concurring and dissenting:
¶ 1 I concur in the Majority’s well-reasoned conclusion that admission of hearsay under section 303 of the Mental Health Procedures Act (the Act) is consistent with procedural due process so long as the evidence in question bears sufficient indicia of reliability. However, I respectfully dissent from the remainder of the Majority’s disposition of the hearsay issue for three reasons. Initially, I disagree with the Majority’s characterization of the record and dissent from its conclusion that the hearsay introduced in this case was sufficiently reliable to be admissible under section 303. Secondly, I dissent from the Majority’s conclusion that the evidence was sufficient to establish that R.D.’s conduct “posed a clear and present danger to others,” as prescribed by section 301(b) and defined by our caselaw. Thirdly, I dissent from the Majority’s suggestion that R.D. was a “clear and present danger to herself’ because the record does not establish that either the hearing officer or the trial court made such a determination in support of R.D.’s commitment. I shall address each of these considerations seriatim.
¶ 2 I first dissent from the Majority’s conclusion that the hearsay allegations in the section 302 petition bore sufficient indi-cia of reliability to permit their admission as evidence at R.D.’s section 303 commitment conference. Section 303 provides that the judge or Mental Health Review Officer presiding at the commitment conference “may review any relevant information even if it would be normally excluded under the rules of evidence if he believes that such information is reliable.” Mental Health Procedures Act § 303(c)(1). Our Supreme Court has directed that, in proceedings where the rules of evidence are not applied, the reliability of hearsay must be adjudged on numerous factors bearing on the context in which the hearsay statement was made:
Although indicia of reliability must ultimately be evaluated on a case by case basis, several factors typically would be significant:
*561E.g., whether the hearsay statements are contradicted by direct testimony; whether the statements are sworn or unsworn, written or oral, signed or anonymous; whether the declarant is disinterested or is potentially biased; or whether the hearsay is corroborated. The type of hearsay offered is also a factor: for example some documents such as reports and itemized statements of charge from licensed professionals, may be typically more trustworthy than documents of more subjective content. If hearsay is introduced by live testimony, the credibility of the witness is, of course, to be considered.
Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 607-06, 427 A.2d 631, 641 (1981).
¶ 3 Upon review of the hearsay at issue in this case, I find little indication of reliability. As the Majority has noted, the statement in question was made as an allegation in support of the application upon which R.D. was committed under section 302. The declarant, Marilyn Miles, was the administrator of the boarding home where R.D. was residing, and though the record is silent on the issue of Miles’ qualifications, she was presumably aware of the consequences inherent in the application. While the gravity of the section 302 application and Miles’ capacity at the boarding home tend to suggest that the statement is reliable, other factors demonstrate that, clearly, it is not. Most significant is the entirely subjective nature of Miles’ allegations, which consist of few observations and numerous conclusions bearing more on Miles’ state of mind when she filed the petition than R.D.’s antecedent conduct. Miles alleged:
Client has made serious threats to caregiver. She also made serious threatening gestures to caregiver. Client has also threatened to burn the house down. This particular threat was very serious and poses concerns. Client has refused to take medication [and] refuses to eat. This is a concern because of health. Client has picked up her cane and threatened the caregiver (to hit caregiver)[J
Application for Involuntary Emergency Examination and Treatment, 2/17/98, at page 3 of 7. Though the statement reflects Miles’ perception that R.D. had issued threats, it fails to establish precisely what they were or even whether they were physical, or merely verbal. Similarly, while Miles repeatedly characterized such threats as “serious,” she provided little factual description by way of which any reviewing tribunal could evaluate the accuracy of her characterization. To the extent the petition asserts “threatening gestures,” it fails to detail the acts involved and, consequently, provides no basis upon which an impartial factfinder could adjudge the veracity of Miles’ observation. Moreover, Miles’ description of R.D.’s single physical act, i.e. “picked up her cane and threatened the caregiver,” is cloaked in speculation as to R.D.’s purpose, i.e. “(to hit caregiver).” Of equal significance, the statement fails even to indicate whether Miles was in fact the “caregiver” to whom R.D. had spoken. Significantly, the record is silent on this issue. In the event that Miles was not the caregiver, her assertions about R.D.’s conduct are rendered multiple hearsay, the reliability of which would be highly suspect even if Miles had herself appeared at the section 303 hearing. Miles’ failure to appear at the hearing, despite service of a subpoena, causes me grave concern whether she would, or could, attest the veracity of her allegations in a recorded legal proceeding. I conclude accordingly, that Miles’ hearsay statement was not sufficiently reliable for the Mental Health Review Officer’s consideration under section 303.
¶4 I dissent also from the Majority’s conclusion that the evidence was sufficient to sustain the Mental Health Review Officer’s conclusion that R.D. posed a clear and present danger to others. We have held that a person may be involuntarily committed under the Act only upon a *562showing, by clear and convincing evidence, that he or she is “severely mentally disabled.” In re Hancock, 719 A.2d 1053, 1058 (Pa.Super.1998). A person is severely mentally disabled when, as result of mental illness, “he poses a clear and present danger of harm to others or to himself.” Mental Health Procedures Act § 301(a). The Act provides that a person is a “clear and present danger to others” if “within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another” and there is a reasonable probability that he or she will commit similar conduct again. Id. at § 301(b). A finding made pursuant to section 301 must be based on the individual’s commission of an overt act. In re S.C., 280 Pa.Super. 539, 421 A.2d 853, 857 (1980). Unless these prerequisites are met, involuntary commitment under the Act is not lawful. Commonwealth v. Maker, 293 Pa.Super. 391, 446 A.2d 976, 980 (1981).
¶ 5 The record of R.D.’s section 303 hearing establishes, without contradiction, that on the date of the hearing, R.D. was mentally ill, suffering from sehizo-affeetive disorder. N.T., 2/24/98, at 8. However, I find the competent evidence insufficient to establish that R.D. was a clear and present danger to others as defined by section 301(b). The record of the section 303 hearing consists of the testimony of two witnesses, R.D. and the examining physician, Dr. Ladenheim. Though R.D. admitted having issued a verbal threat to her caregiver, she denied acting in furtherance of the threat. Id. at 12. Dr. Ladenheim testified that R.D. admitted to him that she had threatened, verbally, to hit her caregiver and had spoken “unkind words,” but denied attempting to strike anyone. Id. at 7. Though the doctor opined that R.D. had “vague paranoid ideas” about the staff at the boarding home, he concluded that “she had no suicidal or homicidal idea-tions,” and she acknowledged her mental illness. Id. at 6. Neither Dr. Ladenheim nor R.D. provided any testimony to substantiate a finding that R.D. had “inflicted or attempted to inflict■ serious bodily harm on another.” Significantly, when asked why he recommended that R.D. be confined as an inpatient rather than treated as an outpatient, Ladenheim proffered that “[R.D.] is having difficulty adjusting to life in the community at this point, and we are seeking to avoid another rapid re-hospitalization.” Id. at 11. When asked about R.D.’s treatment regimen upon commitment, Ladenheim stated that “the major thrust of the treatment now [would be] devoted to working with her intensive care management team ... in finding [R.D.] a new place to live.” Id. at 8. Neither of these considerations bears any direct relevance to a determination under section SOI of whether R.D. posed a clear and present danger to others.
¶ 6 Though I recognize, in Laden-heim’s testimony, a concern for R.D.’s best interest, I cannot condone substitution of the good intentions of the state for the legal protections of the Act. Even amongst the medically sensitive considerations prevalent in mental health issues, we have in the past recognized, and must continue to recognize, the primacy of individual liberty.
When the awesome power of the government bureaucracy and the courts is brought to bear on the individual citizen, good intentions are not enough. Even though they may be motivated by a desire to help the individual, the actions of the government must be strictly circumscribed by the law. This is most particularly mandatory when the governmental action involves the deprivation of the citizen’s liberty. The courts, in overseeing such liberty-depriving bureaucratic action, must be especially protective of the rights of the individual and vigilant in ensuring that the legal safeguards have been complied with.
In re Remley, 324 Pa.Super. 163, 471 A.2d 514, 517 (1984).
¶ 7 Accordingly, my colleagues have concluded, even under more compelling *563circumstances, that the statutory definition of “clear and present danger to others” was not met. See Remley, 324 Pa.Super. 163, 471 A.2d 514, 516 (panel of Brosky, Montgomery and Cercone, JJ., holding that where 82-year-old man kicked his wife in the abdomen, but wife stated “[H]e didn’t kick me that hard,” evidence failed to establish that man inflicted or attempted to inflict serious bodily injury); Blaker, 446 A.2d at 978-79 (majority of Spaeth and Cavanaugh, JJ., holding that where 60-year-old woman hit bus driver with umbrella when he attempted to escort her onto bus, evidence did not establish that her conduct, even if repeated, could lead to death or serious bodily injury).
¶ 8 In the case before us, I am compelled to a similar conclusion. The competent evidence fails entirely to establish that R.D committed any overt act that might precipitate serious bodily harm to another. The “verbal threats” on which the Majority relies, coupled with “the act of picking up one’s cane in an effort to hit another,” op. at 558, are simply not sufficient to satisfy the requisites of section 301. Indeed, on the record before us, I am left to question how a 56-year-old woman who walks with the aid of cane could pose a threat of harm to anyone when the very instrumentality that enables her to move about is said to double as her weapon of choice. In the absence of additional evidence, we are left only with a diagnosis of mental illness and the good intentions of the Commonwealth. Though I recognize that the state has a valid interest in providing care and assistance to the unfortunate, I remain mindful as well that “the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution.” In re S.C., 421 A.2d at 856 (quoting O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)). I conclude accordingly that because the evidence fails to satisfy the statutory requisites of section 301, R.D.’s commitment under section 303 was unlawful. Blaker, 446 A.2d at 980.
¶ 9 Finally, I dissent from the Majority’s apparent conclusion that R.D. “pose[d] a clear and present danger to herself because of an incapacity to care for her own personal needs,” op. at 559, as I believe it constitutes a discreet finding of fact that neither the Mental Heath Review Officer nor the trial court undertook to make.
¶ 10 In cases of involuntary commitment, where the court serves as factfinder, the permissible scope of appellate review is limited to whether that court’s findings are supported by the record. See Commonwealth v. Romett, 372 Pa.Super. 41, 538 A.2d 1339, 1342 (1988) (reviewing whether evidence was sufficient to establish trial court’s finding that patient’s conduct demonstrated the need for continuing involuntary treatment under section 305 of the Act). The record in this case demonstrates, beyond peradventure, that the Mental Health Review Officer ordered R.D.’s commitment solely on the basis of the danger R.D. posed to others, without reference to any danger she may have posed to herself. Accordingly, I cannot discern how evidence that R.D. refused to eat or that she did not take her medication for two days prior to her initial commitment under section 302 is material to our review of her commitment under section 303. The Majority’s reliance upon such evidence as a basis for affirmance, in the absence of any plausible indication in the record that it served as the basis for the disposition below, amounts to a finding of fact. Even if supported by evidence adduced at the section 303 hearing, such a finding is beyond the permissible scope of this Court’s review.
¶ 11 Based upon my review of the briefs and the record, and after carefully reviewing the reasoning of my distinguished colleagues, I concur in their conclusion that admission of hearsay at a section 303 hearing does not violate applicable due process protections. However, I disagree with the Majority’s disposition of the remaining aspects of the hearsay issue be*564cause: 1) the hearsay adduced in this case does not evince sufficient indicia of reliability to be considered under section 303 of the Act; 2) the competent evidence is not sufficient to establish that R.D. was a clear and present danger to others within the meaning of section 301 of the Act, and; 3) the Majority’s consideration of evidence material to a determination that R.D. was a clear and present danger to herself is inappropriate because neither the Mental Health Review Officer nor the trial court made Such a determination. Accordingly, such evidence is beyond the permissible scope of appellate review.
¶ 12 Consequently, I respectfully dissent from the Majority’s conclusion that R.D. was lawfully committed under section 303 of the Act.