

to carry out the provisions of this act. 

24PS.$2211. These include powers specifically granted by the legislature or by 

necessary implication. Central Dauphin School District • American Cas. Co,, 271 

Pa.Super. 218, 412 A.2d 892 (1979), rev'd. on other grounds, 493 Pa. 254, 426 A.2d 

94. A school district's powers are administered by a board of school directors. 24 P.S. 

$ 3-301. 

Among the several express and implied powers of a school board is the power to 

provide for and administer necessary and suitable school buildings. 24P.S. $ 7.701, 

School boards are vested with broad discretion to adopt rules and regulations as [they] 

may deem necessary and proper as to all functions delegated to them under the 

School Code, including those as to regulation of presence on school grounds. 24 P.S. 
§ 5-510, considered in conjunction with § 7-701. The power of a school board to 

promulgate rules and regulations regarding school buildings has indeed been delegated 

by the legislature, is plenary, and is subject to a broad exercise of discretion: 

The legislature has delegated to the board of school directors of any 

school district the power to permit use of the school grounds and buildings 

for certain proper purposes under such rules and regulations as the board 

may adopt. Judicial review of the actions of a board must be restricted to 

the reasonableness thereof: Regan, et al. v. Stoddard, et al., 361 Pa. 469, 

65 A. 2d 240; Commonwealth ex rel. v. Sunbury School District, 335 Pa. 

6, 6 A. 2d 279; Wilson v. School District of Philadelphia, 328 Pa. 225, 195 

A. 90. It cannot encompass consideration of the wisdom of the action 

taken. 

McKnight v. Board of Public Education, 365 Pa. 422, 427, 76 A.2d 207, 209-210 ( 1950). 

In Commonwealth v. Hall, 309 Pa. Super. 407, 455 A.2d 674 ( 1983), this proposition 

was repeated in the context of a prosecution of a violation of a mandatory attendance 

policy: 

"[W]hen one attacks the action of a school board concerning matters 

committed by law to its discretion, he has a heavy burden as the courts 

are not prone to disturb a school board's decision. Indeed, they are 

without jurisdiction to interfere therewith unless it is apparent that the 

school board's conduct is arbitrary, capricious and to the prejudice of 

public interest. Lack of wisdom or mistaken judgment is insufficient." 

Farris v. Swetts, 158 Pa.Super. 645, 648, 46 A.2d 504, 505 ( 1946). In 

short, the courts of this Commonwealth are not "super" school boards with 

superior knowledge concerning the administration of the public schools or 

the science of pedagogics. McCoy v. Lincoln Intermediate Unit No. 12, 38 

Pa.Cmwlth. 29, 36, 391 A.2d 1119, 1123 ( 1978), cert. denied, 441 U.S. 

923, 99 S.Ct. 2033, 60 L.Ed.2d 397 ( 1979). See also: Zebra v. Pittsburgh 

School District, 449 Pa. 432, 437, 296 A.2d 748, 750 ( 1972); Christoffel v. 

Shaler Area School District, 60 Pa.Cmwlth. 17, 20, 430 A.2d 726, 728 

(1981); O'Leary v. Wisecup, 26 Pa.Cmwlth. 538, 364 A.2d 770 ( 1976). 

"'[C]ourts are in no position to exercise control over schools and 

determine the policy of school administration; the judges ordinarily are not 

equipped for this immense task."' Balsbaugh, et al. v. Rowland, 447 Pa. 

423, 431, 290 A.2d 85, 90 ( 1972) citing Wilson, et ux. v. Philadelphia 

School District, et al., supra 328 Pa. at 236, 195 A. at 97. Therefore, in the 

12 

$5-510, considered in conjunction with $ 7-701, The power of a school board to 

promulgate rules and regulations regarding school buildings has indeed been delegated 

by the legislature, is plenary, and is subject to a broad exercise of discretion: 

The legislature has delegated to the board of school directors of any 

school district the power to permit use of the school grounds and buildings 

for certain proper purposes under such rules and regulations as the board 

may adopt. Judicial review of the actions of a board must be restricted to 

the reasonableness thereof: Regan, et al, v. Stoddard. et al., 361 Pa. 469, 

65 A. 2d 240; Commonwealth ex rel. v. Sunbury School District. 335 Pa 

6, 6A. 2d 279; Wilson v. School District of Philadelphia, 328 Pa. 225, 195 

A. 90. It cannot encompass consideration of the wisdom of the action 

taken. 

McKnight v. Board of Public Education, 365 Pa. 422, 427, 76 A.2d 207, 209-210 (1950). 

In Commonwealth v. Hall, 309 Pa. Super. 407, 455 A.2d 674 (1983), this proposition 

was repeated in the context of a prosecution of a violation of a mandatory attendance 

policy. 

"[WIhen one attacks the action of a school board concerning matters 

committed by law to its discretion, he has a heavy burden as the courts 

are not prone to disturb a school board's decision. Indeed, they are 

without jurisdiction to interfere therewith unless it is apparent that the 

school board's conduct is arbitrary, capricious and to the prejudice of 

public interest. Lack of wisdom or mistaken judgment is insufficient." 

Farris v. Swetts, 158 Pa.Super. 645, 648, 46 A.2d 504, 505 (1946). In 

short, the courts of this Commonwealth are not "super" school boards with 

superior knowledge concerning the administration of the public schools or 

the science of pedagogics. McCoy v. Lincoln Intermediate Unit No, 12, 38 

Pa.CmwIth. 29, 36, 391 A.2d 1119, 1123 (1978), cert. denied, 441 U.S. 

923, 99 $.Ct 2033, 60 L.Ed.2 397 (1979). See also: Zebra v. Pittsburgh 

School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972) Christoffel v 

Shaler Area School District. 60 Pa.Cmwth. 17, 20, 430 A.2 726, 728 

(1981); Q'Lear , Wisecup, 26 Pa.Cmwith. 538, 364 A.2d 770 (1976) 

"[CJourts are in no position to exercise control over schools and 

determine the policy of school administration; the judges ordinarily are not 

equipped for this immense task." Balsbaugh, et al. v. Rowland, 447 Pa. 

423, 431, 290 A.2d 85, 90 (1972) citing Wilson, et ux, v, Philadelphia 

School District. et al, supra 328 Pa. at 236, 195 A. at 97. Therefore, in the 

12 
absence of a gross abuse of discretion, courts will not second-guess 

policies of the several boards of school directors. See: Commonwealth ex 

rel. Hetrick v. Sunbury School District, 335 Pa. 6, 11, 6 A.2d 279, 282 

(1939); Hibbs v. Arensberq, 276 Pa. 24, 26, 119 A. 727, 728 ( 1923). 

Hall, 455 A.2d at 676-677. 

In Duffield v. School Dist., 162 Pa. 476, 29 A. 742 ( 1894), the Pennsylvania 

Supreme Court dealt with a case in which a parent sued a school district in mandamus 

to compel the school to admit his child who had not been vaccinated against smallpox. 

The school district had adopted a policy requiring vaccination in order to attend school. 

Although Duffield was adjudicated 128 years ago, the propositions and principles set 

forth in its opinion are those which have been carried forward in the present School 

Code and in the cases set forth above. In leading to its holding that the school district 

was within its power to condition school attendance upon receiving a smallpox vaccine, 

the Pennsylvania Supreme Court recognized the distinction between dictating what 

citizen generally must do and regulating a person's presence within a school building: 

The school board do [sic) not claim that they can compel the plaintiff to 

vaccinate his son. They claim only the right to exclude from the schools 

those who do not comply with such regulations of the city and the board of 

directors as have been thought necessary to preserve the public health. 

Duffield, 29 A. at 742. The Duffield court continued: 

Vaccination may be, or may not be, a preventive of smallpox. That is a 

question about which medical men differ and which the law affords no 

means of determining in a summary manner. A decided majority of the 

medical profession believe in its efficacy. The municipal regulations of 

many, and I have no doubt of most, of the cities of this state and country, 

provide for it. In the present state of medical knowledge and public opinion 

upon this subject it would be impossible for a court to deny that there is 

reason for believing in the importance of vaccination as a means of 

protection from the scourge of smallpox. The question is not one of 

science in a case like the present. We are not required to determine 

13 

absence of a gross abuse of discretion, courts will not second-guess 

policies of the several boards of school directors. See: Commonwealth ex 

rel. Hetrick v. Sunbury School District, 335 Pa. 6, 11, 6 A.2 279, 282 

(1939) Hibbs v. Arensberg, 276 Pa. 24, 26, 119 A. 727, 728 (1923). 

tall, 455 A.2d at 676-677. 

In Duffield v, School Dist,, 162 Pa. 476, 29 A. 742 (1894), the Pennsylvania 

Supreme Court dealt with a case in which a parent sued a school district in mandamus 

to compel the school to admit his child who had not been vaccinated against smallpox. 

The school district had adopted a policy requiring vaccination in order to attend school. 

Although Duffield was adjudicated 128 years ago, the propositions and principles set 

forth in its opinion are those which have been carried forward in the present School 

Code and in the cases set forth above. In leading to its holding that the school district 

was within its power to condition school attendance upon receiving a smallpox vaccine, 

the Pennsylvania Supreme Court recognized the distinction between dictating what 

citizen generally must do and regulating a person's presence within a school building: 

The school board do [sic] not claim that they can compel the plaintiff to 

vaccinate his son. They claim only the right to exclude from the schools 

those who do not comply with such regulations of the city and the board of 

directors as have been thought necessary to preserve the public health 

Duffield, 29 A. at 742. The Duffield court continued 

Vaccination may be, or may not be, a preventive of smallpox. That is a 

question about which medical men differ and which the law affords no 

means of determining in a summary manner. A decided majority of the 

medical profession believe in its efficacy. The municipal regulations of 

many, and I have no doubt of most, of the cities of this state and country, 

provide for it. In the present state of medical knowledge and public opinion 

upon this subject it would be impossible for a court to deny that there is 

reason for believing in the importance of vaccination as a means of 

protection from the scourge of smallpox. The question is not one of 

science in a case like the present. We are not required to determine 

13 
judicially whether the public belief in the efficacy of vaccination is 

absolutely right or not. We are to consider what is reasonable in view of 

the present state of medical knowledge and the concurring opinions of the 

various boards and officers charged with the care of the public health. 

Duffield, 29 A. at 742-743. 

Eleven years later, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 

L. Ed. 643 ( 1905), the United States Supreme Court affirmed the power of state and 

local governments to generally compel all healthy persons to undergo a smallpox 

vaccination, despite a then ongoing debate as to its efficacy. In so holding, the United 

States Supreme Court expressly stated that individuals do not have a Constitutional 

liberty right to refuse such health and safety mandates enacted by state or local 

legislative bodies: 

The authority of the State to enact this statute is to be referred to what is 

commonly called the police power -- a power which the State did not 

surrender when becoming a member of the Union under the Constitution. 

Although this court has refrained from any attempt to define the limits of 

that power, yet it has distinctly recognized the authority of a State to enact 

quarantine laws and " health laws of every description;" indeed, all laws 

that relate to matters completely within its territory and which do not by 

their necessary operation affect the people of other States. According to 

settled principles the police power of a State must be held to embrace, at 

least, such reasonable regulations established directly by legislative 

enactment as will protect the public health and the public safety. Gibbons 

v. Ogden, 9 Wheat. 1, 203; Railroad Company v. Husen, 95 U.S. 465, 

470; Beer Company v. Massachusetts, 97 U.S. 25; New Orleans Gas Co. 

v. Louisiana Light Co., 115 U.S. 650, 661; Lawton v. Steele, 152 U.S. 133. 

It is equally true that the State may invest local bodies called into 

existence for purposes of local administration with authority in some 

appropriate way to safeguard the public health and the public safety. The 

mode or manner in which those results are to be accomplished is within 

the discretion of the State, subject, of course, so far as Federal power is 

concerned, only to the condition that no rule prescribed by a State, nor 

any regulation adopted by a local governmental agency acting under the 

sanction of state legislation, shall contravene the Constitution of the 

United States or infringe any right granted or secured by that instrument. 

14 

judicially whether the public belief in the efficacy of vaccination is 

absolutely right or not. We are to consider what is reasonable in view of 

the present state of medical knowledge and the concurring opinions of the 

various boards and officers charged with the care of the public health. 

Duffield, 29 A. at 742-743 

Eleven years later, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 

L. Ed. 643 (1905), the United States Supreme Court affirmed the power of state and 

local governments to generally compel all healthy persons to undergo a smallpox 

vaccination, despite a then ongoing debate as to its efficacy. In so holding, the United 

States Supreme Court expressly stated that individuals do not have a Constitutional 

liberty right to refuse such health and safety mandates enacted by state or local 

legislative bodies: 

The authority of the State to enact this statute is to be referred to what is 

commonly called the police power -- a power which the State did not 

surrender when becoming a member of the Union under the Constitution. 

Although lhis court has refrained from any attempt to define the limits of 

that power, yet it has distinctly recognized the authority of a State to enact 

quarantine laws and "health laws of every description;" indeed, all laws 

that relate to matters completely within its territory and which do not by 

their necessary operation affect the people of other States. According to 

settled principles the police power of a State must be held to embrace, at 

least, such reasonable regulations established directly by legislative 

enactment as will protect the public health and the public safety. Gibbons 

v. Ogden, 9 wheat. 1, 203; Railroad Company v. iusen, 95 U.S. 465, 

470: Beer Company • Massachusets. 97 U.S. 25; New Orleans Gas Co, 

v.Louisiana Light Co,, 115 U.S. 650, 661; Lawton v. Steele, 152 0.S. 133. 

It is equally true that the State may invest local bodies called into 

existence for purposes of local administration with authority in some 

appropriate way to safeguard the public health and the public safety. The 

mode or manner in which those results are to be accomplished is within 

the discretion of the State, subject, of course, so far as Federal power is 

concerned, only to the condition that no rule prescribed by a State, nor 

any regulation adopted by a local governmental agency acting under the 

sanction of state legislation, shall contravene the Constitution of the 

United States or infringe any night granted or secured by that instrument. 
A local enactment or regulation, even if based on the acknowledged 

police power of a State, must always yield in case of conflict with the 

exercise by the General Government of any power it possesses under the 

Constitution, or with any right which that instrument gives or secures. 

Gibbons v. Ogden, 9 Wheat. 1, 210; Sinnot v. Davenport, 22 How. 227, 

243; Missouri. Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613, 626. 

We come, then, to inquire whether any right given, or secured by the 

Constitution, is invaded by the statute as interpreted by the state court. 

The defendant insists that his liberty is invaded when the State subjects 

him to fine or imprisonment for neglecting or refusing to submit to 

vaccination; that a compulsory vaccination law is unreasonable, arbitrary 

and oppressive, and, therefore, hostile to the inherent right of every 

freeman to care for his own body and health in such way as to him seems 

best; and that the execution of such a law against one who objects to 

vaccination, no matter for what reason, is nothing short of an assault upon 

his person. But the liberty secured by the Constitution of the United States 

to every person within its jurisdiction does not import an absolute right in 

each person to be, at all times and in all circumstances, wholly freed from 

restraint. 

Jacobson, 197 U.S. at 24-26. 

Applying these cases and propositions to the facts of this case, read in a light 

most favorable to the Commonwealth, the verdict winner, it is apparent that the Board 

was within its power and prerogative to mandate the wearing of masks inside school 

buildings, including at public school board meetings inside a school building. To 

paraphrase the cases, this court is not a "super school board" which exists to second 

guess rules and regulations promulgated by school boards. As in Duffield and 

Jacobson, where the courts noted that vaccinations may or may not have prevented 

smallpox, we can accept for purposes of this argument that masks may or may not 

mitigate the spread of COVID-19. We are not taking a position on that in this Opinion. 

As stated in Duffield, we are not adjudicating whether the wearing or masks are 

"absolutely right or not." Reasonable minds may differ, but, again to quote Duffield, we 

15 

A local enactment or regulation, even if based on the acknowledged 

police power of a State, must always yield in case of conflict with the 

exercise by the General Government of any power it possesses under the 

Constitution, or with any right which that instrument gives or secures 

Gibbons v. Ogden, 9 Wheat. 1, 210; Sinnot v. Davenport. 22 How. 227, 

243; Missouri, Kansas & Texas Ry. Co, , Haber, 169 U.S. 613, 626 

We come, then, to inquire whether any right given, or secured by the 

Constitution, is invaded by the statute as interpreted by the state court 

The defendant insists that his liberty is invaded when the State subjects 

him to fine or imprisonment for neglecting or refusing to submit to 

vaccination; that a compulsory vaccination law is unreasonable, arbitrary 

and oppressive, and, therefore, hostile to the inherent night of every 

freeman to care for his own body and health in such way as to him seems 

best; and that the execution of such a law against one who objects to 

vaccination, no matter for what reason, is nothing short of an assault upon 

his person. But the liberty secured by the Constitution of the United States 

to every person within its jurisdiction does not import an absolute night in 

each person to be, at all times and in all circumstances, wholly freed from 

restraint. 

Jacobson, 197 U.S. at 24-26. 

Applying these cases and propositions to the facts of this case, read in a light 

most favorable to the Commonwealth, the verdict winner, it is apparent that the Board 

was within its power and prerogative to mandate the wearing of masks inside school 

buildings, including at public school board meetings inside a school building. To 

paraphrase the cases, this court is not a "super school board" which exists to second 

guess rules and regulations promulgated by school boards. As in Duffield and 

Jacobson, where the courts noted that vaccinations may or may not have prevented 

smallpox, we can accept for purposes of this argument that masks may or may not 

mitigate the spread of COVID-19. We are not taking a position on that in this Opinion. 

As stated in Duffield, we are not adjudicating whether the wearing or masks are 

"absolutely right or not." Reasonable minds may differ, but, again to quote Duffield, we 

15 
are to determine whether the Mask Mandate was " reasonable in view of the [then'] 

present state of medical knowledge and the concurring opinions of the various boards 

and officers charged with the care of the public health." Duffield, 29 A. at 743. More 

specifically, we find that one reasonable interpretation of the science at the time was 

that masks inhibit the spread of COVID-19, especially in view of the CDC Guidelines in 

effect at the adoption of the Mask Mandate ( Ex. C-2) which expressed one scientific 

school of thought. There may have been other reasonable interpretations, but the 

Board is the entity vested with broad discretion to make these policy decisions. As 

stated in Hall, supra, in the absence of a gross abuse of discretion, it is not the function 

of this court to second-guess policies of the Board. As confirmed in Jacobson by the 

United States Supreme Court, the Defendants had no Constitutional right to exercise 

their liberty interests by being " mask free" inside a school building. There was clearly 

no abuse of discretion in promulgating the Mask Mandate. 

In Duffield, there was no requirement that all children be vaccinated in the 

abstract, only that, if the children were present in school, then and only then did they 

have to be vaccinated. In the present case, the Southern Board did not require the 

Defendant's to don masks generally or in the abstract. Rather, the Board promulgated 

a policy decision that, if one wanted to be present upon school grounds, he or she had 

to wear a mask. 

2 It is well documented that our country was faced with an unprecedented 

emergency when faced with the COVID pandemic. It is also well documented that 

research evolved and is evolving to this day. It is only fair and just to apply the state of 

the art research and CDC recommendations as they existed on September 13, 2021. 

16 

are to determine whether the Mask Mandate was reasonable in view of the [then] 

present state of medial knowledge and the concurring opinions of the various boards 

and officers charged with the care of the public health." Duffield, 29 A. at 743. More 

specifically, we find that one reasonable interpretation of the science at the time was 

that masks inhibit the spread of CO\VID-19, especially in view of the CDC Guidelines in 

effect at the adoption of the Mask Mandate (Ex. C-2) which expressed one scientific 

school of thought. There may have been other reasonable interpretations, but the 

Board is the entity vested with broad discretion to make these policy decisions. As 

stated in Hall, supra, in the absence of a gross abuse of discretion, it is not the function 

of this court to second-guess policies of the Board. As confirmed in Jacobson by the 

United States Supreme Court, the Defendants had no Constitutional right to exercise 

their liberty interests by being mask free inside a school building. There was clearly 

no abuse of discretion in promulgating the Mask Mandate. 

In Duffield, there was no requirement that all children be vaccinated in the 

abstract, only that, if the children were present in school, then and only then did they 

have to be vaccinated. In the present case, the Southern Board did not require the 

Defendant's to don masks generally or in the abstract. Rather, the Board promulgated 

a policy decision that, if one wanted to be present upon school grounds, he or she had 

to wear a mask. 

It is well documented that our country was faced with an unprecedented 

emergency when faced with the COVID pandemic. It is also well documented that 

research evolved and is evolving to this day. It is only fair and just to apply the state of 

the art research and CDC recommendations as they existed on September 13, 2021 

16 
4. The fourth assignment of error is the same at the third: That the Southern 

Board had no legal authority to require the wearing of masks on school premises. 

The discussion of the third issue is hereby incorporated by reference. 

5. This court erred in prohibiting defense counsel from arguing that the Federal 

Food Drug and Cosmetic Act ( the " FDCA") and the Emergency Use Authorization 

(EUA) provisions within the FDCA, found at 21 U.S.C. §360bbb-3, prohibited the 

Southern Board from implementing the Mask Mandate. 

The Defendants next argue that it was error for this court, at trial and as a matter 

of law, to have prohibited the jury from being read and instructed on a certain part of the 

Federal Food Drug and Cosmetic Act (the " FDCA"), specifically the Emergency Use 

Authorization ( EUA) statute found at 21 U.S.C. § 360bbb-3. At argument, outside the 

presence of the jury, defense counsel argued that a mask is a "product" under the 

FDCA and the EUA statute and that, prior to "administration" of that "product," even by 

a supermarket chain, the supermarket or other distributor must inform the distributees 

of masks of the benefits and risks of masks. When asked if he had any case citations 

interpreting the FDCA in the manner argued by him, defense counsel had none to offer. 

This court determined that such an interpretation was absurd and ruled that no party 

could present evidence or make argument to the jury relating to the FDCA or the EUA 

statute. 

The EUA statute contained within the FDCA sets forth the statutory guidelines for 

emergency authorization of " products" ( including drugs, devices, and biological 

products) by the Secretary of Health and Human Services ("the Secretary"). See 

generally § 360bbb-3(a)(1). The Secretary " may make a declaration that the 

circumstances exist justifying the authorization" for a product on the basis of " a 

17 

4. The fourth assignment of error is the same at the third: That the Southern 

Board had no legal authority to require the wearing of masks on school premises. 

The discussion of the third issue is hereby incorporated by reference. 

5. This court erred in prohibiting defense counsel from arguing that the Federal 

Food Drug and Cosmetic Act (the "FDCA") and the Emergency Use Authorization 

(EUA) provisions within the FDCA, found at 21 U.S.C. &$360bbb-3, prohibited the 

Southern Board from implementing the Mask Mandate. 

The Defendants next argue that it was error for this court, at trial and as a matter 

of law, to have prohibited the jury from being read and instructed on a certain part of the 

Federal Food Drug and Cosmetic Act (the "FDCA"), specifically the Emergency Use 

Authorization (EUA) statute found at 21 U.S.C. $360bbb-3. At argument, outside the 

presence of the jury, defense counsel argued that a mask is a product" under the 

FDCA and the EUA statute and that, prior to "administration" of that "product," even by 

a supermarket chain, the supermarket or other distributor must inform the distributees 

of masks of the benefits and risks of masks. When asked if he had any case citations 

interpreting the FDCA in the manner argued by him, defense counsel had none to offer. 

This court determined that such an interpretation was absurd and ruled that no party 

could present evidence or make argument to the jury relating to the FDCA or the EUA 

statute. 

The EUA statute contained within the FDCA sets forth the statutory guidelines for 

emergency authorization of "products" (including drugs, devices, and biological 

products) by the Secretary of Health and Human Services ("the Secretary"). See 

generally S 360bbb-3(a)(1). The Secretary "may make a declaration that the 

circumstances exist justifying the authorization" for a product on the basis of "a 

17 
determination by the Secretary that there is a public health emergency ... that affects, 

or has a significant potential to affect, national security or the health and security of 

United States citizens living abroad, and that involves a biological, chemical, 

radiological, or nuclear agent or agents, or a disease or condition that may be 

attributable to such agent or agents." § 360bbb-3(b)(1)(C) ( Emphasis added). For 

authorization of a " product" for emergency use, the FDCA requires that, "to the extent 

practicable," steps be taken to ensure that individuals "on whom the product is 

administered" are informed "of the option to accept or refuse administration of the 

product, of the consequences, if any, of refusing administration of the product, and of 

the alternatives to the product that are available and of their benefits and risks." 

§360bbb-3(e)(1)(A)(ii)(I ll). ( Emphasis added). 

In Lloyd v. Sch. Bd. of Palm Beach Cty., 570 F. Supp. 3d 1165 ( S.D. Fl. 2021), 

the history of EUA of masks was traced: 

On February 4, 2020, the Secretary determined there to be a " public 

health emergency that has a significant potential to affect national security 

or the health and security of United States citizens living abroad and that 

involves a novel ( new) coronavirus ( nCoV) first detected in Wuhan City, 

Hubei Province, China in 2019 ( 2019-nCoV)." See Determination of Public 

Health Emergency, 85 Fed. Reg. 7316-01 ( Feb. 7, 2020). Then, based 

upon the Secretary's determination of a public health emergency, on April 

24, 2020, the Secretary issued an Emergency Use Authorization (" Mask 

EUA") clarifying that facemasks, including cloth face coverings, are 

"authorized for use by the general public to cover their noses and mouths, 

in accordance with CDC recommendations." See FOOD AND DRUG 

ADMINISTRATION, (April 24, 2021), available at: 

https://www.fda.gov/media/137121/download. The Mask EUA does not 

include any provision regarding informed consent. See generally id. 

(Emphasis added). 

18 

determination by the Secretary that there is a public health emergency... that affects, 

or has a significant potential to affect, national security or the health and security of 

United States citizens living abroad, and that involves a biological, chemical, 

radiological, or nuclear agent or agents, or a disease or condition that may be 

attributable to such agent or agents." $ 360bbb-3(b)(1(C) (Emphasis added). For 

authorization of a "product" for emergency use, the FDCA requires that, "to the extent 

practicable," steps be taken to ensure that individuals "on whom the product is 

administered" are informed "of the option to accept or refuse administration of the 

product, of the consequences, if any, of refusing administration of the product, and of 

the alternatives to the product that are available and of their benefits and risks." 

$360bbb-3(e(1)(A{ii)(1II). (Emphasis added). 

In Lloyd v. Sch, Bd, of Palm Beach Cty., 570 F. Supp 3d 1165 (S.D. FI 2021) 

the history of EUA of masks was traced: 

On February 4, 2020, the Secretary determined there to be a "public 

health emergency that has a significant potential to affect national security 

or the health and security of United States citizens living abroad and that 

involves a novel (new) coronavirus (nCoV) first detected in Wuhan City, 

Hubel Province, China in 2019 (2019-nCoV" See Determination of Public 

Health Emergency, 85 Fed. Reg. 7316-01 (Feb. 7, 2020). Then, based 

upon the Secretary's determination of a public health emergency, on April 

24, 2020, the Secretary issued an Emergency Use Authorization ("Mask 

EUA") clarifying that facemasks, including cloth face coverings, are 

"authorized for use by the general public to cover their noses and mouths, 

in accordance with CDC recommendations." See FOOD AND DRUG 

ADMINISTRATION, (April 24, 2021), available at: 

https://www.fda.gov/media/137121/download. The Mask EUA does not 

include any provision regarding informed consent. See generally id. 

(Emphasis added) 
Lloyd, 570 F. Supp. 3d at 1174. Given the absence of any provision regarding informed 

consent, it is apparent that the Secretary felt, as does this court, that apprisal of the 

much argued risks and benefits of masks was not " practicable" in the literally hundreds 

of thousands of every day distributions of masks in supermarkets, stores, hospitals and 

schools. 

In Lloyd, with citations to significant precedent, it was held that there is no private 

cause of action for an alleged violation of the FDCA or EUA promulgated thereunder. 

Accord: Bush v. Fantasia, 2022 U.S. Dist. LEXIS 163696, 2022 WL 4134501 ( D. Mass. 

2022). Thus, Defendants in the present case cannot convolute the issues by asserting 

a claim of a right to be mask free based upon a private assertion of a violation of the 

FDCA or an EUA. Further, in Llovd, it was held that a mask mandate presents no 

substantive due process or equal protection Constitutional violation. 

In addition to the above, the court in Lloyd held that a mask mandate by a school 

district is rationally related to a legitimate governmental interest because it is consistent 

with the CDC's Guidance, pointing out that, regardless of two divergent scientific 

schools of thought, "... the School Board's Mask Mandate is consistent with guidance 

from the CDC." Lloyd. 570 F. Supp. 3d at 1184. The Lloyd court elaborated: 

Although Plaintiffs have raised valid points about the efficacy of masks, 

the Court cannot find that Defendants are irrational for following the 

recommendations of the CDC which, as the Court has noted, are 

formulated based upon a great deal of scientific research. 

Lloyd, 570 F. Supp. 3d at 1185. As such, it was held that a " mask mandate" does not 

constitute any violation of a substantive due process or equal protection right under the 

Constitution. See also: Bush, supra; Guilfoyle v. Beutner, 2021 U.S. Dist. LEXIS 

19 

Lloyd, 570 F. Supp. 3d at 1174. Given the absence of any provision regarding informed 

consent, it is apparent that the Secretary felt, as does this court, that appnisal of the 

much argued risks and benefits of masks was not "practicable" in the literally hundreds 

of thousands of every day distributions of masks in supermarkets, stores, hospitals and 

schools. 

In Lloyd, with citations to significant precedent, it was held that there is no private 

cause of action for an alleged violation of the FDCA Or EUA promulgated thereunder. 

Accord: Bush v, fantasia, 2022 U.S. Dist LEXIS 163696, 2022 WL 4134501(D. Mass. 

2022). Thus, Defendants in the present case cannot convolute the issues by asserting 

a claim of a right to be mask free based upon a private assertion of a violation of the 

FDCA or an EUA. Further, in Lloyd, it was held that a mask mandate presents no 

substantive due process or equal protection Constitutional violation 

In addition to the above, the court in Lloyd held that a mask mandate by a school 

district is rationally related to a legitimate governmental interest because it is consistent 

with the CDC's Guidance, pointing out that, regardless of two divergent scientific 

schools of thought, "... the School Board's Mask Mandate is consistent with guidance 

from the CDC." LI0yd, 570 F. Supp. 3d at 1184. The Lloyd court elaborated: 

Although Plaintiffs have raised valid points about the efficacy of masks, 

the Court cannot find that Defendants are irrational for following the 

recommendations of the CDC which, as the Court has noted, are 

formulated based upon a great deal of scientific research 

Lloyd, 570 F. Supp. 3d at 1185. As such, it was held that a "mask mandate" does not 

constitute any violation of a substantive due process or equal protection right under the 

Constitution. See also: Bush, supra; Guilfoyle v. Beutner, 2021 U.S. Dist. LEXIS 

19 
195396 (C.D. Cal. 2021); Dolen-Cartwright v. Alexander, 2022 U.S. Dist. LEXIS 50053 

(M.D. La. 2022). The CDC Guidance in the present case ( Ex. C-2) was confirmed by 

Superintendent Becker to have been a basis for Southern's Mask Mandate promulgated 

on August 29, 2021. As in Llovd, and as articulated above, as long as there was some 

rational basis for the Southern School Board policy, we, in the judiciary, are not to act 

as a " super school board," second guessing board policy and substituting our own. 

For the foregoing reasons, the FDCA and the EUA statute contained within it are 

not relevant or assertable by the Defendants in the present case, each of whom are 

trying to use the EUA statute as a defense to the crime of defiant trespass. It was 

proper to prevent the jury from being confused by arguments thereunder. 

6. The sixth assignment of error is the same as the fifth and the discussion on 

the fifth assignment of error is hereby incorporated by reference. 

BY TH 

20 

COURT: 

E GARY . NOR ON, P.J. 

P.J. 

195396 (C.D. Cal, 2021); Dolen-Cartwright v, Alexander, 2022 U.S. Dist. LEXIS 50053 

(M.D. La. 2022). The CDC Guidance in the present case (Ex. C-2) was confirmed by 

Superintendent Becker to have been a basis for Southern's Mask Mandate promulgated 

on August 29, 2021. As in Lloyd, and as articulated above, as long as there was some 

rational basis for the Southern School Board policy, we, in the judiciary, are not to act 

as a super school board," second guessing board policy and substituting our own. 

For the foregoing reasons, the FDCA and the EUA statute contained within it are 

not relevant or assertable by the Defendants in the present case, each of whom are 

trying to use the EUA statute as a defense to the crime of defiant trespass. It was 

proper to prevent the jury from being confused by arguments thereunder. 

6, The sixth assignment of error is the same as the fifth and the discussion on 

the fifth assignment of error is hereby incorporated by reference. 

BY TH COURT: 

20