author: MONTEMURO, Judge:

text:
    530 A.2d 103
    Rebecca NEAL, a minor, By her parents and natural guardians, David C. NEAL and Carol W. Neal; David C. Neal and Carol W. Neal, in their own rights, Appellants, v. Milton LU, M.D., and Milton Lu, D.D.S., M.S., F.A.C.S., Ltd., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1987.
    Filed Aug. 13, 1987.

      Theodore A. Schwartz, Philadelphia, for appellants.
    Peter J. Curry, Harrisburg, for appellee.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellants in this medical malpractice action challenge the denial of their motions for a new trial and for judgment n.o.v. In the absence of any error that would justify a retrial, and because the evidence of record adequately supports the jury’s verdict, we affirm the judgment of the Lancaster County Court of Common Pleas in favor of appellee Milton Lu, M.D.

Appellants allege in their complaint that Dr. Lu performed surgery on appellant Rebecca Neal negligently and without the informed consent of either Rebecca or her parents, appellants David and Carol Neal. The testimony and other evidence at trial revealed the following facts. In July of 1969, Rebecca, who was then three years old, amputated the tip of the ring finger on her right hand while playing on a swing in her back yard. She was treated at a nearby hospital by John W. Pratt, M.D., and was released apparently without further incident. In the years following this mishap, however, the finger developed a bulbous deformity on either side of the nail, and the nail itself curved at an odd angle over the end of the finger. The deformity embarrassed Rebecca and impeded her pursuit of musical and athletic activities at school. Rebecca and her mother therefore consulted Dr. Lu in January of 1981 about the possibility of corrective surgery. Dr. Lu advised the Neals that surgery could eliminate the bulbous deformity and straighten the nail. The Neals sought the “second opinion” of at least one other physician, who advised against a surgical solution to Rebecca’s problem. Neither Rebecca nor her mother could recall the reasons for this advice. The Neals nevertheless decided that Rebecca would undergo the proposed surgery, and Dr. Lu operated on March 6, 1981.

The surgery, according to appellants, has worsened rather than corrected the condition of Rebecca’s finger. Appellants offered evidence that the finger is shorter now than it was before surgery and that Rebecca has lost completely the use of the joint closest to the fingertip. In support of the negligence claim, the evidence offered by appellants suggests that Dr. Lu removed or “trimmed” bone from Rebecca’s finger unnecessarily. Appellants’ medical expert, moreover, testified that the “ill-conceived” failure to employ a skin graft in this case caused the death or “necrosis” of additional bone and tissue in the afflicted digit. In support of the informed consent claim, the parties agree that Dr. Lu decided during surgery to insert a “pin” into Rebecca’s finger to ensure the straightness of the nail even though the doctor had informed neither Rebecca nor her parents of the possibility that he would have to do so. The parties also agree that Dr. Lu never informed the Neals of the possibility that he would “trim” bone from the finger.

Dr. Lu testified on his own behalf as the sole witness for the defense. He indicated that during surgery he had removed tissue and other matter from the affected area as planned. He repeatedly denied, however, that he had “trimmed” any bone other than the nail. The doctor also testified that although he had noticed some necrosis of the skin in the weeks following surgery, he never noticed any necrosis of the bone. He suggested that the surgery only appeared to shorten Rebecca’s finger. In response to the testimony of appellants’ medical expert, Dr. Lu offered his own “opinion” that the “traumatic amputation” of Rebecca’s finger in 1969 was “clearly” a “possible” cause of the condition about which appellants now complain. The doctor further opined that if the 1969 accident itself did not sever bone from the fingertip, the treating physician at the time, Dr. Pratt, could not possibly have closed the wound without removing or trimming some portion of the bone itself. Counsel for appellants objected to this portion of Dr. Lu’s testimony on two grounds. First, counsel maintained that Dr. Lu was attempting to testify as a medical expert even though he had neither listed himself as a prospective expert witness nor furnished appellants with a synopsis of his proposed testimony pursuant to general and local rules of discovery. Second, counsel observed that Dr. Lu had failed to render his opinion to “a reasonable medical certainty.” The trial court nevertheless overruled these objections and allowed the testimony.

On February 22,1985, the jury returned a verdict in favor of Dr. Lu. Appellants filed timely motions for post-trial relief, which the court denied. This appeal followed. Appellants now present three issues for our consideration:

I. Whether the trial court erred when it allowed the defendant physician in a medical malpractice case to render an expert opinion even though the defendant failed to list himself as a prospective expert witness and failed to furnish a synopsis of his proposed expert testimony as required by Pa.R.C.P. 4003.5 and Lancaster County Local Rule 212.
II. Whether the trial court erred when it allowed the defendant physician in a medical malpractice case to render an expert opinion on the issue of causation with less than “a reasonable medical certainty.”
III. Whether the evidence on the issue of informed consent was so conclusive that it entitles appellants to judgment n.o.v.

We will address each of these questions in turn.

I.

In support of their request for a new trial, appellants point out that Dr. Lu failed during discovery to list himself as one of the experts the defense expected to call at trial. Appellants also point out that the doctor failed to disclose “the substance of the facts and opinions” about which he expected to testify. For these reasons, appellants contend that the trial court should have excluded Dr. Lu’s “surprise” expert testimony. Their argument relies primarily upon Pa.R.C.P. 4003.5(a), which provides in relevant part as follows:

(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial may be obtained as follows:
(1) A party may through interrogatories require
(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.

We recognize that appellants served the necessary interrogatories upon Dr. Lu and that rule 4003.5 therefore required Dr. Lu to disclose before trial the substance of any expert testimony “acquired or developed in anticipation of litigation.” We further recognize that if a party fails to identify as requested any of those experts which he or she expects to call at trial, the court must exclude the testimony of the undisclosed experts, absent some extenuating circumstance. See Pa.R.C.P. 4003.5(b); Kaminski v. Employers Mut. Cas. Co., 338 Pa.Super. 400, 487 A.2d 1340 (1985). Appellants nevertheless misapply the requirements of Rule 4003.5 to the testimony of Dr. Lu.

By its own terms, Rule 4003.5 allows limited discovery of expert opinions “acquired or developed in anticipation of litigation.” As this language suggests, the rule governs discovery of opinions that a party or a potential party to litigation solicits from a wow party expert. The explanatory note to the Rule, moreover, emphasizes that

Rule 4003.5 is not applicable to discovery and deposition procedure where a defendant is himself an expert, such as a physician, architect or other professional person, and the alleged improper exercise of his professional skills is involved in the action. Such a defendant can be examined by written interrogatories under Rule 4005 or by oral deposition under Rule 4007.1.

Pa.R.C.P. 4003.5 explanatory note — 1978. See also 10 Goodrich-Amram 2d § 4003.5:2 (1979). As the Civil Procedural Rules Committee here suggests, the litigant can probe the expert knowledge and opinions of his or her opponent before trial by more direct and comprehensive means than those which are afforded by Rule 4003.5. The ability to discover the potential expert testimony of a party witness, either by propounding written interrogatories or by taking oral or written depositions, is fettered only by the general limitations that apply to all discovery. Since the rescission of Rule 4011(f) in 1978, the party witness against whom discovery is sought can no longer object on the ground that the requested disclosure would require him or her “to give an opinion as an expert witness.” Appellants in the present case took full advantage of the opportunity to learn before trial the expert opinions of Dr. Lu. They examined the doctor both by interrogatories and by deposition. If the doctor’s opinion at trial varied significantly from his opinion under oath during deposition, counsel for appellants could have called the discrepancy to the attention of the jury. In fact, counsel relied heavily upon the deposition transcript during his cross examination of Dr. Lu at trial. Rule 4003.5 did not afford appellants the right to vex their party opponent with cumulative discovery demands merely because the opponent expected to testify as an expert in defense of the very conduct at issue.

Like its almost identical federal counterpart, Fed.R. Civ.P. 26(b)(4), Rule 4003.5 applies only to discovery of experts that a litigant has “retained or specially employed” in the course of preparing for litigation. Pa.R.C.P. 4003.5 explanatory note — 1978. The Rule limits, rather than expands, the relatively free flow of pre-trial information. By allowing discovery of only those experts that an opponent “expects to call” at trial and by restricting this discovery to a synopsis of the proposed expert testimony, it discourages the lazy litigant from building his or her case upon the bétter preparation of a more diligent opponent. It permits only enough discovery to prevent the tactical use of surprise expert testimony at trial. The opinions of Dr. Lu in this case certainly were not the kind of trial preparation material to which Rule 4003.5 applies. The doctor did not “acquire” his opinions on the treatment of Rebecca’s finger “in anticipation of litigation.” He did not expend time and money developing his own knowledge or employing himself as an expert to gain a tactical advantage in the law suit brought against him by appellants. His opinions and knowledge, in short, were not the work product of a well-prepared litigant. They pre-dated any litigation and are the very gist of appellants’ cause of action. As such, they fall outside any reasonable definition of the phrase “acquired or developed in anticipation of litigation.” Dr. Lu therefore could not have taken advantage of Rule 4003.5 to limit discovery of his opinions to a mere synopsis of his proposed testimony. If Dr. Lu could not have invoked the protection of Rule 4003.5 to avoid full discovery of his expert knowledge, appellants certainly cannot invoke the sanctions of Rule 4003.5 to punish the doctor for noncompliance. The Rule simply does not apply to expert opinions of a party when a matter within that party’s field of expertise is at issue. This interpretation is consistent with discovery practice under the federal rule. See, e.g., Rodrigues v. Hrinda, 56 F.R.D. 11 (W.D.Pa.1972) (expert opinion of defendant physicians in medical malpractice action not “acquired or developed in anticipation of litigation”).

Appellants also argue, however, that Dr. Lu failed to comply with Lancaster County Local Rule 212. This rule governs the conduct of pretrial conferences in Lancaster County. One of the numerous requirements of the Rule is that counsel before conference furnish both the court and opposing counsel with a list of “witnesses on liability and on damages, showing the address of each.” Counsel must also furnish “a concise statement of each witness’ proposed testimony.” The Rule limits the evidence at trial “to those witnesses, exhibits and documents set forth in [the] pre-trial memorandum.” The record in this case nowhere indicates that Dr. Lu furnished the required lists and concise statements. Appellants therefore urge that the trial court should have excluded the expert testimony of Dr. Lu and that the court’s failure to do so entitles appellants to a new trial. We disagree.

Appellant recognizes that noncompliance with the literal requirements of a local rule of discovery will not by itself justify exclusion of testimony. We observed in Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982), that a trial court should not enforce a local “procedural technicality” by excluding evidence unless failure to do so would deprive a party of their right to a fair trial. In Sindler, the defendant physician in a medical malpractice action failed to comply with a local rule that required him to serve upon his opponents “the reports of any expert whose opinion will be offered in evidence at the time of trial.” Sindler, supra, 309 Pa.Superior Ct. at 12, 454 A.2d at 1056. At his deposition, moreover, the defendant refused to answer questions that required him to render an expert opinion. The trial court nevertheless allowed the defendant during his trial testimony to offer the same expert opinions that the plaintiff had tried unsuccessfully to discover. Because the defendant physician had failed to disclose his proposed expert testimony pursuant to the local rule and had refused to allow the plaintiff to depose him on his expert opinions, the plaintiff in Sindler, like appellants in the present case, claimed that the defendant’s expert testimony constituted unfair surprise. We agreed and therefore affirmed the grant of a new trial by the trial court.

The present case, however, differs from Sindler. Here, as we have noted, appellants had ample opportunity before trial to explore the expert opinions of Dr. Lu. Appellants obtained more information from the depositions of their opponent than they would have from a mere summary of his testimony. We therefore cannot find that the doctor’s expert testimony deprived appellants of a fair trial. In Sindler, we identified four factors that the court should weigh in determining whether failure to comply with a local rule of discovery justifies exclusion of expert testimony: (1) the extent of any actual “prejudice or surprise” suffered by the party against whom the expert testified; (2) the ability of that party to cure the prejudice or surprise; (3) the extent to which allowance of the testimony disrupted the “orderly and efficient trial of the case or of other cases in the court”; and (4) the “bad faith or willfulness” of the party that has failed to comply with the order. Sindler, supra, 309 Pa.Superior Ct. at 15 n. 8, 454 A.2d at 1058 n. 8. See also Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979) (applying same factors to determine whether failure to comply with pretrial discovery order justified exclusion of expert testimony). These factors weigh heavily in favor of allowing Dr. Lu’s testimony. Appellants cannot claim actual prejudice or surprise. They learned as much from Dr. Lu’s deposition and from his answers to interrogatories as they would have learned from the “concise statement” required by Rule 212. Moreover, even if the expert testimony at trial differed from the expert testimony during deposition, appellants could easily cure any resultant prejudice or surprise by offering the inconsistent deposition testimony into evidence against the doctor or by exploring the inconsistency on cross examination. Finally, nothing in the record indicates that allowance of Dr. Lu’s testimony caused any disruption of the trial or that Dr. Lu acted willfully or with bad faith in failing to comply with Rule 212.

II.

Appellants also point out, in support of their request for a new trial, that Dr. Lu rendered his expert opinion on causation with less than “a reasonable medical certainty.” During his direct examination of Dr. Lu, counsel explored the possibility that the 1969 accident was the actual cause of Rebecca’s current problems. Counsel for appellants objected to the following exchange:

Q. Doctor, in a traumatic amputation such as Rebecca sustained in July of 1969, is it possible that the individual could sustain a damage to — I believe [plaintiff’s expert] referred to it as the growth plate — in the finger?
A. It is clearly possible because all the finger you have. All the bone have a growth center, so when the child grow, the long bone, short bone, all grow. If you damage the center, the bone will not grow.

N.T. February 22, 1985 at 505 (emphasis added). Appellants contend that this testimony about the “possible” other causes of Rebecca’s problems fell short of the evidentiary standard for expert opinion evidence on the issue of causation. They believe that the trial court should have “taken steps to assure that Dr. Lu testified within the realm of certainty.” We disagree.

Appellants cite McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971), for the firmly-established proposition that expert medical witnesses must render their opinions on causation with “reasonable medical certainty.” The opinion of our supreme court in McMahon makes clear, however, that the burden of proving causation with the appropriate certainty rests upon the plaintiff. Obviously, recovery in a civil action depends at least initially on the sufficiency of the proof offered by the party who seeks to recover. The defendant ordinarily need not prove, with certainty or otherwise, that he or she is innocent of the alleged wrongdoing. Absent an affirmative defense or a counterclaim, the defendant’s case is usually nothing more than an attempt to rebut or discredit the plaintiff’s case. Evidence that rebuts or discredits is not necessarily proof. It simply vitiates the effect of opposing evidence. Expert opinion evidence, such as that offered by Dr. Lu in this case, certainly affords an effective means of rebutting contrary expert opinion evidence, even if the expert rebuttal would not qualify as proof. In general, “the admission or rejection of rebuttal evidence is within the sound discretion of the trial judge.” Mapp v. Dube, 330 Pa.Super. 284, 294, 479 A.2d 553, 557 (1984).

We concluded in Erkens v. Tredennick, 353 Pa.Super. 236, 509 A.2d 424 (1986), that the trial court had acted within its discretion in permitting the defendant physician’s medical expert to testify on the issue of causation with less than reasonable medical certainty. The plaintiff’s expert in Erkens had testified with appropriate certainty that the defendant had caused the plaintiffs infection when he negligently removed sutures from the plaintiffs eye. The defendant’s expert countered that the infection “did not result from the suture removal but could have been carried by the bloodstream.” Erkens, supra, 353 Pa.Superior Ct. at 240, 509 A.2d at 426. We held that although the defendant’s rebuttal expert “did not state with reasonable medical certainty what did cause the infection, ... his testimony was quite clear as to his basis for finding the suture removal did not cause it.” Id. The present case begs the same result. Although Dr. Lu testified, in response to appellant’s expert, that the 1969 accident was a “possible” cause of Rebecca’s current problems, he was “quite clear” in explaining that he had neither removed bone during surgery nor caused any subsequent necrosis of bone. Moreover, the report of the hospital pathologist, who examined the matter removed from Rebecca’s finger by Dr. Lu, confirms Dr. Lu’s claim that he did not remove bone during surgery. Thus, as we concluded in Erkens v. Tredennick, we conclude in this case that the trial court did not abuse its discretion by permitting the challenged testimony of Dr. Lu.

Appellants nevertheless urge that Erkens was “ill-considered” and that we should not allow it to stand as “the law of the Commonwealth on this subject.” Appellants suggest that the holding in Erkens conflicts with the mandate of our supreme court in McMahon v. Young, supra. Because the “certainty” standard of McMahon applies only to expert medical testimony that a litigant offers as proof of a necessary fact in support of recovery, we cannot agree that Erkens and McMahon are incompatible. We lack any other reason at this time to question the wisdom of the Erkens holding.

III.

On their informed consent claim, appellants contend that the evidence entitles them to judgment n.o.v. Dr. Lu, they point out, admitted on cross examination that he never explained to Rebecca or to Rebecca’s parents the possibility that the surgery would require the “trimming” of bone or the insertion of a “pin.” Both Rebecca and her mother insisted that they would not have consented to the surgery had they known of the possible consequences. Appellants believe that this evidence conclusively establishes the liability of Dr. Lu on the informed consent claim. Again, we cannot agree with appellants’ view of this case.

The entry of judgment notwithstanding a jury verdict to the contrary is a drastic remedy. A court cannot lightly ignore the findings of a duly-selected jury. Thus, in considering a motion for judgment n.o.v., the court must view the evidence and all reasonable inference that arise from the evidence in a light most favorable to the verdict winner. See Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Northwest Savings Ass’n. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986); Tonkovic v. State Farm Mut. Automobile Ins. Co., 337 Pa.Super. 123, 486 A.2d 512 (1984). The court can enter judgment n.o.v. only if “no two reasonable persons could fail to agree that the verdict is improper.” Northwest Savings Ass’n. v. Distler, supra, 354 Pa.Super. at 191, 511 A.2d at 825. See also Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985). With this standard in mind, we find that the trial court properly denied judgment n.o.v. in this case.

In Pennsylvania, a physician is liable to his or her patient if (1) the physician fails to disclose any risk in the recommended treatment, or the existence of any alternative method of treatment, that a reasonable person would deem material in deciding whether to undergo the recommended treatment; (2) the patient would have forgone the recommended treatment had he or she known of the undisclosed information; and (3) as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed, or the patient actually suffers an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment. See Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987); Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986); De Fulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979); Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978); Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Viewing the evidence in a light most favorable to Dr. Lu, we find that appellants have not established conclusively the necessary elements of their case. We therefore will not disturb the jury’s verdict.

Even a quick review of the record reveals several weaknesses in the case against Dr. Lu. First, although Dr. Lu never discussed with the Neals the possibility that he would “trim” bone from Rebecca’s finger, the evidence does not establish conclusively that Dr. Lu actually did “trim” bone. As we have indicated, Dr. Lu maintained consistently during his testimony that he never removed bone from the finger. The report of the hospital pathologist confirms this testimony. Second, although Dr. Lu never discussed the possibility that he would insert a “pin” into the finger, none of the evidence establishes, with the appropriate medical certainty, a causal connection between the insertion of the “pin” and the injuries for which appellants seek to recover. The only testimony on this issue came from Rebecca and her mother, both of whom indicated simply that Rebecca felt less pain after Dr. Lu removed the pin. Third, Rebecca and her mother both testified that they had sought a “second opinion” after their initial meeting with Dr. Lu and that the second physician had advised against the proposed surgery. Neither Rebecca nor her mother, however, could recall why the second physician so advised them. The jury reasonably could have inferred from this testimony that the second physician explained all of the risks of the procedure proposed by Dr. Lu, including the risk of bone loss and the possible use of the “pin.” The jury could also have inferred that Dr. Lu knew of this advice and felt no need to repeat it. We cannot deprive the verdict winner of any favorable inferences.

Perhaps the weakest aspect of appellants’ case, however, is the lack of expert medical testimony on three crucial issues: the nature and magnitude of the undisclosed risks at issue, the existence of any undisclosed alternative methods of treatment and the nature and magnitude of the risks presented by the undisclosed alternatives. In Festa v. Greenberg, supra, this court held that a plaintiff cannot prevail on an implied consent cause of action absent evidence of this kind. We recognized that Pennsylvania is one of a growing number of jurisdictions to adopt a “prudent patient” standard of informed consent. This standard tests the adequacy of the physician’s pre-treatment disclosures by requiring the fact finder to determine whether the patient received all of the information that a reasonable person would deem “material.” We concluded in Festa that even though the ultimate assessment of “materiality” is for the fact finder to make, expert testimony is nevertheless necessary on the important secondary issues that lie outside the knowledge of the lay person. See Festa, supra 354 Pa.Super. at 360, 511 A.2d at 1378. See also Jozsa v. Hottenstein, supra, 364 Pa.Super. at 472-474, 528 A.2d at 607-08. Thus, only an expert is able to explain the harms that can arise from the procedure in question and estimate the likelihood that those harms will occur. Only an expert, moreover, can identify viable alternative treatments and discuss the risks involved. See Festa, supra 354 Pa.Super. at 356-60, 511 A.2d 1376-78. Without an informed discussion of the risks and alternatives, the fact finder cannot determine rationally whether a reasonable person would have deemed the undisclosed knowledge “material.”

Appellants in the present case offered the testimony of one medical expert. This expert concluded that the surgery performed by Dr. Lu violated the “basic rules of fingertip reconstruction” and that these violations caused Rebecca’s current problems. The expert explained in detail how the surgery deviated from “acceptable” procedure. Although the testimony certainly bolstered appellants’ negligence claims, it offered none of the necessary expert insight on risks and viable alternatives. Under the Festa rationale, appellants’ informed consent claims would not have survived a motion by Dr. Lu for compulsory nonsuit. We therefore must reject appellants’ demand for judgment n.o.v.

IV.

In light of the foregoing discussion, we affirm the judgment of the Lancaster County Court of Common Pleas in favor of appellee Milton Lu, M.D.

      . Although the explanatory notes are not part of the rules themselves, and therefore do not bind our interpretation, they serve as guidelines for understanding the purpose of our supreme court in adopting the particular rule in question. See Laudenberger v. Port Auth. of Allegheny Cty, 496 Pa. 52, 436 A.2d 147 (1981); Klyman v. Southeastern Pennsylvania Trans. Auth., 331 Pa.Super. 172, 480 A.2d 299 (1984).

      . Rule 4011(f) provided that "[n]o discovery or inspection shall be permitted which ... would required a deponent, whether or not a party, to give an opinion as an expert witness, over his objection.” Pa.R.C.P. 4011(f) (rescinded November 20, 1978), quoted in 5A R. Anderson, Pennsylvania Civil Practice 2 (1966). Despite the rescission of subdivision (f), the Rule continues to place general limits on the scope of discovery. For example, a party cannot make discovery demands that “would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party.” Pa.R.C.P. 4011(b). Rule 4003.1 to 4003.4 impose other general limits on discovery.

      . The language of Rule 4003.5 “closely parallels” that of Fed.R.Civ.P. 26(b)(4). Pa.R.C.P. 4003.5 explanatory note — 1978. In the note that precedes the 1978 amendments to the rules of deposition and discovery, the Civil Procedural Rules Committee indicated that the new rules would bring “the Pennsylvania system into as close conformity as possible with the federal system." The Advisory Committee note on Federal Rule 26 provides some insight into the purpose of Subdivision (b)(4):
      This is a new provision dealing with the discovery of information (including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party____ It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.

      Fed.R.Civ.P. 26, notes of Advisory Committee on 1970 amendments (emphasis added). Thus, the Federal Rule allows limited discovery of facts and opinions that are not otherwise discoverable.

      . Records transmitted to this court often lack this sort of pre-trial conference material. In this case, however, Dr. Lu appears to agree that he never listed himself as a witness or provided a concise statement of his proposed testimony as required by Local Rule 212.

      . The depositions in Sindler occurred before the repeal of Pa.R.C.P. 4011(f). As we have indicated, Rule 4011(f) enabled any deponant, party or non-party, to withhold his or her answer to a question that asked for an expert opinion.

      . See also Health Care Services Malpractice Act of Oct. 15, 1975, P.L. 390, No. Ill, 40 P.S. § 1301.101 et seq. Section 103 of the Act provides, in part, as follows:
      ‘Informed consent’ means for the purposes of this act and of any proceedings arising under the provision of this act, the consent of a patient to the performance of health care services by a physician or podiatrist: Provided, That prior to the consent having been given, the physician or podiatrist has informed the patient of the nature of the proposed procedure or treatment and of those risks and alternatives to treatment or diagnosis that a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis.
      40 P.S. § 1301.103.

      . In Jozsa v. Hottenstein, supra, 364 Pa.Super. at 474, 528 A.2d at 608, we concluded that a plaintiff need not offer expert testimony on all of these issues. For example, the plaintiff can prevail on an informed consent claim if his or her expert discusses the frequency with which the undisclosed harm occurs during the treatment in question, even though the expert fails to discuss viable alternatives.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    530 A.2d 112
    James SHONBERGER and Helaine Schonberger, trading as J.S. Apparel, Appellants v. Nathan OSWELL, trading as Oswell Enterprises.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed Aug. 18, 1987.

      Alan M. Black, Allentown, for appellants.
    Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court order entering judgment in favor of appellee. Appellant contends that the lower court erred in finding that appellee had an effective defense to appellant’s conversion action. We agree, and, accordingly, reverse the lower court order and remand the case for further proceedings.

Appellant, a supplier of women’s clothing, entered into a consignment agreement with a corporation with appellee as sole shareholder. The terms of the agreement were that appellee would sell appellant’s goods through his stores, keep a percentage of the proceeds, and then remit the remainder to appellant. For over two years both parties complied with the agreement. During the third year, appel-lee began to fail to remit the required proceeds to appellant. After a further two year period of negotiation during which appellee complied with the terms of the agreement and with a new agreement designed to reduce the delinquent balance, appellee ceased all payments to appellant. The delinquent balance at that time was $25,790.24. Three months after appellee’s last payment, appellant filed a two-count complaint against appellee individually seeking to recover damages for the delinquent amount. Count one alleged that appellant did not realize that appellee was trading as a corporation. The lower court entered a directed verdict against appellant on this count, and that holding is not challenged on appeal. Count two alleged that appellee was individually liable for his own tortious conduct. It alleged that appellee had converted the proceeds from the sale of appellant’s property for his own and the corporation’s use. After a hearing, the lower court found that appellee had a proper defense to this action, and entered judgment in his favor. Appellant’s timely post-trial motion was denied and this appeal followed.

Appellant contends that the lower court erred in finding that because he did not bring his action after appellee’s initial breach but rather waited until appellee was in complete breach appellee had a successful defense to the conversion action. We agree.

Conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, without the owner’s consent and without lawful justification. Steven son v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964). Conversion can result only from an act intended to affect chattel. Prosser & Keeton, Torts, § 15 (5th ed. 1984). Specific intent is not required, however, but rather an intent to exercise dominion or control over the goods which is in fact inconsistent with the plaintiffs rights establishes the tort. Id. Money may be the subject of conversion. Pearl Assurance Co. v. National Ins. Agency, 151 Pa.Superior Ct. 146, 156, 30 A.2d 333, 337 (1943). Conversion is an action at law and is, therefore, subject to the two-year statute of limitations. 42 Pa.C.S.A. § 5524.

Under the “participation theory”, an agent or officer of a corporation may be held individually liable for personal participation in tortious acts. Wicks v. Milzoco Builders, 503 Pa. 614, 621, 470 A.2d 86, 90 (1983). Such an action may exist even though the agent or officer derived no personal benefit, but acted on behalf, and in the name of, the corporation and the corporation alone was enriched by the act. McDonald v. First Nat’l Bank of McKeesport, 353 Pa. 29, 32, 44 A.2d 265, 266 (1945). Courts have sustained actions in conversion under this theory. Id. See also Pearl Assurance Co. v. National Ins. Agency, supra; Cohen v. Mans, 297 Pa. 454, 458, 147 A. 103, 105 (1929). Moreover, consignment agreements may form the basis for an action in conversion under the participation theory.

When the proceeds of a sale of goods, consigned to a corporation to be sold on commission, have been intentionally misapplied, the officers in control of the fund who have knowingly participated in the wrong are individually liable____

3A Fletcher, Cyclopedia Of The Law Of Private Corporations, § 1142. See also Pearl Assurance Co. v. National Ins. Agency, supra.

Here the lower court made the following findings of fact: The Defendant, Nathan Oswell, was at all times the sole shareholder, President and Chief Executive Officer of Oswell Outlet Enterprises, Inc., and as such made all decisions as to what checks were drawn from the Corporation’s account, and personally signed all such checks. The Defendant, Nathan Oswell, deposited or directed to be deposited in his Corporation’s bank account all proceeds from the sales of merchandise supplied by the Plaintiffs.
The Defendant, Nathan Oswell, used all of the money deposited in his Corporation’s bank account directly or indirectly to keep his business enterprise going.
The Defendant, Nathan Oswell, paid himself a salary during the entire period Oswell Outlet Enterprises, Inc. was in business____

Lower Court Opinion at 4. The court further found that appellee was delinquent in the amount claimed by appellant. Id. at 3. Turning to the claim of conversion, the lower court concluded that the goods and proceeds in dispute belonged to appellant, and that “The Defendant’s personal participation in the use of the Plaintiffs’ proceeds is beyond dispute.” Id. at 8-9. The lower court, therefore, correctly found that the necessary elements for the tort of conversion and the participation theory of liability were present. Nevertheless, the court held:

The Plaintiff’s theory of recovery is good and, under a different set of facts, would prevail. In the instant case, however, we find three deficiences. [sic] First, implied consent; second, acquiescence; third, a questionable “conflict” between the Plaintiffs’ and Defendant’s interest.

Id. at 10. The court based its conclusions on what it termed appellant’s “unreasonable delay in objecting to the Defendant’s otherwise offensive conduct.” Id. at 12. The court reasoned that this delay implied that appellant consented to, and acquiesced in, the conversion of his property. Id. at 11, 12. Additionally, the court held that the delay showed that the parties’ interests were not in conflict. Id. at 13. This reasoning was predicated upon the equitable concept of laches and this Court’s decision in Moerke v. Peterson Motors, Inc., 92 Pa. Superior Ct. 210 (1927). We find that the lower court’s reliance on this authority was an error of law requiring reversal. Dauphin Deposit Co. v. World Mutual Health and Accident Ins. Co. of Pa., 206 Pa. Superior Ct. 406, 409, 213 A.2d 116, 117 (1965) (appellate court must reverse where lower court commits error of law).

First, laches is an equitable doctrine not assertable in an action at law. Transbel Inv. Co. v. Scott, 344 Pa. 544, 547, 26 A.2d 205, 207 (1942). In effect, laches is an equitable version of the statute of limitations. Id. The two concepts are, therefore, mutually exclusive and the lower court erred in applying laches to this action at law.

Second, the lower court’s reliance upon Moerke v. Peterson Motors, supra is similarly misplaced. In Moerke, this Court held that a wife’s delay in bringing an action in conversion against her husband constituted acquiescence in his conduct. Id. at 212-13. This theory has only been recognized in one other case. See Brehm v. Wyoming Bank & Trust Co., 351 Pa. 281, 286, 40 A.2d 464, 466 (1945). Brehm also involved a spousal conflict. Accordingly, it appears that the novel theory of acquiescence, if it is viable at all, is limited in application to actions involving a husband and wife. Therefore, the lower court erred in applying it to this purely business relationship.

Finally, we note that appellant did not unduly delay bringing this action. The complaint was filed three months after appellee ceased payments under the revised agreement. That appellant attempted to negotiate with appellee over a two-year period during which appellee made some payments does not bar his action, particularly where the statute of limitations applies and has not been pled by appellee as a defense. See Lower Court Opinion at 10, n. 10. See also Pa.R.Civ.P. 1030 (affirmative defenses such as statute of limitations must be raised in pleadings).

Accordingly, we reverse the lower court order, enter judgment in favor of appellant, and remand the case for a hearing to determine damages.

Reversed and remanded. Jurisdiction is relinquished.

      . We note that following the bench trial, the lower court, instead of entering a verdict against appellants, labelled its findings "judgment.” Following the filing and denial of post-trial motions, the court then entered an official judgment against appellant and this appeal followed. Because the initial, and erroneously labelled, judgment was entered before the filing and denial of post-verdict motions, its entry was premature and void, and therefore did not begin the thirty-day appeal period under Pa.R.A.P. 903(a). Murphy v. Brong, 321 Pa. Superior Ct. 340, 341, 468 A.2d 509, 511 (1983). Accordingly, because this appeal was filed within thirty days of the valid judgment, it is properly before us.


author: BECK, Judge:

text:
    530 A.2d 115
    In the Interest of MICHAEL Y., a Juvenile. Appeal of GRACE E.Y.
    Superior Court of Pennsylvania.
    Argued April 2, 1987.
    Filed Aug. 17, 1987.

      Craig P. Miller, Lock Haven, for appellant.
    Stephen C. Smith, Lock Haven, for appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   BECK, Judge:

Michael Y., a fourteen-year old boy, lived with his great-grandmother Mrs. Grace Y. all of his life. In this appeal, appellant Grace Y. challenges the trial court’s adjudication that Michael is a dependent child and the court’s disposition of Michael, which placed custody with his aunt, Bonnie Y.

On September 18, 1986, appellee Clinton County Children and Youth Agency (“Agency”) petitioned the trial court to declare Michael a dependent child pursuant to 42 Pa.Cons. StaiAnn. § 6302 , on the basis of Michael’s absences from school and his arrest for growing marijuana in his room. At a dependency hearing on September 23,1986, counsel for Michael Y. and the Agency entered into a stipulation that was adopted by the court as its order. The order provided in relevant part:

And now, September 23, 1986, this matter having been scheduled for a dependency hearing this date and the parties appearing in open court and pursuant to stipulation and agreement arrived at in open court, it is hereby ordered that the Juvenile, Michael [Y.] born February 15, 1973, be adjudicated as a dependent child with legal custody to be transferred to the Petitioner, Clinton County Children and Youth Social Services Agency, with physical custody to remain with the Juvenile’s great-grandmother, Grace [Y.] of [address] for a period not to exceed ten days, pending negotiations with Petitioner [Agency] for placement of the Juvenile with a relative. In the event such negotiations are unsuccessful, physical custody shall be transferred to Petitioner for foster care placement with a disposition hearing to be scheduled as required by law.

Appellant was present at the hearing. However, she did not join in the stipulation, nor was she represented by counsel at this proceeding. Shortly thereafter, appellant obtained counsel and filed a motion for reconsideration. She claimed that at the dependency hearing she did not understand the legal significance of the proceeding, the meaning of certain terms used at the hearing, and the fact that she was entitled to court-appointed counsel. She further asserted that she neither consented to nor agreed with the adjudication that Michael was dependent. She stated she was prepared to present evidence that Michael’s absences from school had been due to Michael’s attendance at his mother’s funeral and behavior problems caused by the death of his mother. Nevertheless, the court denied reconsideration.

Following a disposition hearing on November 3, 1986, the court ruled that it was in Michael’s best interest to be placed with his aunt, Bonnie Y., and awarded legal and physical custody of Michael to her. This timely appeal followed.

On appeal, appellant contends that the trial court erred: (1) in finding Michael to be dependent; (2) in proceeding with the dependency hearing while appellant was unrepresented; and (3) in placing Michael with his aunt.

We find that the trial court erred in failing to make an independent adjudication of Michael’s dependency as required by 42 Pa.Cons.Stat.Ann. § 6341, and in proceeding with the dependency hearing without first procuring from appellant an effective waiver of her right to counsel. We therefore reverse the order of the trial court awarding custody of Michael to his aunt Bonnie Y. and remand for proceedings consistent with this opinion.

1

In reviewing an adjudication of dependency, we are mindful that

it is a serious matter for the long arm of the state to reach into a home to snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity.

In re Rinker, 180 Pa.Super. 143, 148, 117 A.2d 780, 785 (1955).

A court has no authority to disturb a legal custodian’s custody of a child except in accordance with the provisions of the Juvenile Act, 42 Pa.Cons.Stat.Ann. § 6301 et seq. (Purdon 1982). In re Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982); In re A.E.M., 288 Pa.Super. 284, 431 A.2d 1049 (1981); In re Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980). Chief among the requirements of the Act is that “[a]fter hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child.” 42 Pa.Cons.Stat.Ann. § 6341(a). An adjudication of dependency must be supported by “clear and convincing evidence.” 42 Pa.Cons.Stat.Ann. § 6341(c). The dependency hearing is a two stage process. Only after the court has made the adjudication of dependency can the court inquire into the best interests of the child in order to make an appropriate disposition.

2

The appellant asserts the court erred in finding Michael dependent. We agree on the basis that the trial court failed to comply with the requirements of Section 6341:

(a) General rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child.

We find that it was improper for the court to accept as conclusive the stipulation of some of the parties that Michael should be adjudicated dependent. We hold that Section 6341 requires the court to make an independent determination that the juvenile is dependent. In the case sub judice the court did not hear evidence on the petition, either in the form of live testimony or affidavits submitted by the parties. It did not make findings that cited specific instances of the juvenile’s behavior as establishing by clear and convincing evidence that he was dependent. In a hearing lasting seven minutes, the court merely adopted the stipulation of two of the three parties that Michael be adjudicated as a dependent child. This was improper. The court has a statutory duty to decide the legal issue of whether a child is dependent within the meaning of 42 Pa.Cons.Stat.Ann. § 6302. This duty cannot be delegated to the parties. The court cannot be relieved of its obligation to hear evidence and base its adjudication of dependency on the evidence. The court should of course receive evidence from all interested parties. In re Barclay, 321 Pa.Super. 417, 468 A.2d 778 (1983). In addition, “the judge should receive, and if necessary should seek out, evidence from objective, disinterested witnesses,” In re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976), e.g., neighbors, teachers, social workers, and psychological experts. In re Mark T, 296 Pa.Super. 533, 442 A.2d 1179 (1982); In re A.E.M.

The requirement that the court make an independent determination under Section 6341 protects the welfare of children, the primary goal of the statute, by preventing abuse of the dependency proceedings. Under Section 6302 a child can be adjudicated dependent for noncriminal conduct. For example, under subsection (5) of Section 6302 a finding of dependency may be based on habitual truancy from school. Under subsection (6), a juvenile who is habitually disobedient to his parents may be found to be dependent. These standards are very broad and therefore present the potential to be abused. It is a hard task to distinguish between a difficult child who is temporarily acting out and who should not be adjudicated dependent and a difficult child whose behavior is so egregious that he or she will benefit from being adjudicated a dependent. The court must make this distinction independently and cannot rely merely on stipulations from parents, guardians and social service personnel who may be justifiably hostile to a difficult youngster. In these kinds of heated situations the judge’s impartial and unemotional judgment must prevail.

A substantial number of dependency petitions are brought by parents who throw up their hands and give up on children whom they view as ungovernable. A case is usually triggered by emotionally charged struggles between a parent and a rapidly maturing adolescent. Frequent parental complaints include the child’s refusal to obey, the parents’ disapproval of the adolescent’s friends, the child’s sexual activity, and the child’s abusive verbal behavior. See Note, Ungovernability: The Unjustifiable Jurisdiction, 83 Yale L.J. 383 (1974).

Dependency proceedings are properly initiated only for the benefit of the child and should not be used as punishment for the child. Nor should a parent attempt to gain custody of a child through the use of a dependency proceeding. See In re Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981). In all dependency proceedings it is especially important that the judge, as the neutral authority, exercise his or her considered judgment independently.

While the stipulation here was used improperly by the judge as a substitute for his own reasoned judgment, stipulations as to facts upon which the court may base its adjudication of dependency may be proper. In some cases it may be less painful and more expeditious for the parties to enter into a stipulation rather than have the relevant facts elicited by testimony at the hearing. Before accepting the stipulation the judge must be satisfied that the facts are credible and solidly based and not the product of speculation as to what the child may do in the future. In re Mark T. Furthermore, to be accepted by the court, such stipulation must of course be joined by all the parties. If accepted by the court, the stipulation has evidentiary value and may be considered alone or in conjunction with other evidence. The judge must consider all of the evidence presented as well as the relevant law to arrive at a reasoned decision regarding dependency.

We conclude that in the case sub judice the requirements of Section 6341 were not satisfied, inasmuch as the judge did not make an independent determination of dependency. We remand for a new hearing.

3

Appellant also contends that the trial court erred in proceeding with the dependency hearing in the absence of an effective waiver of counsel by appellant. We agree. We hold that an effective waiver of a party’s right to counsel requires (1) that the trial court explain the benefits of assistance of counsel and inform the party that if he or she is indigent, counsel will be provided to him or her at no cost, and (2) that the party affirmatively waive the right to counsel on the record.

As a party to the dependency proceeding, appellant had a right to counsel pursuant to 42 Pa.Cons.Stat.Ann. § 6337 (Purdon 1982):

[A] party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable.

The term “party” is not defined in the Juvenile Act. Nor do we attempt to define its exact parameters here; the fact patterns of dependency cases are too variable to permit us to establish one definition that would be appropriate for all cases. We have held that the parents of a child sought to be adjudicated dependent are parties entitled to court-appointed counsel. In re S.N.W., 362 Pa.Super. 295, 524 A.2d 514 (1987). Appellant in the case sub judice is not the juvenile’s parent. However, we are persuaded that appellant merits the status of a party based on either of two considerations: first, that she is the legal custodian of the juvenile; second, that it is her care and control of the juvenile that is in question.

The trial court in the case sub judice held that appellant was entitled to counsel, but found that she waived that right at the dependency hearing. We disagree. The record reveals that at the beginning of the hearing the court advised appellant:

All right, Mrs. [Y], you are allowed to proceed without counsel. If you want to represent yourself, you may do that. However, I should advise you that if at any time during the proceedings you wish to be represented and cannot afford an attorney, why, you may request the Agency to assign counsel to represent you. For that purpose the Agency maintains a roster of independent attorneys who have nothing to do with the Agency who would be assigned to represent you if you felt you wanted an attorney at any time.
All right. Let me hear from counsel [for Michael Y. and the Agency] then.

The transcript does not show that appellant made any responses to the court’s statement. We find on the basis of this record that appellant did not effectively waive her right to counsel.

It is fundamental that effective waiver of a right requires that the party be adequately apprised of the nature of the right and the consequences of waiving it so as to permit an informed decision to waive or not. In re Saladin, 359 Pa.Super. 326, 518 A.2d 1258 (1986). It is therefore incumbent upon the trial court to inform a party who appears at a dependency hearing without counsel that he or she has a right to counsel and to explain how counsel could be beneficial. In addition, because a party’s decision to waive counsel and proceed unrepresented is obviously affected by the cost of obtaining counsel, the court must also explain that if the party is indigent, counsel will be appointed to represent the party without cost. In re S.N. W.

In discussing the benefits of counsel, the court might indicate that counsel can help the party prepare testimony and locate witnesses; explain the legal significance of what goes on at the dependency hearing itself; and preserve the party’s post-hearing rights to petition for reconsideration and to appeal. The trial court’s description of the benefits of counsel need not be exhaustive, nor is any one of the above-listed statements indispensable. On appeal, the question will be: did the court’s instruction to the party, taken as a whole, convey sufficient information regarding the benefits of counsel and make clear that if he is indigent he is entitled to court-appointed counsel without cost? If it does, the party’s decision not to avail himself of counsel is an informed one, and waiver of the right to counsel is effective.

There are clear benefits to providing counsel. The assistance of someone trained in the law helps ensure that all relevant information will be brought out at the hearing. In the case sub judiee Mrs. Y. stated in her motion for reconsideration that she could have testified that Michael had been absent from school because of his attendance at his mother’s funeral and the development of problems caused by her death. This testimony was. obviously relevant to a petition for dependency based partly on repeated absences from school. Had Mrs. Y. been represented by counsel, this information would have been elicited at the hearing and could have been considered by the trial court in its assessment of whether Michael wa,s a dependent child or not. In addition, the active participation of the parties most directly affected by the dependency proceedings enhances their perception of the fairness of the proceedings and may promote their compliance with the disposition ordered by the court.

Nevertheless, if after proper explanation by the court, the party declines counsel, the court must elicit, on the record, a statement that the party declines to have counsel appointed for him or her. In the case sub judiee, the transcript does not show that appellant made any response to the court’s brief statement to her regarding her right to counsel. We therefore find that she did not effectively waive her right to counsel.

Appellee argues that, having been advised of her right to court-appointed counsel, appellant’s silence should be construed as an affirmative statement that she did not desire counsel at that time. We disagree. Appellant’s interest here — the continued custody of her great-grandson Michael — is too important, and the mandate of Section 6337 of the Juvenile Act that the court shall ascertain whether a party desires counsel too strong, to permit us to accept appellee’s argument that silence acts as a waiver.

Reversed and remanded for proceedings consistent with this opinion.

WIEAND, J., concurs in the result.

      . 42 Pa.Cons.Stat.Ann. § 6302 (Purdon 1982) provides in relevant part:
      “Dependent child.” A child who:
      (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;
      (2) has been placed for care or adoption in violation of law;
      (3) has been abandoned by his parents, guardian, or other custodian;
      (4) is without a parent, guardian, or legal custodian;
      (5) while subject to compulsory school attendance is habitually and without justification truant from school;
      (6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;
      (7) is under the age of ten years and has committed a delinquent act;
      (8) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6); or
      (9) has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (6).

        Review of the Agency’s petition indicates that they considered Michael to be a dependent child based upon the criteria in subsections (1) and (6).

      . Because we reverse the order of the trial court based on appellant’s first two assignments of error, we need not address the third.


author: TAMILIA, Judge:

text:
    530 A.2d 422
    COMMONWEALTH of Pennsylvania v. Louie HEBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed July 16, 1987.
    Reargument Denied Sept. 3, 1987.

      Robert H. Isbell, Sharon, for appellant.
    James P. Epstein, District Attorney, Sharon, for Com., appellee.
    Before: CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

This case involves a timely appeal of an extradition Order entered on February 3, 1987, by the Court of Common Pleas of Mercer County, ordering that appellant, Louie Hebert, be extradited to the state of Florida to face charges of grand theft. The court stayed extradition pending disposition of the appeal on the merits.

Appellant claims the lower court erred in acting on the Governor’s warrant without the Commonwealth first proving that the signature appearing on the warrant was in fact former Governor Richard Thornburgh’s signature. Without citation to case law, appellant argues that “by implication or extrapolation”, 42 Pa.C.S. § 9128 requires that some proof of the Governor’s personal signing of the warrant is necessary. Brief for Appellant at 7. We agree with the lower court that appellant’s argument is meritless.

Section 9128 of Title 42 provides:

If the Governor decides that the demand should be complied with he shall sign a warrant of arrest which shall be sealed with the State seal and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.

This section only requires that the Governor “sign” the warrant and that the warrant be “sealed” with the State seal. These requirements were met. There is no requirement that the Governor’s signature be authenticated. Further, no burden of proof can be implied upon the Commonwealth to authenticate or exemplify the signature beyond the affixing of the seal of Pennsylvania. Appellant presents no evidence to rebut the regularity of the warrant and, without more, cannot expect that the Commonwealth must verify or authenticate the warrant any further than that required by the statute.

Appellant’s other claim is that there was insufficient identification of appellant as the perpetrator of the crime in Florida. As the Supreme Court held in Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1970) (interpreting the former Uniform Criminal Extradiction Act, 19 P.S. § 191.10 et seq., substantially reenacted in 42 Pa.C.S. § 9121 et seq.), such a contention is irrelevant at this stage of a case, since the lower court was not concerned with identifying the perpetrator of the crime, but only with identifying appellant as the person named in the extradition papers as charged with the crime. In such a case, the Commonwealth’s burden is measured against the “preponderance of the evidence” standard. Commonwealth v. Rowe, 264 Pa.Super. 67, 398 A.2d 1060 (1979). In extradition proceedings, hearsay is admissible. Commonwealth v. Williams, 323 Pa.Super. 442, 470 A.2d 1001 (1984); Commonwealth v. Inadi, 303 Pa.Super. 409, 449 A.2d 753 (1982).

The Commonwealth’s only witness at trial was Brian J. Jarvis, an investigator with the Marion County Sheriff’s Department in Florida. He testified that the victim had known appellant for approximately five months prior to the theft charges (N.T. 2/3/87, p. 14), and that she even had contact with appellant several times after the theft in an effort to get him to return the stolen items (N.T. 2/3/87, p. 4). Mr. Jarvis also testified that the victim picked appellant’s photograph, while under oath, out of a photo lineup at the Florida State Attorney’s Office; this photo lineup was admitted as Commonwealth’s Exhibit 1 (N.T. 2/3/87, pp. 5, 10). After a review of appellant’s testimony, we conclude that appellant offered no testimony or evidence to rebut the testimony of Mr. Jarvis with respect to whether he was the man sought by the Florida authorities (N.T. 2/3/87, pp. 48-56). Therefore, we find that the Commonwealth has met their burden by a preponderance of the evidence.

Order affirmed.

      . More specifically, appellant states he:
      [I]s contending that the document, on its face, does not show conclusively that it was signed by the Governor as required by statute, and that the Commonwealth must prove this and they must prove this by way of attaching a verification or an exemplification or an affidavit or some other document which authenticates the fact that the Governor has personally signed the warrant.
      Brief for Appellant at 11.


text:
    530 A.2d 423
    COMMONWEALTH of Pennsylvania v. Adolph P. BLACK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1987.
    Filed Aug. 14, 1987.

      Lawrence J. Hracho, Reading, for appellant.
    Charles B. Coleman, Assistant District Attorney, Reading, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.

       President Judge Cirillo has been substituted on this panel for the late Justice Roberts.

   BECK, Judge:

This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Berks County following appellant’s conviction for possession of controlled substances. Appellant contends that the trial court erred by failing to suppress evidence. The police had seized the evidence pursuant to a warrantless search of a private club which was licensed to serve alcohol by the Pennsylvania Liquor Control Board (“PLCB”). We agree that the police search in question was not authorized by the Liquor Code and that items obtained as a result of this search should not have been admitted into evidence. Accordingly, we vacate judgment of sentence and remand for a new trial.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence____ On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact____
In considering whether the record supports the court’s finding [sic] of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradict-ed____ In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal____

Commonwealth v. Weik, 360 Pa.Super. 560, 562, 521 A.2d 44, 45 (1987) (citing Commonwealth v. Eliff, 300 Pa.Super. 423, 428-29, 446 A.2d 927, 929-30 (1982)). Viewed in the light most favorable to the Commonwealth, the facts established by the record are as follows.

Appellant Adolph Black is the manager and trustee of the Second Story Lounge. The Second Story Lounge is a private club reserved for members of the Reading Veteran Volunteer Firemans’ Association. The club is located on the second floor of a building on Franklin Street in Reading, Pennsylvania.

In order to gain admittance to the club, one must first enter a vestibule, ring a buzzer, and display identification as to membership to a doorman seated behind a sliding partition. Behind the vestibule is a flight of stairs which leads to the second floor. On the second floor are a “back room” and a “front room” located at opposite ends of a corridor. The “back room” is an entertainment area where alcoholic beverages are served to club members. The “front room” is listed as a card room on the PLCB’s forms and is part of the premises licensed for the sale of alcohol. The “front room”, however, is actually an apartment which was used by appellant as his personal office.

In 1984, Agent Jan F. Llewellyn, an enforcement officer for the PLCB, was assigned to investigate a complaint concerning the Second Story Lounge. This complaint was based on information relayed to the PLCB by the Vice Division of the Reading Bureau of Police. Agent Llewellyn contacted the vice squad office and requested that municipal police participate in an “open inspection” of appellant’s club. He later stated that the purpose of this inspection was to check for “possible minors and to establish the names of individuals who were working on the premises that evening.” R.R. at 8a.

At 4 A.M. on December 15, 1984, Vice Squad Police Officer Richard Garipoli accompanied several PLCB investigators on an unannounced inspection of appellant’s club. Officer Garipoli did not secure a warrant beforehand. He proceeded directly to appellant’s office and entered without first obtaining appellant’s consent. The officer noticed appellant standing next to a table on which he observed in plain view items which the officer believed to be small amounts of marijuana, cocaine, and methamphetamine. The officer then departed; he returned with a valid search warrant at 5 A.M. and seized the suspected contraband.

Appellant was arrested and charged with offenses under the Controlled Substance, Drug, Device and Cosmetic Act. Pa.Stat.Ann. tit. 35 §§ 780-101 to 144 (Purdon 1977 & Supp.1987). His pre-trial omnibus motion was denied. After a trial by jury, he was convicted and sentenced to three to twelve months imprisonment. Following the denial of post-verdict motions, he filed this appeal.

Appellant asserts that Officer Garipoli infringed rights guaranteed to him by the fourth amendment of the federal constitution. For purposes of the fourth amendment analysis, we shall focus primarily on the officer’s initial warrantless search of appellant’s office. If Garipoli’s initial entry into the club was illegal, his presence on the club premises violated appellant’s fourth amendment rights. This constitutional violation would destroy the validity of any search. The fact that the officer while illegally on the premises saw drugs in plain view and later procured a warrant would not cure the constitutional violation. A policeman ordinarily need not secure a warrant before confiscating contraband which he observes in plain view; however, he cannot properly seize evidence which he uncovers after entering a place where he has no legal right to be. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). Moreover, once an illegal search has taken place, a warrant issued after the fact cannot justify the seizure of evidence where that seizure is a direct result of the prior police misconduct. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We must conduct a two-step inquiry in order to determine if the officer’s original warrantless intrusion violated the fourth amendment. We first consider whether appellant had a legitimate expectation of privacy in the place which was invaded. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). We must then consider whether the officer’s search falls within a recognized exception to the general rule that a warrantless search of a constitutionally protected area is per se unreasonable. See Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1730-1731, 18 L.Ed.2d 930 (1967); Commonwealth v. Weik, 360 Pa.Super. at 562-564, 521 A.2d at 46.

In Commonwealth v. Weimer, 262 Pa.Super. 69, 396 A.2d 649 (1978), we reviewed the fourth amendment claim of employees of a private hunting club which had been subjected to a warrantless search by state troopers. We stated that “[t]he reasonableness of one’s expectations will necessarily turn on the facts in the individual case evincing the strength of that belief and the measures taken to ensure privacy.” 262 Pa.Super. at 74-75, 396 A.2d at 651. We noted that at the hunting club enforcement of security measures was so lax that the state troopers had been able to walk onto the premises without showing membership cards. However, in the instant case, the Commonwealth has not disputed that the Second Story Lounge admitted only members who displayed proper identification to a doorman employed for the express purpose of excluding the general public.

We conclude that as a general matter and as against most intrusions, appellant had a legitimate expectation of privacy in the premises of the private club which he managed. This expectation of privacy is worthy of constitutional protection. As the United States Supreme Court stated in See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967), “The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” In addition, appellant’s constitutional claim is strengthened by the fact that Officer Garipoli insisted on entering the office in which appellant worked. “As with the expectation of privacy in one’s home, such an expectation in one’s place of work is ‘based upon societal expectations that have deep roots in the history of the [Fourth] Amendment.’ ” O’Connor v. Ortega, — U.S. —, —, 107 S.Ct. 1492, 1498, 94 L.Ed.2d 714, 722 (1987) (citing Oliver v. United States, 466 U.S. 170, 178 n. 8, 104 S.Ct. 1735, 1741 n. 8, 80 L.Ed.2d 214 (1984)). See also Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (vice-president of union local has standing to challenge warrantless police search of his office).

Nevertheless, the fact that the fourth amendment applies to government searches of a particular setting does not mean that every warrantless intrusion into that setting involves a constitutional violation. Even where a defendant is ordinarily entitled to regard an area as private, certain searches conducted for special purposes may pass constitutional muster. See O’Connor v. Ortega, supra (government employees ordinarily have reasonable expectation of privacy in their offices but some searches by supervisors to enforce work-related regulations are reasonable); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (students have reasonable expectation of privacy in personal effects but some searches by faculty to enforce school regulations are reasonable). When an establishment has been licensed for the sale of alcohol, a limited exception to the warrant requirement is recognized for regulatory searches. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). See Commonwealth v. Lutz, 512 Pa. 192, 201, 516 A.2d 339, 344 (1986) , vacated on other grounds sub nom. Pennsylvania v. Lutz, — U.S. —, 107 S.Ct. 1560, 94 L.Ed.2d 754 (1987). We must therefore decide whether Officer Garipoli’s search of the Second Story Lounge falls within the scope of this exception.

In Colonnade, an agent of the Internal Revenue Service (IRS) entered the place of business of a licensed liquor dealer in order to check for violations of excise tax laws. The dealer’s employees refused to allow an inspection of a locked liquor storeroom on the grounds that the IRS agent did not have a search warrant. The IRS agent broke the storeroom’s lock, conducted a search, and seized bottles of alcohol. The question before the Court was whether these bottles should be returned to the dealer and suppressed as evidence.

The United States Supreme Court first noted that war-rantless searches of liquor stores by the IRS were authorized by a federal statute. This statute was found to be constitutional in light of the long history of extensive regulation of the liquor industry and the government’s special interest in controlling the liquor trade; “[a]s respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures.” 397 U.S. at 77, 90 S.Ct. at 777. However, upon interpreting the statute in question, the Court determined that Congress did not grant IRS agents the right to force their way past locked doors. Since the agent in Colonnade had exceeded the authority which had been extended to him by the statute, the justices found that his warrantless search of the liquor storeroom must be judged by the same fourth amendment standards which generally apply to government intrusions onto private commercial property. Accordingly, the evidence seized as a result of the search was suppressed.

The Colonnade decision illustrates the importance of ascertaining whether a statute authorizes a search and if it does, the permissible extent of the search, i.e., whether a particular warrantless search of a business has been sanctioned by the legislature. Since Colonnade, both the United States Supreme Court and Pennsylvania’s appellate courts have upheld warrantless searches of “closely regulated industries” in cases in which the search was authorized by a statute or by a duly promulgated regulation. See Commonwealth v. Runkle, 287 Pa.Super. 422, 430 A.2d 676 (1981) and In re Catering Club Liquor License, 63 Pa. Commw. 313, 438 A.2d 662 (1981) (searches by PLCB agents pursuant to Liquor Code). See also New York v. Burger, — U.S. —, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (search of automobile junkyard pursuant to New York Vehicle and Traffic Law); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (search of stone quarry pursuant to Federal Mine Safety and Health Act of 1977); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (search of weapon dealer pursuant to federal Gun Control Act of 1968); Department of Envtl. Resources v. Fiore, 512 Pa. 327, 516 A.2d 704 (1986) (Larsen, concurring) (search of hazardous waste disposal facility pursuant to Solid Waste Management Act); Peterson v. Pennsylvania State Horse Racing Comm ’n, 68 Pa.Commw. 353, 449 A.2d 774 (1982) and Lanchester v. Pennsylvania State Horse Racing Comm’n, 16 Pa.Commw. 85, 325 A.2d 648 (1974) (searches on grounds of race track pursuant to Rules of Racing adopted in furtherance of Thoroughbred Horse Race Meeting Corporations Act). This approach has been justified on the grounds that the proprietor of a business in such an industry is on notice that his property will be searched in the manner provided by law. See Biswell, 406 U.S. at 316-317, 92 S.Ct. at 1596-1597; Commonwealth v. Lutz, 512 Pa. at 201-204, 516 A.2d at 344-345.

On the other hand, it is equally true that “[warrantless] inspections of commercial property may be unreasonable if they are not authorized by law ...” Donovan v. Dewey, 452 U.S. at 599, 101 S.Ct. at 2538. In the Leonardziak Liquor License Case, 210 Pa.Super. 511, 233 A.2d 606 (1967), detectives from the Reading police department, acting independently of the PLCB, entered a licensed club without a valid warrant and seized gambling paraphernalia. We suppressed this evidence because this search was not authorized by the Liquor Code. Similarly, in State v. Williams, 84 N.J. 217, 417 A.2d 1046 (1980), the New Jersey Supreme Court suppressed evidence seized from a tavern storage room by police detectives who conducted a warrant-less search which was not expressly authorized by New Jersey’s liquor control statute.

We interpret these cases as striking a careful balance between the government’s need to regulate liquor traffic and the liquor licensee’s interest in personal privacy. Consistent with the fourth amendment, state legislatures have broad (though not unlimited) power to design procedures for warrantless inspections of places where alcohol is sold. Yet, the licensee still retains a legitimate expectation of privacy as to searches which represent a significant departure from the regulatory system which the legislature has approved. By adopting this approach, we recognize the essentially private nature of licensed clubs which exclude the general public. We also seek to preserve the1 integrity of statutory schemes which confine extraordinary powers of search and seizure to specialized investigators acting under carefully defined circumstances.

With this in mind, we confront the precise issue posed by Officer Garipoli’s entry into the Second Story Lounge; is a warrantless police search of a licensed club which occurs during the course of a joint investigation by police and PLCB personnel authorized by the Liquor Code? In order to decide whether the statute authorizes the police to conduct warrantless searches under such circumstances, we must closely examine the Code provisions which govern investigations of drinking establishments.

Section 2-209 provides in part:

Such employes of the board as are designated “enforcement officers” or “investigators” are hereby declared to be peace officers and are hereby given police power and authority throughout the Commonwealth to arrest on view, except in private homes, without warrant, any person actually engaged in the unlawful sale, importation, manufacture or transportation, or having unlawful possession of liquor, alcohol or malt or brewed beverages, contrary to the provisions of this act or any other law of the Commonwealth. Such officers and investigators shall have power and authority, upon reasonable and probable cause, to search for and to seize without warrant or process, except in private homes, any liquor, alcohol and malt or brewed beverages unlawfully possessed, manufactured, sold, imported or transported, and any stills, equipment, materials, utensils, vehicles, boats, vessels, animals, aircraft, or any of them, which are or have been used in the unlawful manufacture, sale, importation or transportation of the same.

Pa.Stat.Ann. tit. 47, § 2-209 (Purdon 1969) (emphasis added).

Section 5-513 provides in part:

Every place operated under license secured under the provisions of this article where any alcohol ... covered by the license is ... used ... in connection with a licensee’s business, shall be subject to inspection by members of the board, or by persons duly authorized and designated by the board at any and all times of the day or night, as they may deem necessary, (a) for the detection of violations of this act or of the rules and regulations of the board promulgated under the authority of this act, or (b) for the purpose of ascertaining the correctness of the records required by this act to be kept by licensees and the books and records of licensees, and the books and records of their customers, in so far as they relate to purchases from said licensees, shall at all times be open to inspection by the members of the board or by persons duly authorized and designated by the board for the purpose of making inspections as authorized by this section. Members of the board and the persons duly authorized and designated by the board shall have the right, without fee or hindrance, to enter any place which is subject to inspection hereunder, or any place where records subject to inspection hereunder are kept, for the purpose of making such inspections.

Pa.Stat.Ann. tit. 47, § 5-513 (Purdon 1969) (emphasis added).

Section 4-493(21) provides that it shall be unlawful

[f]or any licensee, or his servants, agents or employes, to refuse the board or any of its authorized employes the right to inspect completely the entire licensed premises at any time during which the premises are open for the transaction of business, or when patrons, guests or members are in that portion of the licensed premises wherein either liquor or malt or brewed beverages are sold.

Pa.Stat.Ann. tit. 47, § 4-493(21) (Purdon 1969) (emphasis added).

In the case sub judice, we conclude that Officer Garipoli’s search of appellant’s office clearly transcended this statutory framework. The statute specifies those categories of individuals who have been entrusted by the legislature to enforce the liquor laws by conducting special searches and inspections, i.e., enforcement officers, investigators, members of the board, and persons duly authorized by the board.

A municipal policeman such as Officer Garipoli is certainly not a PLCB “enforcement officer” or “investigator”. See Fraternal Order of Police v. Pennsylvania Labor Relations Bd., 71 Pa.Commw. 316, 454 A.2d 686 (1983), aff'd, 502 Pa. 541, 467 A.2d 323 (1983). Nor is a municipal policeman a “member of the board”. Furthermore, Officer Garipoli did not become a “[person] duly authorized and designated by the board” simply by raiding appellant’s club at the request of PLCB Agent Llewellyn. In the absence of any evidence of record as to whether Agent Llewellyn’s request was documented or approved by his superiors, we surely cannot regard the invitation extended to Officer Garipoli as a form of due authorization to inspect within the meaning of the statute.

Moreover, section 5-513 must be read in para materia with section 4-493(21); viewed together, the two sections indicate that “persons duly authorized and designated by the board” were intended to be “authorized employes” of the board who are under the direct supervision of board members.

We therefore hold that the Liquor Code in its present form does not authorize warrantless police searches of private licensed clubs. This does not mean that it would be beyond the power of the General Assembly to delegate the responsibility for conducting administrative searches of licensed clubs to the police. Cf. New York v. Burger, — U.S. at —, 107 S.Ct. at 2651, 96 L.Ed.2d at 623 (upholding constitutionality of statute which explicitly authorizes police officers to inspect automobile junkyards). Yet until licensees are put on notice by statute or valid regulation that their clubs are subject to inspection by the police, licensees will remain entitled to full fourth amendment protection as against police intrusions.

In summary, appellant had a reasonable expectation of privacy in his club for fourth amendment purposes. Therefore, the police were required to obtain a warrant before searching the club unless the Commonwealth could show that the police search was within a recognized exception to the warrant requirement. Since Officer Garipoli acted without authorization, he was not exempt from the warrant requirement. Thus, his search was illegal, and the evidence seized as a result of the search should have been excluded from appellant’s trial.

Judgment vacated and case remanded for a new trial. Jurisdiction is relinquished.

      . Pa.Stat.Ann. tit. 47, §§ 1-101 to 9-902 (Purdon 1969 & Supp.1987).

      . This summary of the facts is based on the transcript of appellant’s preliminary hearing (R.R. at 5a-24a) and on a stipulation entered into by the Commonwealth and the defense (document filed with original record on July 15, 1985). The defendant waived his right to a suppression hearing, and the parties agreed that the preliminary hearing transcript and the stipulation would serve as the factual basis for the suppression court’s decision.

      . Appellant raises ten issues before this court. Since we reverse on the basis of the first allegation of error, we do not reach the remaining nine issues.

      . The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      U.S. CONST, fourth amendment.

      . A "closely regulated industry” traditionally has been defined as an industry in which the government has a special interest either because of a long history of pervasive state regulation or because of the exceptional nature of the risks involved. See Commonwealth v. Lutz, 512 Pa. at 201-204, 516 A.2d at 344-345. The United States, Supreme Court recently expanded this definition to include additional industries such as automobile dismantling in which the "regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” New York v. Burger,-U.S.-, — n. 16, 107 S.Ct. 2636, 2645 n. 16, 96 L.Ed.2d 601, 615 n. 16 (1987) (citing Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981)).

      . This principle was underscored by the United States Supreme Court’s recent decision in New York v. Burger. The court held that:
      ... warrantless inspection ... even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a "substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made____ Second, the warrantless inspections must be “necessary to further [the] regulatory scheme." ... Finally, ... the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.
      — U.S. at —, 107 S.Ct. at 2643-44, 96 L.Ed.2d at 614 (citations omitted). It follows that an administrative search which is clearly not authorized by any regulatory statute or regulation is inconsistent with the fourth amendment.

      . Leonardziak reserved the issue of whether the police may ever conduct warrantless searches in the presence of properly authorized individuals. 210 Pa.Super. at 514, 233 A.2d at 608.

      . We have also considered the regulations adopted pursuant to the Liquor Code. 40 Pa.Code §§ 1.1-17.1

      . Section 2-201 of the Code provides in part:
      An independent administrative board to be known as the "Pennsylvania Liquor Control Board” is hereby created. The board shall consist of three members to be appointed by the Governor by and with the advice and consent of two-thirds of all members of the Senate.
      Pa.Stat.Ann. tit. 47, § 2-201 (Purdon 1969).

      . We express no opinion as to the effect of any changes in the state liquor laws adopted during or after June, 1987.