author: WIEAND, Judge:

text:
    639 A.2d 478
    Jarvis CRUET, Appellant, v. CERTAIN-TEED CORPORATION, Berisford Taffe and FVT Trucking Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed March 24, 1994.

      Eric G. Marttila, Philadelphia, for appellant.
    Joseph H. Riches, Philadelphia, for Certain-Teed, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the owner of commercial property in New Jersey has a duty to warn motorists on an abutting public highway that vehicles may be entering the public highway from the owner’s property. The trial court held that there was no such duty ánd entered a compulsory nonsuit in favor of the defendant property owner. When the trial court denied a motion to remove the nonsuit, the plaintiff appealed. After careful review, we affirm.

On March 14, 1986, while driving a vehicle northwardly on County Road 720, a public highway in Winslow Township, New Jersey, Jarvis Cruet collided with a truck driven by Berisford Taffe, an employee of FVT Trucking Company, as it entered County Road 720 from property owned by Certain-Teed Corporation. Both Cruet, who sustained serious injuries as a result of the accident, and Taffe were residents of New Jersey and possessed New Jersey licenses. Cruet commenced an action against Certain-Teed in Philadelphia, but the action was transferred to Chester County, where Certain-Teed caused FVT Trucking and Taffe to be joined as additional defendants. Taffe had settled with Cruet prior to commencement of the instant action, but he and FVT Trucking were joined to preserve Certain-Teed’s right of contribution in the event Certain-Teed were found liable.

Testimony at trial established that County Road 720 was 25 feet,.3 inches in width, fairly straight, and posted at 50 m.p.h. The highway rose slightly in elevation as one approached the Certain-Teed property from the south. The property adjacent to Certain-Teed on the south was undeveloped and contained a border of pine trees. The driveway into and out of the Certain-Teed property was visible to a vehicle approaching from the south for a distance of at least 450 feet, and a truck, because of its height, would have been visible for a slightly greater distance. From the Certain-Teed driveway, a driver would have had an unobstructed view of approximately 550 feet. At the time of impact, plaintiffs expert said, the truck had traversed 20 feet of the highway, and plaintiffs vehicle was moving at a speed of 18-20 m.p.h. The trial court held that Certain-Teed had no duty to warn approaching motorists that they were approaching a driveway to a commercial property.

In Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983), the Court explained the circumstances under which a compulsory nonsuit may be entered as follows:

A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together [with] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established.
However, it is also well settled that a jury can not be permitted to reach its verdict on the basis of speculation or conjecture; and that a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. In addition, it is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has met this burden.

Id. at 638-639, 462 A.2d at 682-683 (citations omitted). See also: McDonald v. Aliquippa Hospital, 414 Pa.Super. 317, 319-320, 606 A.2d 1218, 1219-1220 (1992); Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 8-9, 545 A.2d 289, 292-293 (1988), aff'd, 528 Pa. 113, 595 A.2d 56 (1991).

Actionable negligence requires “the existence of a duty to act.... arising by reason of the actor’s creation of an unreasonable risk of foreseeable harm or one judicially imposed because of policy considerations.” Griesenbeck v. Walker, 199 N.J.Super. 132, 136, 488 A.2d 1038, 1040 (1985). The question is not merely whether an event is foreseeable; rather, the question is whether a duty exists to take measures to guard against such an event. Id.

Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution.

Id. at 137, 488 A.2d at 1041, quoting Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583, 186 A.2d 291, 293 (1962).

Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549 [133 A.2d 12] (1957). In the field of negligence, duty signifies conformance “to the legal standard of reasonable conduct in the light of the apparent risk”; the essential question is whether “the plaintiffs interests are entitled to legal protection against the defendant’s conduct.” Prosser on Torts (2d ed.), § 36.

Griesenbeck v. Walker, supra 199 N.J.Super. at 137, 488 A.2d at 1041, quoting Wytupeck v. Camden, 25 N.J. 450, 461-462, 136 A.2d 887, 893 (1957).

Section 349 of the Restatement (Second) of Torts is as follows:

A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.

This section of the Restatement is a part of the law of New Jersey. See: MacGrath v. Levin Properties, 256 N.J.Super. 247, 606 A.2d 1108 (1992). In MacGrath, the court held that the owner of a shopping center had no duty to provide a customer with safe passage across an abutting state highway or to warn of the dangers inherent in traversing the highway. In so doing, the court observed that New Jersey has followed the Restatement rule and that the flow of traffic on the highway and the movement of pedestrians across the highway was subject to control by the state.

MacGrath can be distinguished factually from the instant case, and our research has disclosed no decision by the New Jersey appellate courts which is on all fours with the facts of this case. Nevertheless, it seems clear that the courts of New Jersey would follow Section 349 of the Restatement (Second) of Torts; and the courts of other jurisdictions have uniformly applied the Restatement rule to deny recovery under facts similar to those in this ease.

In Dawson v. Ridgley, 554 So.2d 623 (Fla.Dist.Ct.App.1989), the court held that the owner of a shopping center had no duty to a passing motorist to maintain his property in such a manner that a driver exiting the property had a completely unobstructed view of intersecting traffic. In that case, the plaintiff, a passenger on a motorcycle which had been passing the shopping center on an adjacent highway, had sustained injuries when a vehicle had pulled out of the shopping center exit and collided with the motorcycle. The plaintiff alleged that the owner of the shopping center had negligently constructed the exit so near a concrete telephone pole located slightly off its property, as to obstruct the vision of drivers exiting the shopping center. The court concluded that the defendant did not owe a duty to the plaintiff and affirmed the trial court’s grant of summary judgment in favor of the defendant.

In Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189 (Tex.Ct.App.1988), the plaintiff had been injured when her car collided with a tractor-trailer which had been exiting from defendant’s plant and turning onto an abutting two lane highway. Plaintiff argued that the defendant had negligently designed its facilities so that a tractor-trailer could not turn onto the public highway without blocking both lanes of the highway. The court held the property owner was entitled to summary judgment, saying “a landowner’s duty to exercise reasonable care not to endanger the safety of persons on an abutting highway does, not create an obligation to guard passing motorists against the possible negligence of an independent contractor over whom the landowner exercises no control and whose competence to perform his duties the landowner has no reason to doubt.” Id. at 191-192. With respect to the plaintiffs argument that the landowner had allowed a dangerous condition to exist, the court said:

In this case, [the landowner] did not discharge onto [the highway] an inanimate, incognizant or inherently dangerous entity. Rather, an independent contractor, hired by the [lándowner] to deliver its sheetrock, left [the plant] and was involved in an accident on the highway adjacent---- It is also uncontroverted that once [the truck driver] left [the] property, [the landowner] had no control over him. Generally, a landowner does not have a duty to see that his independent contractor performs his work in a safe manner. Nor is a person bound to anticipate negligent or unlawful conduct on the part of another.

Id. at 191 (citations omitted).

In Snyder Elevators, Inc. v. Baker, 529 N.E.2d 855 (Ind.App.1988), the defendant landowner operated a grain elevator on his premises. In 1986, the Commodity Credit Corporation designated Snyder as a recipient of forfeited grain. Snyder’s parking lot only had space for 25 trucks, which was inadequate for the 85 or 95 trucks which began to arrive daily. Consequently, trucks would line up along neighboring streets, waiting to unload their grain. When the plaintiff passed through a nearby intersection, he collided with a vehicle operated by Tonya Buck. Plaintiff sued the owner of the grain elevator, contending that its negligence in failing to provide adequate parking had resulted in the parking of trucks in a manner which had obstructed Buck’s view of vehicles passing through the intersection. The trial court entered summary judgment in favor of the landowner, and the judgment was affirmed on appeal. The appellate court observed that plaintiff was “a member of the public-at-large, not having with the defendant any of the common relationships traditionally imposing a duty of reasonable care: landowners to invitees, common carriers to passengers, and innkeepers to guests.” Id. at 858. Although the court agreed that a business owner may owe a duty when the activities conducted on its property create a risk of injury off the premises, it held that such a duty “should be limited to cases in which the defendant has maintained a hazardous condition or conducted some activity on the premises, beyond the mere fact of operating a business, which causes the off-premises injury.” Id. Therefore, the court concluded that the law did not impose a duty on the business to guard against injury to the general public from negligent acts of a patron over which the business had no control and which caused injury to another off the business property. Id. at 859.

Finally, in Allen v. Mellinger, 156 Pa.Commw. 113, 625 A.2d 1326 (1993), Elizabeth Allen was injured when she attempted to make a left turn from a highway into the parking lot of a store. As she was making the turn, she collided with a truck coming from the opposite direction. Because Allen was at the crest of a hill when she attempted to turn, her visibility of drivers travelling in the opposite direction was limited. At the location where she stopped to turn, the highway was marked with a broken double yellow center line. Allen brought suit against the owners of the store and parking lot, alleging that they had breached a duty of care by failing to warn her of the dangerous condition and by failing to erect signs indicating where it was safe to turn into the parking lot. The trial court entered summary judgment in favor of the defendant store owners on the basis that § 349 of the Restatement of Torts absolved them from liability. The Commonwealth Court affirmed the grant of summary judgment on appeal and stated:

Allen has failed [to establish a prima facie case of negligence]. The [property owners] are not liable to Allen because, by her own admission, she collided with the truck in the center of the northbound lane of the highway, located off the [defendants’] property. As Section 349 of the Restatement makes clear, the [defendants], as abutting landowners, owed no duty to Allen, which could be breached, to maintain a public highway in a safe condition.

Id. at 118-19, 625 A.2d at 1329. The court also observed that the landowners were not responsible for erecting signs on the highway because this was exclusively the responsibility of the Commonwealth of Pennsylvania. Id. See also: Gelbman v. Second Nat’l Bank of Warren, 9 Ohio St.3d 77, 458 N.E.2d 1262 (1984). Cf. Allemand v. Zip’s Trucking Co., Inc., 552 So.2d 1023 (La.App.1989); Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind.App.1989).

In the instant case, the circumstances did not impose upon Certain-Teed a duty to take affirmative measures to prevent harm to the plaintiff from the negligence of third persons as plaintiff passed Certain-Teed’s property on a public highway. If appellant’s visibility was impaired, it is clear that such impairment had not been caused by a dangerous condition maintained by Certain-Teed on its premises, but by the contours of the highway maintained by public authority, and pine trees growing on the land of an adjoining property owner. The accident occurred on a public highway maintained by governmental authority, where the duty to warn motorists of dangerous conditions rested with the State or local government and not the owners of lands abutting the highway. Because Certain-Teed had no right to control the conduct of the drivers involved in this accident and because it had no duty to control the movement of vehicles on the public highway or warn of dangerous conditions thereon, the trial court properly entered a compulsory nonsuit in favor of the property owner.

Order affirmed.

      . The parties do not dispute that it is the law of New Jersey which is determinative of Certain-Teed’s duty, if any, to motorists on the public highway. See: Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179 (1994) for a review of the cases.

      . The decisions relied upon by appellant are not apposite. In Kolba v. Kusznier, 252 N.J.Super. 53, 599 A.2d 194 (1991), the court considered the duty of a property owner to maintain shrubbery on his property so as to prevent it from obstructing the vision of motorists on an abutting street. Similarly, in Weller v. McCormick, 52 N.J.L. 470, 19 A. 1101 (1890), the court was concerned with the liability of a property owner for injury caused when the dead branch of a tree fell and struck a pedestrian walking along a public road. Finally, the decision in Warrington v. Bird, 204 N.J.Super. 611, 499 A.2d 1026 (1985) "is a precedent only that a commercial establishment which provides parking facilities for its patrons across a public roadway has a duty to exercise reasonable care for their safe passage from there to the commercial establishment and back.” Ross v. Moore, 221 N.J.Super. 1, 6, 533 A.2d 398, 401 (1987).

      . We find no merit in appellant’s argument that the trial court abused its discretion by limiting the scope of testimony offered by appellant’s accident reconstruction expert.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    639 A.2d 482
    COMMONWEALTH of Pennsylvania, Appellant, v. William SLICK, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed March 25, 1994.

      Amil M. Minora, Asst. Dist. Atty., Scranton, for Com., appellant.
    Lawrence J. Monor, Scranton, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

We are asked to review the May 24, 1993, order of court granting the appellee/William Slick’s petition to quash an information charging him with accomplice to murder in the first and third degree filed by the appellant/District Attorney of Lackawanna County. We reverse.

The standard of review was articulated by our Supreme Court in In re Petition of Acchione, 425 Pa. 23, 227 A.2d 816, 820 (1967); namely:

... courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.

Accord Pennsylvania Social Services Local 668 v. Pennsylvania Labor Relations Board, 481 Pa. 81, 392 A.2d 256, 259-260 (1978).

Our review of the record discloses that on April 14, 1979, the body of Russell Loomis was found shot to death in Springbrook Township, Lackawanna County. It was not until 1991 that a Lackawanna County grand jury began to hear testimony concerning the homicide.

One of the accused, Ronald Hull, testified before the grand jury that he was present before the April 11, 1979, murder took place. The other co-conspirators were Richard Young, George Cornell and the appellant. This group met to discuss how to rid themselves of Loomis, who, at the time, was cooperating with an FBI investigation involving the conspirators’ business practices.

More specifically, Hull testified that on the day of the shooting, he saw Young, Cornell, Loomis and the appellant. It appears that, as a ruse, Loomis had been told by Hull and the others that he was going to be the recipient of a vehicle if he assisted in removing it from the woods. Hull also recalled that the group left a business establishment together and that Young informed Hull to take Loomis’ vehicle to the Wyoming Valley Mall and leave it there. Young informed Hull to phone Young’s brother-in-law to obtain a ride back from the mall.

Hull testified that he did as he was told and met Young and Cornell at Young’s mother’s home in Duryea, Pennsylvania, where Young and Cornell discussed the murder of Loomis.

With regard to the appellant’s role in the murder, Hull indicated before the grand jury that the appellant was present at a business establishment when Young and Cornell left in Loomis’ company on the night of the shooting. Hull further testified that the day following the incident the appellant. informed him “its over we’re safe” or words to that effect. Additionally, Hull disclosed that a few days prior to the killing, the appellant and Young were attempting to locate a pick and shovel in order to dig Loomis’ grave. The grand jury, based on all the evidence received, recommended that Young and Cornell be charged with first and third degree murder and conspiracy to commit murder. As for the appellant and Hull, the grand jury recommended that they be charged with conspiracy to commit murder. This was approved' by court order.

Procedurally, the grand jury’s presentment was used as the factual basis for the affidavit of probable cause leading to the issuance of arrest warrants for the appellant and his co-conspirators. Of note, contrary to the grand jury’s recommendation and the court’s order that it be adhered to, the Commonwealth charged the appellant with first and third degree murder, as well as conspiracy.

At the preliminary hearing, after the Commonwealth rested its case, the appellant’s motion to dismiss the first and third degree murder charges was granted, but the criminal conspiracy charge was held for court. Moreover, prior to the close of the hearing, the Commonwealth was permitted, over the appellant’s objection, to amend the complaint to charge him with first degree murder as an accomplice and third degree murder as an accomplice.

Following hearings on the appellant’s motion to quash the criminal information and his petition for habeas corpus, the court granted the petition and quashed the charges of accomplice to murder in the first and third degree. In opposition to the action taken, the Commonwealth perfected the instant appeal and raises the following question:

WHETHER THE SUPERVISING JUDGE OF AN INVESTIGATIVE GRAND JURY HAS THE AUTHORITY TO PREVENT THE DISTRICT ATTORNEY FROM PROSECUTING A WRONGDOER TO THE FULLEST EXTENT OF THE LAW OR WHETHER THE USE OF THE PRESENTMENT OF THE GRAND JURY AS AN AFFIDAVIT OR PROBABLE CAUSE FOR AN ARREST WARRANT LIMITS THE COMMONWEALTH TO CHARGING ACCORDING TO THE RECOMMENDATION CONTAINED IN THE PRESENTMENT[?]

Before embarking on a resolution of the issues posed, we wish to present an historical and legislative overview of the role of the grand jury to appreciate its purpose in the criminal justice system.

The grand jury system, as an institution, has existed since 1166. In re Grand Jury Proceedings, 813 F.Supp. 1451, 1458 (D.Col.1992) (Footnote omitted). In England, for example, the grand juries functioned exclusively as the King’s investigatory and accusatory arm. They were expected to reach out into the community, retrieve information of wrongdoing and report to the court. Indictments were based solely on the grand jurors’ rendition of the local gossip, under oath, before a judge. See Fields v. Soloff, 920 F.2d 1114, 1117 (2nd Cir.1990), citing R. Walker & M. Walker, The English Legal System 14-15 (1972). It is this historic practice of investigating and generating accusatory reports, called “presentments,” which constitute what has come to be known as the grand jury’s “sword” power. Id.

Slower to evolve was the role of the grand jury as a buffer against government prosecution—its “shield” function. In fact, in the Fourteenth century, grand juries were hearing charges brought by outside sources, listening to the evidence of others and witnesses of events under scrutiny. See P. Devlin, Trial by Jury 10-12 (1956). More specifically, deliberations began to focus on whether, not merely which, persons under government suspicion should be indicted. By the end of the Seventeenth century, the grand jury had matured into a independent and formidable power, i.e., juries refused to indict people perceived as innocent, despite intense pressure from the King. No longer instruments of the crown, they sought aggressively to defend against biased prosecutions. Fields, supra, 920 F.2d at 1117.

Grand jury practices expanded to the American colonies, where they devoted most of their time to indictments and presentments. See generally Younger, The People’s Panel: The Grand Jury in the United States, 1634-1941 (1963). However, it was the grand jury’s power to thwart unwarranted government persecution of innocent citizens which our founding fathers sought to preserve in the Fifth Amendment to the United States Constitution, which reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” This provision has not been interpreted to confer plenary indictment power upon the grand jury. See United States v. Cox, 342 F.2d 167, 189 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). As such, because indictments wield the power to ruin lives and reputations, concert of action between the grand jury and the government attorney has been labelled a sound precondition. Fields, supra, 920 F.2d at 1117. Stated otherwise, “[t]he authority of the prosecutor to seek an indictment has long been understood to be “coterminous with the authority of the grand jury to entertain [the prosecutor’s] charges.’ ” United States v. Williams, — U.S. —, —, 112 S.Ct. 1735, 1745, 118 L.Ed.2d 352 (1992), quoting United States v. Thompson, 251 U.S. 407, 414, 40 S.Ct. 289, 292, 64 L.Ed. 333 (1920). Nonetheless, the grand jury is an institution separate from the judicial branch, over whose functioning the courts do not preside, and this is “rooted in long centuries of Anglo-American history.” See Hannah v. Larche, 363 U.S. 420, 490, 80 S.Ct. 1502, 1544, 4 L.Ed.2d 1307 (1960). In fact, the whole history of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people. See United States v. Williams, supra, — U.S. at —, 112 S.Ct. at 1742 (Citations omitted), wherein it is written that:

The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate, criminal wrongdoing, and in the manner in which the power is exercised. “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ ” It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. The [federal] grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor [at the federal level] require leave of court to seek a grand jury indictment. And in its day-today functioning, the grand jury generally operates without interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy.

At the state level, however, the grand jury process varies with the jurisdiction. This is the result of the Fifth Amendment right to indictment by a grand jury not being incorporated by the Due Process Clause of the Fourteenth Amendment, and, accordingly, does not pertain to the states. See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884); Fields v. Soloff, supra, 920 F.2d at 1118.

In this Commonwealth, presently, the use of the grand jury as a tool to inquire into organized crime, public corruption or the commission of specific crimes by specific persons is contained in the Investigative Grand Jury Act (hereinafter the Act).

The Act permits the impanelling of a grand jury on the initiative of ■ an attorney for the Commonwealth (as was the case here), and the assignment of a judge of the county in which the jury was raised to supervise the investigating grand jury. 42 Pa.C.S.A. § 4543(b). The grand jury has the power to compel attendance of witnesses to give testimony under oath, to initiate contempt proceedings and require the production of documents, records and other evidence. Id. at § 4542. Further, the grand jury is to be composed of twenty-three members and a majority of the full jury shall be required to adopt a report or issue a presentment. As to the issuance of a presentment, the Act provides:

(a) General rule.—Should the investigating grand jury determine that upon the basis of evidence presented to it a presentment should be returned against an individual, the grand jury shall direct the attorney for the Commonwealth to prepare a presentment which shall be submitted to the investigating grand jury for a vote. Should the majority of the full grand jury vote approval for the presentment it shall then be submitted to the supervising judge. The supervising judge shall examine the presentment, and if it is ■within the authority of the investigating grand jury and is otherwise in accordance with the provisions of this subchapter, the supervising judge shall issue an order accepting the presentment. Otherwise, the supervising judge shall refuse to accept the presentment and shall order that the investigating grand jury take further appropriate action.
(e) Procedure following presentment.—When the attorney for the Commonwealth proceeds on the basis of a presentment, a complaint shall be filed and the defendant shall be entitled to a preliminary hearing as in other criminal proceedings.

Act of October 5, 1980, P.L. 693, No. 142, § 216(a)(2), 42 Pa.C.S.A. § 4551(a), (e).

As is evident under the Act, “an investigating grand jury is an arm of the court, [and] in this Commonwealth is judicially supervised from its inception contrary to the practice in most jurisdictions, and is strictly regulated in the scope of its inquiry.” Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, 775 (1971). The reason for such supervision is a concern for urgency in resolving the commission of criminal activity or avoidance of delays incident to the ordinary forms of the law. Id.

Nonetheless, this does not detract from the fact that “the presentment of an investigating grand jury does not formally charge a named person with the commission of a specific criminal act; it is a written formal recommendation by an investigating grand jury that specific persons be charged with specific crimes.” P.L.E. Indictment and Information, § 23 at 203 (Footnote omitted; emphasis added). The ultimate determination of whom to charge and what to charge, however, is reserved specifically to the Commonwealth (via the District Attorney): .

A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial, branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion. Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 1530-31, 84 L.Ed.2d 547 (1985); United States v. Schwartz, 787 F.2d 257, 266-67 (7th Cir.1986). This principle is most often invoked when the issue is whom to prosecute, as in Wayte v. United States, supra, Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), and United States Labor Party v. Oremus, 619 F.2d 683, 690-91 (7th Cir.1980), but it has equal force when the issue is which crimes of a given criminal to prosecute. Bordenkircher v. Hayes, 434 U.S. 357, 374, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); United States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74 (1982); United States v. Smith, 953 F.2d 1060, 1064 (7th Cir.1992).

United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992). Stated otherwise:

The question whether to proceed with a prosecution is for the Executive Branch and the grand jury alone. Selection of the charge is a central part of the executive function.

United States v. Schwartz, 787 F.2d 257, 266 (7th Cir.1986). Accord United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986); United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983); United States v. Cyprian, 756 F.Supp. 388, 391 (N.D.Ind.1991); Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458, 465 (1992); Commonwealth v. Amundsen, 416 Pa.Super. 464, 611 A.2d 309, 311 (1992); Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681, 684 (1991); Commonwealth v. Mallon, 356 Pa.Super. 493, 515 A.2d 1, 4 (1986); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591, 592 (1980).

The discretion of whom to prosecute and what offense(s) to charge is rooted in the separation of governmental powers doctrine, see United States v. DeBright, 730 F.2d 1255, 1257 (9th Cir.1984); United States v. Miller, supra, and is a broad authority to be judged under a more than simple abuse-of-discretion standard. See Pennsylvania Social Services Local 668, supra (judicial review limited to a manifest and flagrant abuse of discretion); In re Wood, 333 Pa.Super. 597, 482 A.2d 1033, 1036 (1984) (“... a court should not interfere with the exercise of prosecutorial discretion under Rule 133 [Approval of Private Complaints] unless there has been a gross abuse of discretion.” (Citation omitted)).

Further, and more importantly, it is beyond cavil that:

“[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978).

Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985); United States v. Ucciferri, 960 F.2d 953, 954 (11th Cir.1992); cf. Commonwealth v. Eisemann, supra, 276 Pa.Super. at 545, 419 A.2d at 592 (“This discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence or nonexistence of probable cause.”); United States v. Miller, supra, 722 F.2d at 565 n. 3 (“... prosecutors can bring charges so long as the charge is supported by probable cause____” (Citation omitted)); United States v. Cyprian, supra (semble).

Instantly, we had compliance with the Act, i.e., impanelling of investigating grand jury on petition of the District Attorney, the taking of testimony, the preparation of a presentment, approval for the same obtained from the supervising judge and preparation of a criminal complaint in compliance therewith. It was only with the amendment of the criminal complaint, which occurred following the Commonwealth’s case in chief but before the close of the preliminary hearing, that we have a challenge to the propriety of the Commonwealth’s modification of the probable cause document from one charging murder in the first and third degree to that of murder in the first and third degree as an accomplice. These amended charges, as well as the initial criminal conspiracy offense, were held for court by the district justice and were followed by the issuance of an information by the District Attorney formally charging the appellant accordingly.

Interestingly, unlike the appellant, we find a resolution of the case to revolve around whether and to what extent a criminal complaint may be amended by the Commonwealth, and not whether an information may be amended, since at the stage the amendment was effectuated came about prior to the conversion of the complaint into a criminal information by the District Attorney.

Under Pa.R.Crim.P. 150 and the Comment thereto, we learn that:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.
jJj
Comment
The 1981 amendment is intended to clarify when a defendant should be discharged or a case dismissed because of a defect; it eliminates disputes as to what is an informal defect or a substantive defect. Under the amendment, as a condition of relief regardless of whether the defect is in form, content, or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant.
A complaint, summons or warrant may be amended at any time so as to remedy any defect inform or content that is not prejudicial to the rights of the defendant. Nothing in this rule shall prevent the filing of a new complaint and the reissuance of process. Any new complaint must be filed within the time permitted by the applicable statute of limitations. [Emphasis added]

Contrast Pa.R.Crim.P. 229 (amendment of information permitted “provided the information as amended does not charge an additional or different offense.”); P.L.E. Indictment and Information, § 7.

Under the predecessor to the present Rule 150, the omission of an offense from a complaint constituted a “substantial defect” which could not be remedied by merely amending the complaint. Commonwealth ex rel. Fitzpatrick v. Mirachi, 481 Pa. 385, 392 A.2d 1346, 1348 (1978). The result would be a discharge of the defendant, with the option of filing a new complaint and the issuance of process in which the defect was corrected. The present Rule 150 has eliminated the necessity to determine what is an “informal” versus a “substantive” defect (be it in form, content or procedure) and allows for a discharge of the defendant or a dismissal of some or all of the case only if it is shown to the court or issuing authority that “there is actual prejudice to the rights of the defendant.”

As our Supreme Court stated in Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), Rule 150 does not adopt the application of per se remedies for technical violations. The Rule demands a showing of prejudice by the defendant before a dismissal (or, as in this case, a quashal by the court) of, e.g., murder of the first and third degree as an accomplice can take place as did below. For such to occur, however, “such prejudice must be beyond the inherent prejudice of being subject to a criminal prosecution.” Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1, 6 (1992).

This element of “prejudice” may be ascertained with inquiry into the purpose behind the prohibition against “substantive changes”, i.e., “to ‘assure that the defendant receives proper notice of the charges filed against him and to allow him time to properly prepare his case.’ ” Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344, 1349 (1980) (Citations omitted).

“The substance of a case is a fair trial on the merits in the proper court; all else is form, whose function is but to serve the end of a fair trial on the merits. In this endeavor, the office of the pleading[, e.g., citation, complaint or information] is simply to inform the accused of ‘the nature and cause of the accusation’ against him, as constitutionally required as a matter of due process of law. It is only when the pleading fails to advise the defendant in advance of trial of the issues he must meet and harms or handicaps kirn in his effort to defend himself, that the content of pleadings impinges on substance. All other pleading errors and omissions are ‘informal’ and may be amended or disregarded.”

Commonwealth v. Lyons, 10 D. & C.3d 103, 106 (Somerset Cty., 1978) (Emphasis added). Further, in resolving the matter at hand, we are guided by this Court’s remarks in Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990), which assessed the defendant’s challenge to the court’s allowance of an amendment to a criminal information; to-wit:

While we agree with appellant that aggravated assault is not a lesser included offense of criminal attempt of murder, we are convinced the lower court correctly permitted the information to be amended. In reviewing the validity of an amendment to a criminal information, we look more to substantial justice than to technicalities. Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985). Instantly, the trial court allowed amendment of the information to include the charge of aggravated assault prior to trial. Although this was a case of an eleventh hour amendment, the Court offered appellant the opportunity to request a continuance to prepare to meet the new charge.... The charge of aggravated assault and criminal attempt murder arose out of the same set of facts. And, under the particular facts of this case, the crimes charged involved the same basic elements. Thus, appellant was placed on notice of his criminal conduct and was not prejudiced by the amendment. Even though the present amendment was substantive in that it changed the grade of the offense charged, Commonwealth v. Gray, 329 Pa.Super. 347, 353-54, 478 A.2d 822, 825 (1984), we will permit the amendment.

396 Pa.Super. 605 at 616 nn. 6 & 7, 579 A.2d at 885 nn. 6 & 7 (Footnotes omitted).

As in Fuller, the amendment (to the complaint here, which was reflected in the criminal information later) occurred prior to trial and the additional (accomplice) charges arose out of the same set of facts as the charges in the original complaint. For instance, the original complaint charged the appellee with murder in the first and third degree and criminal conspiracy. The facts underlying the “affidavit of probable cause” section of the complaint referred to the grand jury’s presentment as establishing probable cause to arrest the appellee for the charges listed. These same set of facts were the predicate for the requested amendment seeking to charge the appellee as an accomplice to murder in the first and third degree.

Therefore, we find that the crimes charged in the amended complaint evolved out of the same factual situation as the one specified in the original complaint, and, albeit the change was substantive, it took place at a point in the criminal justice continuum to afford the appellee notice of his criminal conduct and time to prepare his case for trial. Id. As such, we discern no prejudice to the appellee in allowing the amendment to the criminal complaint. Cf. Commonwealth v. Fuller, supra.

Additionally, recall the broad discretion vested solely in the District Attorney as to whom to prosecute and what charge(s) to level are conditional upon the presence of probable cause to believe that the accused committed an offense defined by statute. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); United States v. Ucciferri, supra. With that as a backdrop, and from our examination of the grand jury’s presentment (as the underpinnings for the original and amended complaints), there would appear to be sufficient information to conclude that a crime has been committed and that there is probable cause to believe that it was committed by the accused and his cohorts. Cf. Commonswealth v. Bardascino, 210 Pa.Super. 202, 232 A.2d 236, 240 (1967) (arrest warrant context); Commonwealth v. Ametrane, 205 Pa.Super. 567, 210 A.2d 902, 904 (1965) (semble); P.L.E. Criminal Law, § 171. It will be for a finder-of-fact to make the ultimate determination of innocence or guilt. Cf Commonwealth v. Woodward, 418 Pa.Super. 218, 614 A.2d 239, 242 (1992) (where conflicting evidence exists, the trier-of-fact is free to believe all, part, or none of the evidence presented).

At bar, there has been no allegation by appellee that the criminal information did not sufficiently allege a violation of the Crimes Code, nor have we been directed to any authority to support the quashal of the criminal information as to the accomplice charge tied to murder in the first and third degree. To the contrary, Commonwealth v. Fuller, supra, could be read to approve the amendment by extending its rationale to the investigative grand jury arena provided it occurs prior to trial, as was the case here, and provides notice of the new/amended charges against the accused. Extending Fuller to its logical perimeters, we find it persuasive in sustaining the District Attorney’s efforts to issue a criminal information not in total accord with the grand jury presentment.

To elaborate, the presentment of an investigative grand jury is a written formal recommendation, see 42 Pa. C.S.A. § 4542, with the power to indict being withheld specifically from that same body, id. at § 4548(c), and reserved to the prosecutor. See Wayte v. United, States, supra, 470 U.S. at 608, 105 S.Ct. at 1531; United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982); Commonwealth v. Spells, supra; Commonwealth v. Amundsen, supra. Accordingly, we hold that, reading the Act to give effect to all of its provisions without doing violence to the traditional prosecutorial role of the District Attorney in the criminal justice system, the District Attorney is the final arbiter of the content of the indicting document. Appellate review will be available to assess whether the discretion of the prosecutor has been abused in performing his executive function to issue indicting documents. See Pennsylvania Social Services Local 688, supra.

We find no such abuse here, and, thus, to remedy the lower court’s refusal to allow the issuance of a criminal information not on all fours with the investigating grand jury’s presentment, we reverse the order of the court so directing and remand for the allowance of the criminal information intended to be issued by the District Attorney of Lackawanna County.

Order reversed, case remanded for proceedings consistent with this opinion, and jurisdiction is relinquished.

WIEAND, J., concurs in the Result.

      . Grand juries issue both indictments and presentments. With indictments, the grand jury sets forth felony charges asserted by the government after finding probable cause that a person under investigation has committed the alleged crime. With presentments, the grand jury recommends for prosecution charges it has initiated, or it issues reports condemning official misconduct not rising to the level of a criminal offense. See Fields v. Soloff, 920 F.2d 1114, 1117 n. 1 (2nd Cir.1990).
      Of interest is the fact that presentments, while provided for in the Fifth Amendment to the United States Constitution, are now considered obsolete in the federal system, and they are no longer included by statute as a charging document. See In re Grand Jury Proceedings, 813 F.Supp. 1451, 1462 (D.Co.1992) (Citations omitted).

      . Act of October 5, 1980, P.L. 693, No. 142, § 216(a)(2), 42 Pa.C.S.A. § 4541 et seq.

      . Prior to the 1982 amendment, Rule 150 provided:
      Defects in Complaint, Citation, Summons or Warrant
      (a) Informal Defects:
      No person arrested under a warrant or appearing in response to a summons or citation shall be discharged from custody nor shall any case be dismissed because of any informal defects in the complaint, citation, summons, or warrant, but the complaint, citation, summons or warrant, may be amended at any time so as to remedy any such, informality.
      (b) Substantive Defects:
      If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.

      . ... [W]e reiterate that generally aggravated assault is not a lesser included offense of criminal attempt (murder). However, we are not applying the merger test herein. Rather, our purpose is to determine, under the particular facts of this case, whether appellant was placed on notice of his criminal conduct and whether appellant was prejudiced by the last minute addition. Commonwealth v. Stanley, supra [265 Pa.Super. 194, 401 A.2d 1166 (1979)].

      . Substantive amendments have been allowed in the past. See Commonwealth v. Jones, 319 Pa.Super. 570, 466 A.2d 691 (1983) (change in grade of criminal mischief permissible; amendment made prior to trial); Commonwealth v, Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982) (adding criminal charges to information on day of trial permissible where no showing of prejudice, no request for continuance) ....

      . We have reviewed the applicable sections of the Crimes Code and note that the first and third degree murder charges and the first and third degree murder accomplice offenses constitute felonies of the first degree. See 18 Pa.C.S.A. §§ 2502, 306(c)(l)(ii); see also Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990). And, although establishing a defendant's guilt on an accomplice theory does not require proof of an agreement as conspiracy does, see Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467, 470 (1983), each offense requires proof of "shared criminal intent” to establish one’s guilt. See Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976). The point to be made is that the original complaint and amended complaint shared sufficient components, e.g., factual origin, that the appellee cannot argue successfully that he is prejudiced by the allowance of the amendment, coming as it did prior to trial so as not to impair his ability to defend against the charges.

      . We make mention of the credibility question because the' appellee recites in his appellate brief at 24-28 that Ronald Hull lied at the preliminary hearing. This would be for the trier-of-fact to assess.

      . As an aside, it needs to be mentioned that, from our examination of the record, there is no indication that the district justice’s allowance of an amendment to the criminal complaint was objected to by the appellee. This is contrary to Pa.R.Crim.P. 150, which provides in the Comment section that such matters “shall be specifically described on the docket by the issuing authority.” See Commonwealth v. Lockett, 31 D. & C.3d 115 (Somerset Cty., 1984). The absence of the appellee’s objection to the amendment not being noted on the docket does not alter our ultimate disposition.


author: CIRILLO, Judge.

text:
    639 A.2d 491
    Robert C. ORNER, Appellant, v. Rog MALLICK and Theodora Mallick h/w, and the Media Regency Corporation, t/a the Regency Motel and Ann Esslinger and Elizabeth Bonsall.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1994.
    Filed March 29, 1994.

      Avram G. Adler, Philadelphia, for appellant.
    Gary K. Feldbaum, Philadelphia, for Esslinger, appellee.
    Frances M. Piccolli, Media, for Bonsall, appellee.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   CIRILLO, Judge.

Plaintiff/appellant Robert C. Orner appeals from an order of the Court of Common Pleas of Delaware County denying his motion to remove a nonsuit. We affirm.

Robert Orner was nineteen years old when he graduated from high school in June of 1983. On June 12, 1983, Orner attended a high school graduation party hosted by defendants Edward and Ann Esslinger. Beer was served at the party. Orner remained at the party for two hours. Thereafter, Orner went to another graduation party hosted by defendant Elizabeth Bonsall. Beer was also served at the Bonsall party. Orner stayed there for approximately one and one-half hours. At approximately midnight, Orner and one of his friends left the Bonsall party and went to another party at the Regency Hotel on Baltimore Pike in Media, Pennsylvania. Orner and his friend arrived at the Regency Hotel at approximately 12:30 a.m. Beer was available at that party also.

Early in the morning hours of June 13, Orner ran down a dimly lit ramp at the Regency Hotel when he thought his ride was leaving. He fell over a railing and dropped one story to the parking lot. As a result of his fall, Orner was seriously injured. He suffered a fractured skull, fractured facial bones, brain damage, and a seizure disorder.

Orner filed an action against Rog and Theodora Mallick, owners and operators of the Regency Hotel, the Media Regency Corporation, Edward and Ann Esslinger, and Elizabeth Bonsall. The action against the Mallicks and the Media Regency Hotel was settled pursuant to a joint tortfeasor release. In the action against defendant Bonsall, Bonsall filed preliminary objections in the nature of a demurrer. The trial court, based upon the prevailing law that no social host liability existed in the Commonwealth, sustained Bonsall’s preliminary objections. The trial court relied upon this court’s decision in Congini v. Portersville Valve Company, 312 Pa.Super. 461, 458 A.2d 1384 (1984). Orner appealed to this court and, while his case was on appeal, the Congini decision was reversed by the Pennsylvania Supreme Court. Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983). Nonetheless, this court found that Orner failed to state a cause of action in negligence. Orner sought and was granted leave to appeal to the Pennsylvania Supreme Court. The Supreme Court, finding that this court had interpreted Congini incorrectly, reversed and remanded Orner’s case for trial. Orner’s case against Bonsall was reinstated, and the cases against Bonsall and the Esslingers were tried together before the Honorable William R. Toal, Jr.

At trial, Orner presented his case on liability. Bonsall and the Esslingers then filed motions for compulsory nonsuit. Judge Toal granted both motions, finding that Orner had failed to establish that the drinking of beer at the first two parties was the proximate cause of his fall over the railing. Orner’s motion to remove the nonsuit was denied.

On appeal, Orner questions the propriety of the court’s order granting nonsuit. Though conceding that the ramp at the Regency Hotel was dimly lit, and relying upon this contention in his claim against the Regency Hotel, Orner contends that the defendants’ actions in serving intoxicating beverages initiated “a train of drinking resulting in erratic behavior” and the fall over the railing.

An order granting nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action had been established. See Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112-13 (1977). However, it is well established that a jury cannot be permitted to reach its verdict on the basis of speculation or conjecture. Smith v. Bell Telephone Company, 397 Pa. 134, 153 A.2d 477 (1959).

The requisite elements of negligence are well established: They include:

a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; a failure to conform to the standard required; a causal connection between the conduct and the resulting injury; and the actual loss or damage resulting to the interest of another.

Morena v. South Hills Health System, 501 Pa. 634, 642 n. 5, 462 A.2d 680, 684 n. 5 (1983) (citations omitted).

The trial court found that Orner had failed to establish the element of causation. Viewing the evidence and inferences in favor of Orner, we agree with the trial court that Orner’s claims are attenuated and that a jury, without engaging in speculation or conjecture, could not have reasonably concluded that the element of causation had been established. Ford, supra; Smith, supra.

In Congini, the Pennsylvania Supreme Court held that adults owe a duty of care to their minor guests and it is a breach of that duty to serve alcohol to minor guests in contravention of the Crimes Code. See 18 Pa.C.S. §§ 306, 6310.1. The Court’s decision was founded upon the protection of “both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age.” Congini, 504 Pa. at 163, 470 A.2d at 518. The Court stated: “It is the person’s service which forms the basis of the cause of action, not whether or not a putative plaintiff is entitled to recover.” Id. at 163, 470 A.2d at 518. Further, the Court noted that the mere breach of a duty does not mandate a finding of liability, for the plaintiff still bears the burden of proving that the breach resulted in his injury. Id. at 163 n. 4, 470 A.2d at 518 n. 4.

Here, Orner testified that he was not intoxicated when he left the Esslingers’ party or when he left the Bonsall party, and that his fall was attributable to the poor lighting which limited his perception of the length of the ramp. The trial court did not admit the hospital’s blood-alcohol test because the plaintiff offered no independent testimony relating that test back to the Esslinger or Bonsall party.

We find that the trial court’s determination that Orner failed to establish the necessary element of causation was proper. The defendants, as the adult hosts of the graduation parties, had a duty to their minor guests, a duty acknowledged by our Supreme Court in Congini and, later, by legislative enactment. 18 Pa.C.S. § 6310.1. Notwithstanding the fact that the defendants were negligent per se and breached their duty to Orner when they furnished him with alcohol, this did not relieve Orner of his burden of establishing at trial that the defendants’ breach was the legal cause of his injuries. Congini, 504 Pa. at 161, 470 A.2d at 517 (citing Restatement (Second) of Torts, § 286); see also Orner v. Mallick, et al., 515 Pa. 132, 137, 527 A.2d 521, 524 (1987); see also Kaplan v. Kaplan, 404 Pa. 147, 171 A.2d 166 (1961). Orner has established no nexus between the defendants’ breach and his injuries; in fact, Orner’s testimony establishes quite the contrary—that the cause of his fall was his rush to catch up with his friend, inadequate lighting along the ramp, and inadequate and unsafe railings along the ramp. Viewing the evidence and all reasonable inferences in the light most favorable to Orner, we conclude that the trial court properly determined that a jury could not reasonably conclude that causation had been established. Ford, supra. We, therefore, affirm the trial court’s order granting nonsuit.

Order affirmed.

      . This court had narrowly interpreted Congini, finding that Omer’s complaint failed to aver that the social host had served alcohol to a minor "to the point of intoxication;” the Supreme Court found that this was a misapprehension of its decision. Orner v. Mallick, 515 Pa. 132, 136, 527 A.2d 521, 523 (1987). The Court emphasized that "the breach occurs with the service of any alcohol to a minor, not just an amount sufficient to intoxicate the minor. Id. at 137, 527 A.2d at 524.

      . In this court’s en banc decision in Herr v. Booten, 398 Pa.Super. 166, 580 A.2d 1115 (1990), it was noted that the Supreme Court’s decision in Congini stands in sharp contrast to its decision in Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983), rendered the same day as Congini. In Klein, the Supreme Court affirmed the entry of summary judgment in favor of the defendants after determining that the plaintiff was twenty-one years of age, and thus an adult, at the time the defendants furnished alcohol to him. The Klein court held that "there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.” Id. at 148, 470 A.2d at 511.

      . Section 6310.1 prohibits the furnishing of liquor or malt or brewed beverages to minors. Section 6310.1 provides:
      (a) Offense defined.—Except as provided in subsection (b), a person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.
      Subsection (b) provides an exception for religious service or ceremony. 18 Pa.C.S. § 6310.1 (Supp.1993).

      . 1988, March 25, P.L. 262, No. 31, § 11, effective in 60 days.


author: CIRILLO, Judge:

text:
    639 A.2d 798
    In the Interest of K.B. Appeal of K.B.
    Superior Court of Pennsylvania.
    Submitted May 24, 1993.
    Filed Feb. 16, 1994.
    Reargument Denied April 25, 1994.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., participating party.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

K.B., a sixteen year-old juvenile, appeals from an order of the Court of Common Pleas of Philadelphia County adjudicating him delinquent and placing him on temporary intensive drug and alcohol probation, pending a further review in 60 days. We quash the appeal as interlocutory.

On November 8, 1992, Officer Nathaniel Hartley received a radio call that a group of males were gambling and engaged in disorderly conduct on a highway in the vicinity of 2200 West Indiana Avenue in Philadelphia. Upon arriving at the scene, Officer Hartley observed K.B. and four other males shooting dice for money. Officer Hartley ordered the group to disperse and the young men complied.

Approximately thirty minutes later, Officer Hartley returned to the scene and observed that the young men had resumed their gambling activities. At this point, Officer Hartley testified that he “was going to arrest the defendant [K.B.] and one other male for disorderly conduct.” Instead of making the arrests, however, Officer Hartley conducted “pat down” searches to ensure that none of the youths were armed. Upon patting down K.B.’s pants, Officer Hartley felt an unknown blunt instrument. Fearing that it could be a weapon, he reached into K.B.’s pocket and withdrew a comb and ten vials of crack cocaine. Officer Hartley placed K.B. under arrest for knowing and intentional possession of a controlled substance. Officer Hartley did not arrest K.B. for failure to disperse or for disorderly conduct.

K.B. filed a motion to suppress the vials of crack cocaine found on his person. The suppression court denied this motion. The case proceeded to a delinquency hearing before the Honorable Sheldin C. Jelin. After reviewing testimony from Officer Hartley, testimony from K.B.’s guardian Alma Irby, and testimony regarding KB.’s scholastic record, Judge Jelin adjudged K.B. delinquent and placed him on temporary intensive drug and alcohol probation, pending a final review in 60 days. Significantly, Judge Jelin did not impose a final disposition. He opted instead for a temporary one, in order to more properly determine the course of treatment and rehabilitation for the young offender. This appeal followed.

On appeal, K.B. claims that Judge Jelin erred in denying his motion to suppress the seized crack cocaine. Specifically, K.B. alleges that Officer Hartley’s search was neither a proper Terry stop, nor a valid search incident to a lawful arrest. For the reasons that follow, we quash this appeal as interlocutory.

As a general rule, this court will only permit appeals from final orders, unless we are otherwise empowered by statute or rule of court. Grove North America v. Arrow Lift, 421 Pa.Super. 12, 17, 617 A.2d 369, 371 (1992); see Pa.R.A.P. 341. “In ascertaining what is a final appealable order, this court must look beyond the technical effect of the adjudication to its practical ramifications.” Id. at 17, 617 A.2d at 372. A “final order” is one which either terminates the litigation or otherwise disposes of the entire case. Commonwealth v. VanBuskirk, 303 Pa.Super. 148, 149, 449 A.2d 621, 622 (1982). Thus, an order is considered interlocutory and not final, if it does not effectively put the litigant out of court. Id.

Furthermore, in juvenile proceedings we have consistently held that an order is interlocutory until a final disposition has been made and the proper form of treatment, rehabilitation, and supervision has been determined. Id. at 150, 449 A.2d at 624; See Commonwealth v. Kiker, 289 Pa.Super. 188, 432 A.2d 1115 (1981) (finding that an order transferring a minor, who was adjudged delinquent, to a different county for further disposition was not final, and, thus, not appealable); In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979) (holding that an appeal after a finding of dependency, but before a final disposition, was interlocutory and unappealable).

In the case at hand, Judge Jelin’s issuance of intensive drug and alcohol probation with a further hearing in 60 days is not a final, appealable order. It does not terminate the litigation and put K.B. out of court; on the contrary, it simply delays the final disposition so that Judge Jelin can more properly determine whether K.B. has returned to school, stopped his illicit gambling activities, and refrained from taking drugs. Accordingly, we quash K.B.’s appeal as interlocutory.

Despite our ruling, however, we think it important to pause and address the disturbing implications inherent within K.B.’s appeal to this court. Today, K.B. asks this court to reverse Judge Jelin’s finding of delinquency, solely because K.B. claims that the search and subsequent seizure of crack cocaine found on his person was in violation of the Fourth Amendment. In essence, therefore, K.B. seeks refuge from being adjudged delinquent behind the shield of the Constitution of the United States.

Such an argument, unfortunately, does not present a novel proposition. All too often we are asked to provide juveniles with the full range of rights granted to the adult criminal defendant, while simultaneously retaining their status as juvenile offenders. We think this approach rather schizophrenic and in need of fundamental reevaluation.

Born at the end of the 19th century, the juvenile justice system was created with the lofty goal of saving, not punishing, of rehabilitating, not incarcerating, and of protecting, not penalizing our wayward children. Its birth sprang from the efforts of social reformers, who were concerned with the deleterious effects of sentencing juveniles to lengthy terms in adult prisons. The juvenile courts “aimed to check juvenile delinquency and to throw around a child, just starting, perhaps, on an evil course and deprived of parental care, the strong arm of the State acting as parens patriae.” In re Holmes, 379 Pa. 599, 603, 109 A.2d 523, 525 (1954).

To effectuate these laudable goals, juvenile hearings became non-adversarial, informal proceedings, where the strict rules of evidence and procedure were relaxed and in which the judge could analyze the child’s needs and fashion the best possible remedy. Because the hearings did not result in criminal convictions and inured to the benefit of the juvenile, the child did not receive the full panoply of constitutional and procedural rights of his adult counterpart. While adults enjoyed the full protection of due process of law, they also faced the grave consequence of criminal conviction and incarceration.

After three quarters of a century of continued application of these principles, the United States Supreme Court set into motion a process of reassessment and reevaluation of the juvenile system. This process, destined to continue into the present, would consist of a struggle to find a happy medium between a juvenile system capable of realizing the goals of rehabilitation and protection, and a juvenile system that would respect and not abrogate the juvenile’s fundamental constitutional right of due process.

The genesis of this struggle began with Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In Kent, the petitioner, a 16 year-old male, was apprehended and charged with the commission of a rape. Some time later, a juvenile court judge, without holding a hearing, obtaining records, or reciting reasons for his decision, waived jurisdiction and transferred the case to the United States District Court for the District of Columbia. Id. 383 U.S. at 546, 86 S.Ct. at 1049. Following a jury trial, the petitioner was found guilty and sentenced to 30 to 90 years imprisonment.

On appeal, the petitioner argued, inter alia, that the procedures governing the waiver of jurisdiction of juvenile matters were unsound and inappropriate, claiming that juveniles were entitled to the same constitutional guarantees as similarly situated adults. Id. at 556, 86 S.Ct. at 1054. Justice Fortas began his majority opinion for the Court by describing the traditional role and function of the juvenile justice system. He wrote:

The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt, and punishment. The State is parens patriae rather than prosecuting attorney and judge.

Id. at 554-55, 86 S.Ct. at 1054. The Court continued, however, to voice serious concerns as to the actual performance of the juvenile courts. For the first time, the Supreme Court called into question the efficacy of the system and openly expressed concerns “that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Id. at 556, 86 S.Ct. at 1054. Despite these new found concerns, the Court in the end deftly avoided the broader constitutional implications of the case, holding instead that the juvenile court failed to follow proper statutory procedure and remanded the case for a waiver hearing before the juvenile court.

The Court’s reluctance to consider the due process concerns of juveniles, however, would come to an abrupt end with its decision in the landmark case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In Gault, a fifteen year-old boy was adjudged delinquent for making lewd telephone calls and was committed to an industrial school for approximately five years until he reached the age of majority. Id. at 7-8, 87 S.Ct. at 1433. The corresponding penalty for an adult offender, however, was a fine ranging from five to fifty dollars or a maximum term of two months’ imprisonment.

On appeal, the Supreme Court was asked to consider whether juvenile offenders enjoyed the same rights of due process of law as adult offenders. The Court began its analysis by reviewing the history of the juvenile justice system. During this discussion, the Court set forth the traditional justifications for relaxing constitutional protections for children; namely, that juvenile hearings were neither adversarial, nor criminal, that the child was to be treated and rehabilitated, not incarcerated and punished, and that, because the State was acting in its role as parens patriae, the juvenile has a right “not to liberty but to custody.” Id. at 14-17, 87 S.Ct. at 1436-38.

The Court continued, however, to announce that despite the noble and benign purposes behind the juvenile system, the reality of the system decried the need for enhanced procedural safeguards. The Court found that instead of providing for flexible proceedings in which a juvenile court judge could fashion “careful, compassionate, individualized treatment,” the lack of procedural safeguards was producing arbitrary and capricious rulings. Id. 387 U.S. at 18, 87 S.Ct. at 1439.

Specifically, the Court found that the reality of juvenile confinement and treatment facilities echoed that of their adult counterparts. It matters not, the Court reasoned, however euphemistically one titles juvenile rehabilitation centers, the child’s world “becomes a building with whitewashed walls, regimented routine, and institutional hours. Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and delinquents confined with him for anything from waywardness to rape and homicide.” Id. at 27, 87 S.Ct. at 1443 (citations omitted). Thus, it would be extraordinary, the Court concluded, if given the realities of the juvenile process, the “Constitution did not require the procedural regularity and exercise of care implied in the phrase ‘due process.’ ” Id. at 27-28, 87 S.Ct. at 1444.

Consequently, the Court stated that although juvenile proceedings need not measure up to all the requirements of a criminal trial, they must at the least “measure up to the essentials of due process and fair treatment.” Id. at 30, 87 S.Ct. at 1445. The Court announced, therefore, that juveniles are entitled to 'written notice of the charges against them, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.

The Court’s decision in Gault would forever change the way in which the procedural process of the juvenile justice system would be evaluated. Instead of following the traditional course of simply endorsing the flexible and informal framework of juvenile hearings, the Supreme Court in subsequent cases would balance the specific procedural right in question against its impact on the delinquency process. In so doing, the Supreme Court would use the degree of impairment to the juvenile system as a yardstick in determining whether to advance such rights to juveniles. In this manner, the Court would fundamentally reshape the procedural aspects of the juvenile justice system.

The first such instance was In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Winship, the Supreme Court was asked to consider whether, under Gault, “proof beyond a reasonable doubt is among the ‘essentials of due process and fair treatment’ ... when a juvenile is charged with an act which would constitute a crime if committed by an adult.” Id. at 359, 90 S.Ct. at 1070. ' The traditional standard of proof in juvenile hearings had been the lesser “preponderance of the evidence” standard.

Before reaching a decision, the Court first examined the effect such a standard of proof would have upon the “beneficial aspects of the juvenile process.” Id. at 366, 90 S.Ct. at 1073. In determining that the “reasonable doubt” standard should be extended to juveniles, the Court stated:

Use of the reasonable-doubt standard ... will not disturb New York’s policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearings at which the fact finding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child’s social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing.

Id. at 366-67, 90 S.Ct. at 1074.

Subsequently, in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Supreme Court considered whether juveniles were constitutionally entitled to a trial by jury. Instead of “taking the easy way out with a flat holding that all rights constitutionally assured for the adult are to be imposed upon the state juvenile proceeding,” id. at 545, 91 S.Ct. at 1986, the Court once again balanced the unique characteristics of the juvenile justice system with the juvenile’s interest in a trial by jury. In declining to extend the right of a trial by jury to juvenile proceedings, the Court reasoned that the benefits of procedural orderliness were far outweighed by the existing system of intimate, informal, protective proceedings. Id.

Next, in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court reviewed whether the Double Jeopardy Clause of the Fifth Amendment applied in the context of juvenile proceedings. Specifically, the Court considered whether a 17 year-old, after being adjudged delinquent but unfit for treatment as a juvenile, could subsequently be prosecuted as an adult for the same offenses which justified the initial finding of delinquency. In determining that juveniles are entitled to the protection against being placed in “double jeopardy,” the Supreme Court was ever cognizant of the potential negative effects its decision would have upon the juvenile system. The Court concluded, however, that it did not believe that extending to juveniles “the constitutional protection against multiple trials [would] diminish flexibility and informality to the extent that those qualities relate uniquely to the goals of the juvenile system.” Id. at 535, 95 S.Ct. at 1789.

Finally, in Schall v. Martin, 467 U.S. 253,104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), the Supreme Court considered whether pre-trial detentions of juveniles offended the Due Process Clause of the Fourteenth Amendment. The Supreme Court initially stated that the “Constitution does not mandate elimination of all differences in the treatment of juveniles.” Id. at 263, 104 S.Ct. at 2409. The Court then indicated that, based on the State’s parens patriae interest in preserving the welfare of its children, it must attempt to strike a balance between the flexibility and informality of the juvenile system and “yet ensure that such proceedings comport with the fundamental fairness demanded by the Due Process Clause.” Id. Thus, the Court had to decide whether, within the context of the juvenile system, “the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is sufficient” to outweigh the juvenile’s substantial interest in freedom from institutional constraints. Id. at 264-65, 104 S.Ct. at 2409-10. In concluding that the balance weighed in favor of the state’s interest, the court held that:

[T]he juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the State’s parens patriae interest in preserving and promoting the welfare of the child.... Society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity—both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child.

Id. at 265-66, 104 S.Ct. at 2410-11 (citations omitted).

Placed within this historical context, it is not surprising that in recodifying the juvenile act of this Commonwealth, 42 Pa.C.S.A. §§ 6301 et seq (1976) (amended 1978) (hereinafter “Juvenile Act”), our legislature struggled to maintain a careful balance between a juvenile system that would promote the traditional goals of rehabilitation and protection, while simultaneously respecting the due process boundaries set by the Supreme Court.

The Juvenile Act creates a comprehensive framework in which the juvenile courts can operate fairly, yet with a degree of flexibility and informality. Among its express purposes is “to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care, and rehabilitation.” 42 Pa. C.S.A. § 6301(b)(2).

Under the Juvenile Act, delinquency proceedings commence after a child has been “taken into custody” by law enforcement officers. 42 Pa.C.S.A. § 6324. The proceedings are comprised of two distinct phases: the adjudicatory and the dispositional. The adjudicatory phase begins with the submission of a “petition” submitted on behalf of the Commonwealth. 42 Pa.C.S.A. § 6334. This petition must set forth facts which establish why the juvenile is before the court and include a statement “that it is in the best interest of the child and the public that the proceeding be brought and ... that the child is in need of treatment, supervision, or rehabilitation.” Id.

The case then proceeds to an adjudicatory hearing before a juvenile court judge. The hearing is conducted without a jury in an informal, yet orderly manner. 42 Pa.C.S.A. § 6336(a). The hearing’s purpose is to determine whether the child is delinquent; that is, whether sufficient evidence has been adduced which shows that the child committed the delinquent acts. 42 Pa.C.S.A. § 6341(a). If, after reviewing the "evidence presented by the petition and at the hearing, the juvenile court finds beyond a reasonable doubt that the child committed the delinquent act(s), it shall adjudge the juvenile, delinquent. 42 Pa.C.S.A. § 6341(b).

Once the juvenile is adjudged delinquent, the case advances to the dispositional phase of the proceedings. The purpose of the dispositional hearing is to determine whether the child is in “need of treatment, supervision, or rehabilitation____” Id. To this end, the juvenile court is empowered to review “all evidence helpful in determining the questions presented” including oral and written “social reports.” 42 Pa.C.S.A. § 6341(d). After reviewing this evidence, the juvenile court may impose a dispositional order calculated to provide the juvenile with a form of care and treatment for' his individualized problems. 42 Pa.C.S.A. § 6351(a). Such dispositions include, inter alia: 1) placing the child on an appropriate form of probation; 2) committing the child to an institution, youth development center or other facility for delinquent children; 3) ordering the child to pay reasonable fines, costs, or restitution; and 4) ordering the child to participate in a program of service or education, which is acceptable to the victim of his/her offenses. 42 Pa.C.S.A. § 6352.

Despite the informality of the proceedings and the flexibility afforded to the juvenile courts in fashioning treatment for the young offenders, the legislature of this Commonwealth built into the Juvenile Act, procedures which comported with the requirements of due process, as set forth by the United States Supreme Court. Roughly following the standards announced in Gault and its progeny, the Juvenile Act provides children with: the right to counsel; the right to cross-examine and confront adverse witnesses; freedom from self-incrimination; and the “beyond a reasonable doubt” burden of proof.

Thus, the legislature, in enacting the Juvenile Act, appeared to have successfully balanced the competing interests of the Commonwealth’s in rehabilitating and protecting its wayward youths, and the juvenile’s in receiving the protection of due process of laws. By its very terms, upon a finding of delinquency, the juvenile is not “branded” with the stigma of a criminal conviction, but is simply “adjudged delinquent.” The juvenile is not sentenced to lengthy terms in adult prisons, but is provided with forms of treatment and rehabilitation. Furthermore, throughout the entire judicial process, the juvenile faces not a court empowered with a limitless degree of discretion and authority to act as it sees fit, but is accorded a process which respects both the juvenile’s right to fair treatment and due process of laws.

As is often the ease, however, appearances can be very deceiving. In bestowing to the juveniles of this Commonwealth most of the procedural safeguards given to adult offenders, the legislature had unwittingly placed its imprimatur on a whole range of constitutional and evidentiary attacks to delinquency adjudications. With an ever increasing frequency, juveniles seize upon the polestar of Gault and its progeny and use it as a springboard to obtain more and more “adult” rights and privileges.

Over the last twenty years, courts of this Commonwealth have been deluged with a steady downpour of such cases. In each, the juvenile offender comes to the adjudicatory hearing armed with a varied assortment of adult rights and privileges, ranging from the Fourth Amendment protection against unreasonable searches and seizures to the basic rules of evidence in criminal trials, and expects the court to dutifully apply such standards on his or her behalf. If such standards do not prove exonerative, then the young miscreant fully expects to receive the full range of benefits of the juvenile system.

The judicial response to such efforts has been untenable. Instead of refusing to extend the full panoply of adult rights to juveniles and, thus, empowering the juvenile system to care for and protect our troubled youths, we have blindly acceded to the juvenile’s requests. Accordingly, we have held that juveniles are entitled to: 1) the Fourth Amendment’s protection against unreasonable searches and seizures by governmental officials; 2) the adult “totality of the circumstances” standard in determining whether one knowingly and voluntarily waived the right to remain silent; 3) the effective assistance of counsel during all phases of the delinquency proceedings; 4) the full protection of the rules of evidence, including protection from being adjudged delinquent solely on the basis of hearsay testimony; and 5) the adult standard requiring probable cause before a warrantless arrest.

The juvenile’s request for and the judiciary’s extension of adult rights to juvenile proceedings, we submit, misses the point of the Juvenile Act. The Juvenile Act was not enacted to dole out punishments for the crimes of our wayward youths; to the contrary, it was enacted to determine the proper therapeutic course on which to launch the young offender. In extending adult rights to the juvenile offender, we vilify this profound and lofty goal and do the juvenile a double disservice—we do not provide the care and rehabilitation he so desperately needs, and we teach him to hire experienced counsel to search for legal technicalities to hide behind.

Perhaps the time has come for the legislature to do away with the Juvenile Act. If we continue to permit young offenders to flout its purpose, neither the juveniles nor society benefit from its benevolent offerings. Let us not forget that these juveniles are not simply skipping school or otherwise performing childish pranks, they are committing adult crimes and are injuring innocent victims. If these young miscreants want all the adult rights, perhaps we should give them all the adult punishments concomitant with them.

The case at hand is indicative of the crisis befalling the juvenile system. Even though the police caught young K.B. with ten vials of crack cocaine in his possession, instead of seeking and obtaining the benefit and protection of this Commonwealth’s drug and alcohol programs, K.B. sought refuge behind the technicalities implicit within the shield of the Fourth Amendment. Although the search and subsequent seizure of the illicit drugs may not have comported with the strictures of the Fourth Amendment, we should not be forced to countenance a result which denies K.B. the care and rehabilitation he so obviously requires.

The courts of this Commonwealth go too far by extending such safeguards as the Exclusionary Rule to juvenile proceedings. In these increasingly violent times, we must be ever cognizant that in being adjudged delinquent, juveniles such as K.B. are neither convicted of a crime, nor incarcerated in adult prisons. Now more than ever, we cannot afford to send a message to our misguided young people, that they may act with impunity, yet still receive the full range of adult constitutional protections. After all, we must never forget that in creating a separate juvenile system, the Commonwealth did not seek to “punish an offender but to salvage a boy who may be in danger of becoming one.... ” In re Holmes, 379 Pa. 599, 603, 109 A.2d 523, 525 (1954).

In 1967, when the United States Supreme Court set into motion the process which extended adult procedural rights to juvenile proceedings, it could not have envisioned the extent to which its course correction would be taken. Instead of simply leveling the procedural playing field between the adult and juvenile systems, In re Gault and its progeny began a journey which has taken us dangerously far from original intent, the “care and rehabilitation” of young offenders. And so it becomes clear' that while today we quash KB.’s appeal as interlocutory and are able to continue his treatment and rehabilitation, without a fundamental change in the current system, tomorrow we might not be so fortunate.

Appeal quashed.

BROSKY, J., concurs in the result.

      . Officer Hartley’s testimony regarding the reason for the “pat-down” searches is somewhat inconsistent. On direct examination, he testified that he searched the males for his safety because he was by himself. On cross-examination, however, Officer Hartley testified that although he feared for his safety, he had no specific information that any of the youths were armed.

      . 18 Pa.C.S. § 5502 states: “Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant ... may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.”

      . 18 Pa.C.S. § 5503 states: “A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: ... (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. An offense under this section is a misdemeanor of the third degree ... if he persists in disorderly conduct after reasonable warning or request to desist.”

      . K.B.'s school records indicate that he has missed 31 out of a possible 56 days of school this year and 156 out of a possible 181 days of school last year.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons....” Id. at 30, 88 S.Ct. at 1884-85.

      . It is well settled that “in all cases of lawful arrests, police may fully search the person incident to the arrest.” Commonwealth v. Williams,
        390 Pa.Super. 493, 497, 568 A.2d 1281, 1283 (1990); see Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979); Chimel v. California, 395 U.S. 752, 756, 89 S.Cl. 2034, 2036, 23 L.Ed.2d 685 (1969); Commonwealth v. Long, 489 Pa. 369, 374, 414 A.2d 113, 115 (1980).

      . Judge Jelin’s intentions were made clear by his final comments to K.B: "You’ll be back in court at that time (60 days later). And I'm telling you, young man, if there’s any further involvement with the juvenile system, you don’t have anything good on your background, school absences, gambling, and everything else. So if you want to stay out on the street, my suggestion is you get an education.” Adjudicatory Hearing at 34.

      . The first juvenile court was established in Illinois in 1899. Within a short span of years, every jurisdiction in America had some form of juvenile court system. See In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967); Comment, The Supreme Court and Pretrial Detention of Juveniles: A Principled Solution to a Due Process Dilemma, 132 U.Pa.L.Rev. 95, 98 (1983).

      . See Claudia Worrell, Pretrial Detention of Juveniles: Denial of Equal Protection Masked by the Parens Patriae Doctrine, 95 Yale L.J. 174, 176 (1985). See also Schall v. Martin, 467 U.S. 253, 263-66, 104 S.Ct. 2403, 2409-11, 81 L.Ed.2d 207 (1984); McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 1988, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358, 376-77, 90 S.Ct. 1068, 1079, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. at 15-16, 87 S.Ct. at 1437; Kent v. United States, 383 U.S. 541, 554-55, 86 S.Ct. 1045, 1053-54, 16 L.Ed.2d 84 (1966); In re Holmes, 379 Pa. 599, 603, 109 A.2d 523, 525 (1954); Commonwealth v. Rudd, 366 Pa.Super. 473, 478, 531 A.2d 515, 518 (1987).

      . In re Gault, 387 U.S. at 14, 87 S.Ct. at 1436. Studies indicate that even a relatively short period of imprisonment in adult facilities can cause a juvenile severe and irreparable damage. The suicide rate among juvenile inmates is five times higher than youths in the general population and eight times higher than youths committed to juvenile rehabilitation centers. Furthermore, the hostile environment, poor sanitation, and lack of privacy manifest intense feelings of fear and anxiety within the juvenile. Additionally, juveniles are frequent victims of physical and sexual assault by adult members of the prison population. Kristina H. Chung, Kids Behind Bars: The Legality of Incarcerating Juveniles in Adult Jails, 66 Ind.L.J. 1001, 1006 (1991).

      . "Parens patriae, literally 'parent of the countiy,’ refers traditionally to the role of the state as sovereign and guardian of persons under a legal disability to act for themselves such as juveniles, the insane, or the unknown. The doctrine originated in the ancient duty of the English sovereign to protect all children within his or her realm....” Claudia Worrell, supra note 9, at 176.

      . Prior to the late 1960's, juveniles were entitled only to the fundamental due process right of fair treatment and were frequently denied such rights as; 1) bail; 2) indictment by a grand jury; 3) speedy and public trials; 4) trial by jury; 5) immunity against self-incrimination; 6) confrontation of adverse witnesses; and in some cases 7) representation by counsel. Kent, 383 U.S. at 555, 86 S.Ct. at 1054.

      . In essence, the petitioner claimed that the disparity between the maximum term of five years in a juvenile detention center and the maximum sentence of life imprisonment in the adult system, required that the juvenile court must hold a hearing that comports with the requirements of due process before waiving jurisdiction over the juvenile.

      . The Supreme Court’s ruling required the juvenile court to determine whether a juvenile should be treated as an adult prior to the holding of an adjudicatory hearing.

      . The Juvenile act provides:
      A child may be taken into custody:
      (1) Pursuant to an order of the court under this chapter.
      (2) Pursuant to the laws of arrest.
      (3) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from his surroundings, and that removal is necessary.
      42 Pa.C.S.A. § 6324(1)—(3)

      . The Juvenile Act defines a "delinquent act" as "an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinance.” 42 Pa.C.S.A. § 6302.

      . 42 Pa.C.S.A. § 6337. This section provides the right to representation at all stages of the proceedings and requires the court to furnish counsel if the juvenile does not have the financial resources to employ counsel himself. 42 Pa.C.S.A. § 6337 (Official Comment 1976) (citing Kent, 383 U.S. 541, 86 S.Ct. 1045 (1966) and Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967)).

      . 42 Pa.C.S.A. § 6338. "The provisions against self-incrimination and the right to cross-examine adverse witnesses are required by Gault, supra." 42 Pa.C.S.A. § 6338 (Official Comment 1976).

      . 42 Pa.C.S.A. § 6341. The requirement of proof beyond a "reasonable doubt” marked a significant change from the earlier standard of “sufficient competent evidence” announced in In re Holmes, 379 Pa. 599, 606, 109 A.2d 523, 526 (1954), and reflects the standard announced in Winship, supra. 42 Pa.C.S.A. § 6341 (Official Comment 1976).

      . In In re Harvey, 222 Pa.Super. 222, 295 A.2d 93 (1972), we announced for the first time that juveniles are entitled to “as strong a right as that of an adult” to the protections of the Fourth Amendment. Although this precise issue has not been reviewed by either the Pennsylvania or the United States Supreme Court, its ruling has become so deeply entrenched in our system of jurisprudence, that the juvenile status of the person seeking the Fourth Amendment’s protection is rarely even considered. See, e.g., In the Interest of J.H., 424 Pa.Super. 224, 622 A.2d 351 (1993) (suppressing contraband discovered in juvenile's possession in the absence of probable cause for warrantless search). But see Id. (Cirillo, J., dissenting) (arguing that the full panoply of constitutional rights afforded to adults should be relaxed, in order to better achieve the goals of the Juvenile Act).

      . There has been considerable discussion within the courts of this Commonwealth regarding the proper standard to evaluate the waiver of the right to remain silent by juveniles. The original standard was announced in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). In McCutchen, the Pennsylvania Supreme Court announced the per se requirement that a juvenile must have the opportunity to consult with an interested and informed adult before waiving the right to remain silent. This view was overruled with the Supreme Court’s decision in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983) . In Christmas, the Court held that there was a rebuttable presumption that a juvenile lacks competence to waive the right to remain silent without first consulting with an interested and informed adult. In Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984) , the Supreme Court overruled Christmas and set forth the adult “totality of the circumstances” standard in determining whether a juvenile had knowingly and voluntarily waived the right to remain silent. For a complete analysis of the history of this rather mercurial standard, see Comment, Now My Son, You Are a Man: The Judicial Response to Uncounseled Waivers of Miranda Rights By Juveniles in Pennsylvania, 92 Dickinson.L.Rev. 153 (1987).

      . See Matter of Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990); In re DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977).

      . See In the Interest of LaMore, 356 Pa.Super. 322, 514 A.2d 633 (1986); Commonwealth v. McNaughton, 252 Pa.Super. 302, 381 A.2d 929 (1977). Recently, we have expanded this rule and held "that a juvenile’s probation cannot be revoked solely on the basis of extrajudicial statements made by an accuser whom the juvenile has not been permitted to confront.” In the Interest of Davis, 377 Pa.Super. 46, 546 A.2d 1149 (1988) (affd, by an equally divided Supreme Court, 526 Pa. 428, 586 A.2d 914 (1991)).

      . In In Interest of A.P., 421 Pa.Super. 141, 617 A.2d 764 (1992), we suppressed the admission of 64 vials of crack cocaine found on the person of A.P. and vacated the disposition of delinquency entered against him, solely because the police had no probable cause to arrest A.P.