dissenting:
Appellant contends that the lower court erred in affirming his involuntary commitment to Farview State Hospital because the evidence was insufficient to prove that appellant presented a clear and present danger of harm to others or to himself .as required by the Mental Health Procedures Act of 1976. I agree and, therefore, would grant appellant’s petition of habeas corpus.1
The facts giving rise to the instant case are not in dispute. On January 14, 1977, following disruptive and threatening behavior at a youth home, appellant was admitted to Easton Hospital under § 302 of the Mental Health Procedures Act of 19762 [The Act] for a period of not more than 20 days. *69While at Easton Hospital, appellant was examined by Dr. Oh until January 15, 1977, when appellant eloped. On January 19, 1977 appellant was admitted to Allentown State Hospital 3 for continued examination under § 303 of the Act.4 While at Allentown State Hospital, appellant was examined until February 3, 1977, by Dr. Morrison who recommended an out-patient program at the Mental Health/Mental Retardation Clinic in Easton, Pennsylvania. On March 21, 1977, appellant was arrested and charged with criminal attempt to commit arson5, burglary6, and criminal mischief.7 On June 28, 1977, appellant entered a plea of guilty to the charges of criminal trespass8 and criminal mischief in the Northampton County Court of Common Pleas; the Commonwealth dropped the charge of attempted arson at the preliminary *70hearing. At the close of the guilty pleas proceeding, the lower court deferred sentencing and ordered a complete psychiatric and psychological evaluation as part of appellant’s pre-sentence report. Appellant then returned to Northampton County Prison to await sentencing. According to a report filed with the court by Dr. Oh, a court appointed psychiatrist, appellant was severely mentally disabled and in need of continuous treatment.
On July 26, 1977, the Warden of Northampton County Prison filed a petition for involuntary commitment of appellant pursuant to § 304 of the Act.9 Following a hearing before the Mental Health officer of Northampton County on August 2, 1977,10 the court ordered appellant involuntarily committed to Farview State Hospital for a period of not more than 90 days. Appellant petitioned for a review of the hearing officer’s decision and for a new hearing before a judge.11 The court granted the petition and held a hearing on August 25, 1977.
*71At the hearing, Donald Flyte, a correction officer at Northampton County Prison, testified that on July 15, 1977, he entered appellant’s cell and observed a folded up newspaper, one quarter of which was burning. Appellant stamped out the fire and threw out the newspaper. Flyte testified that there were no other inmates in the vicinity of appellant’s cell. He further testified that “[appellant] is erratic. There are days when he’s calm and there are other days when he seems disturbed or bothered. There are times when [appellant] could be dangerous to himself or others. At certain times ... I mean it could be one day, yes, and the other day, no it’s not a set pattern.”
Ludwig Grucela, Supervisor of Northampton County Prison testified that he had known appellant for about three years. He recalled that on July 15,1977, Flyte reported the incident of the burning newspaper to him. He further testified that on July 25,1977, a prison officer brought him a twisted coat hanger which the officer found on appellant’s person while doing a routine search of appellant. Grucela stated that although he did not know if appellant had attempted to use the hanger as a weapon, “it would be a very, very vicious weapon if you got it in the stomach.” 12 Grucela concluded that based on his observations, he was of the opinion that appellant “might injure someone else or himself.”
Next, the lower court heard the testimony of Dr. Oh who stated that on July 19,1977, he examined appellant pursuant to the June 28,1977 court order directing appellant’s psychiatric evaluation. Dr. Oh testified that in his opinion, appel*72lant “was suffering from mental illness, so-called, with the symptoms of psychosis, and he showed a very suspicious attitude and behavior along with symptoms that he was not able to control himself at that time.” Specifically, Dr. Oh stated that in the course of the 45 minute interview, appellant indicated that “he was hearing things from other sources which was not from himself, and he also believed that people are against him and he, in turn, had to kill them.” Dr. Oh further testified that he had read appellant’s psychiatric record and had prior personal contact with appellant during which time he formed the opinion that appellant was schizophrenic, psychotic, paranoid, and suffered from hallucinations. Although Dr. Oh stated that he had heard about the burning newspaper in appellant’s cell, he offered no testimony linking this incident with his psychiatric evaluation of appellant. On cross-examination, the following interchange ensued:
“[APPELLANT’S COUNSEL]: Doctor, within the past 30 days, what conduct has this man engaged in to indicate that he has inflicted or attempted to inflict serious bodily harm on himself or another and that there’s a reasonable probability that that conduct will be repeated?
“DR. OH: I have no information besides I have seen him on July 19th and the information I had through the last commitment court hearing, which you were there.”
Dr. Oh concluded that attempts to treat appellant in an unrestrictive environment had failed, that Northampton County Prison was not equipped to handle appellant, and that appellant’s lack of motivation in obtaining help indicated a need for involuntary commitment.
Appellant presented the testimony of two psychiatrists. Dr. Morrison examined and treated appellant at Allentown State Hospital after his 20 day commitment under § 303 of the Act13 in January or February of 1977. Dr. Barrett examined and treated appellant on August 18, 1977. Both psychiatrists agreed that appellant’s age, history, and unsuc*73cessful experiences with psychiatric counseling indicated that confinement in a correctional facility within the criminal justice system, as opposed to a psychiatric hospital, would be more beneficial to appellant. Neither psychiatrist testified that the burning newspaper or bent coat hanger related to appellant’s mental condition.
Following the hearing, the lower court judge ordered appellant committed to Farview. This petition for habeas corpus followed.
Appellant contends that the lower court erred in ordering his involuntary commitment to Farview because there was insufficient evidence to prove that he presented a clear and present danger either to himself or to others as required by the Mental Health Procedures Act. Section 304 of the Act provides, in pertinent part:
“Court-ordered involuntary treatment not to exceed ninety days
“(a) Persons for Whom Application May be Made. — (1) A person who is severely mentally disabled and in need of treatment, as defined in section 301(a), may be made subject to court-ordered involuntary treatment upon a determination of clear and present danger under section 301(b)(1) (serious bodily harm to others), or section 301(b)(2)(i) (inability to care for himself, creating a danger of death or serious harm to himself), or 301(b)(2)(H) (attempted suicide), or 301(b)(2)(iii) (self-mutilation).
“(2) Where a petition is filed for a person already subject to involuntary treatment, it shall be sufficient to represent, and upon hearing to reestablish, that the conduct originally required by section 301 in fact occurred, and that his condition continues to evidence a clear and present danger to himself or others. In such event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.” [footnote omitted].
Section 301 of the Act outlines the requirements for involuntary commitment:
“Persons who may be subject to involuntary emergency examination and treatment.
*74“(a) Persons Subject. — Whenever a person is severely mentally disabled and in need of immediate treatment, he may be made subject to involuntary emergency examination and treatment. A person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself.
“(b) Determination of Clear and Present Danger. — (1) Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated. If, however, the person has been found incompetent to be tried or has been acquitted by reason of lack of criminal responsibility on charges arising from conduct involving infliction of or attempt to inflict substantial bodily harm on another, such 30-day limitation shall not apply so long as an application for examination and treatment is filed within 30 days after the date of such determination or verdict. In such case, a clear and present danger to others may be shown by establishing that the conduct charged in the criminal proceeding did occur, and that there is a reasonable probability that such conduct will be repeated.
“(2) Clear and present danger to himself shall be shown by establishing that within the past 30 days:
“(i) the person has acted in such manner as to evidence that he would be unable, without care, supervision and the continued assistance of others, to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety, and that there is a reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded under this act; or
“(ii) the person has attempted suicide and that there is the reasonable probability of suicide unless adequate treatment is afforded under this act; or
*75“(iii) the person has severely mutilated himself or attempted to mutilate himself severely and that there is the reasonable probability of mutilation unless adequate treatment is afforded under this act.”
In addition, § 304(f) provides that the Commonwealth must prove the existence of clear and present danger to oneself or to others by clear and convincing evidence.14
The statutory conditions necessary to a determination of clear and present danger require both certain conduct within 30 days prior to the mental health hearing and a reasonable probability that such conduct will recur. An examination of the record of the August 25, 1977 hearing demonstrates only two occurrences which arguably could fit within the statutory requirements. I do not believe that either occurrence sufficiently satisfies the standards of § 301.
Donald Flyte testified that he found a folded, partially burning newspaper in appellant’s cell. However, he also testified that appellant extinguished the fire before throwing out the newspaper. Moreover, there was no testimony at the hearing of either prior or subsequent similar incidents. Finally, none of the three testifying psychiatrists offered any opinion connecting the incident with appellant’s mental condition. Without more, a single incident of possessing a partially burning newspaper is insufficient to demonstrate that appellant had “inflicted or attempted to inflict serious bodily harm on another and that there is reasonable probability that such conduct will be repeated.” Section 301(b)(1). Nor is the evidence sufficient to prove *76that appellant had “severely mutilated himself or attempted to mutilate himself severely and that there is reasonable probability of mutilation unless adequate treatment is afforded under this act.” § 301(b)(2)(iii). Consequently, I would hold that the burning newspaper incident did not constitute clear and convincing evidence that appellant was a clear and present danger to himself or others.15
The second event arguably within the requirement of § 301 concerned the bent hanger which a prison officer purportedly found on appellant’s person. At the hearing, Supervisor Grucela stated that the prison officer had told him that the hanger was bent in the shape of a weapon. However, there was no testimony that appellant either used, attempted to use, or threatened to use the hanger to injure himself or others. Nor was there any psychiatric testimony that demonstrated that appellant’s psychosis would lead him to use the hanger as a weapon.' Consequently, I would conclude that this event also fails to satisfy the statutory requirements of clear and present danger. §§ 301(b)(1) and (b)(2)(iii).16
I would conclude that the Commonwealth failed to prove by clear and convincing evidence that appellant was a clear and present danger to himself or others. Because there was insufficient evidence to commit appellant involuntarily under the Act, I believe that the lower court erred in issuing its commitment order.17 Accordingly, I would grant appel*77lant’s petition for habeas corpus and remand to the lower court for appropriate action.
SPAETH, J., joins in this Dissenting Opinion.. The Mental Health Procedures Act is silent on the issue of appellate jurisdiction. Because appellee does not challenge our jurisdiction, we may consider the merits of the instant appeal. Pa.R.App.P. 741; 42 Pa.C.S. § 741.
. The Act of July 9, 1976, P.L. 817, No. 143, § 101; 50 P.S. § 7302 provides, in pertinent part:
*69“Involuntary emergency examination and treatment authorized by a physician — not to exceed seventy-two hours.
“(a) Application for Examination. — Emergency examination may be undertaken at a treatment facility upon the certification of a physician stating the need for such examination; or upon a warrant issued by the county administrator authorizing such examination: or without a warrant upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination.”
. The commitment order of January 14, 1977 provided for appellant’s transfer to Allentown State Hospital in the event that he eloped.
. Section 303 of the Act provides in pertinent part:
“(a) Persons Subject to Extended Involuntary Emergency Treatment. — Application for extended involuntary emergency treatment may be made for any person who is being treated pursuant to section 302 whenever the facility determines that the need for emergency treatment is likely to extend beyond 72 hours. The application shall be filed forthwith in the court of common pleas, and shall state the grounds on which extended emergency treatment is believed to be necessary. The application shall state the name of any examining physician and the substance of his opinion regarding the mental condition of the person.”
. The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 3301.
. The Crimes Code, supra; 18 Pa.C.S. § 3502.
. The Crimes Code, supra; 18 Pa.C.S. § 3304.
. The Commonwealth reduced the burglary charge to criminal trespass.
. Section 304(c) of the Act provides, in pertinent part:
“Procedures for Initiating Court-ordered Involuntary Treatment for Persons not in Involuntary Treatment. — (1) Any responsible party may file a petition in the court of common pleas requesting court-ordered involuntary treatment for any person not already in involuntary treatment for whom application could be made under subsection (a).
“(2) The petition shall be in writing upon a form adopted by the department and shall set forth facts constituting reasonable grounds to believe that the person is within the criteria for court-ordered treatment set forth in subsection (a). The petition shall state the name of any examining physician and the substance of his opinion regarding the mental condition of the person.”
. Section 304 of the Act provides, in pertinent part:
“(e) Hearings on Petition for Court-ordered Involuntary Treatment. —A hearing on a petition for court-ordered involuntary treatment shall be conducted according to the following: . . .
“(6) The hearing shall be conducted by a judge or by a mental health review officer and may be held at a location other than a courthouse when doing so appears to be in the best interests of the person.”
. Section 303(g) of the Act provides:
“Petition to Common Pleas Court. — In all cases in which the hearing was conducted by a mental health review officer, a person made subject to treatment pursuant to this section shall have the right to petition the court of common pleas for review of the certifi*71cation. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person’s counsel. The hearing shall include a review of the certification and such evidence as the court may receive or require. If the court determines that further involuntary treatment is necessary and that the procedures prescribed by this act have been followed, it shall deny the petition. Otherwise, the person shall be discharged.”
. Appellant’s attorney objected to Grucela’s statements about the burning newspaper and twisted hanger as being hearsay. The lower court overruled the objections and admitted the testimony. Because of our disposition of the instant case, it is unnecessary for us to consider appellant’s hearsay contention. See note 18, infra.
. See note 4, supra.
. Section 7304(f) of the Act provides:
“Determination and Order. — Upon a finding by clear and convincing evidence that the person is severely mentally disabled and in need of treatment and subject to subsection (a), an order shall be entered directing treatment of the person in an approved facility as an inpatient or an outpatient. Inpatient treatment shall be deemed appropriate only after full consideration has been given to less restrictive alternatives. Investigation of treatment alternatives shall include consideration of the person’s relationship to his community and family, his employment possibilities, all available community resources, and guardianship services. An order for inpatient treatment shall include findings on this issue.”
. An examination of the statutory requirements for commitment demonstrates that appellant’s conduct did not satisfy any other statutory condition permitting involuntary commitment, e. g., adjudication of incompetency or suicide attempt. See Mental Health Procedures Act; 50 P.S. § 7301(b)(1) and (2)(ii). Further, although Grucela testified vaguely about having problems with appellant taking his medicine regularly he was not specific about when these problems occurred or the nature and extent of the difficulties. Thus, I would conclude that there was insufficient evidence to establish that appellant’s welfare was seriously endangered pursuant to § 7301(b)(2)(i).
. Note 15, supra.
. In its order, the lower court did not explain how the Commonwealth’s evidence satisfied any of the statutory requirements.