author:
BECK, Judge:
      JOHNSON, Judge,

text:
    614 A.2d 312
    In re S.M. Appeal of F.M. and L.M.
    Superior Court of Pennsylvania.
    Argued May 21, 1992.
    Filed Oct. 1, 1992.

      Kathy Jo Liddick, Towanda, for appellants.
    L. Carter Anderson, Montrose, for participating party.
    Before BECK, JOHNSON and HUDOCK, JJ.
   BECK, Judge:

In this opinion, inter a1¡ia, we revisit the standard to be applied in evaluating effectiveness of counsel in a dependency proceeding.

This is an appeal from an order continuing the placement of fifteen-year-old S.M. in foster care after he was found to be a dependent child under section 6302 of the Juvenile Act. F.M. and L.M., appellants and parents of S.M., raise three issues on appeal: 1) whether the evidence was sufficient to support a finding of dependency; 2) whether the evidence was sufficient to support the trial court’s finding that there was a clear necessity to place S.M. outside the home; and 3) whether appellants’ trial counsel was ineffective. Our careful review of appellants’ arguments and of the trial court record indicates that none of these contentions has merit. We affirm.

S.M. was placed in foster care after being involved in a confrontation with his father in which his father struck him in the rib cage. On several occasions S.M. reported to his school psychologist that his father hit him and that his home life was unbearable. S.M. has a recent history of discipline and academic problems at school and displayed inappropriate behavior towards female classmates. S.M. was in therapy for a short time to help him with his problems but was withdrawn when he “fell in love” with his therapist.

Judge Kenneth Seamans found that S.M. was “without proper parental care or control ... necessary for his physical, mental, or emotional health, or morals----” and that he was, therefore, a “dependent child” as defined in section 6302 of the Juvenile Act. In the order on appeal, Judge Seamans continued S.M.’s placement in foster care and ordered that both he and his family receive counselling and that his parents attend parenting classes.

Appellants contend that the evidence presented was insufficient to support a finding of dependency. A finding of dependency must be supported by “clear and convincing evidence” that proper parental care and control are not available. In the Interest of Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988); In Re Barclay, 321 Pa.Super. 417, 468 A.2d 778 (1983). Such a conclusion requires that testimony be “so clear, direct, weighty, and convincing as to enable the [trier of facts] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In the Interest of Justin S. at 100, 543 A.2d at 1197. While our standard of review in dependency cases is generally quite broad, we must defer to the fact finding of the hearing judge who had the opportunity to observe and rule upon the credibility of the witnesses and parties who appeared. Id., 375 Pa.Superior Ct. at 100, 543 A.2d at 1198.

Judge Seamans heard extensive testimony from which he concluded that S.M. was “without proper parental care, control or education as required by law----” This conclusion was based largely on his finding that S.M.’s father employed excessive force in disciplining S.M. Our review of the record reveals that Judge Seaman’s findings were supported by clear and convincing evidence. He did not err by adjudicating S.M. to be a dependent child.

Ronald Miller, S.M.’s school psychologist, testified that S.M. had been experiencing serious disciplinary and academic problems during the recent school year. In particular, Mr. Miller described the inappropriate behavior which S.M. had displayed toward female students. Mr. Miller testified that S.M. had been in therapy for these problems and that he recommended to appellants that S.M. receive further therapy but that they did not follow his advice, even after S.M. was suspended from school for his inappropriate behavior. Mr. Miller also described conversations which he had had with S.M. in which he had the opportunity to gain insight into S.M.’s relationship with his father. During these conversations, S.M., often in tears, would describe how he had run away from home due to his unbearable home life and the fact that his father would hit him. Mr. Miller had on several occasions seen fit to put S.M. in contact with Children’s Services, hoping that they might be able to help S.M. with the problems he was having at home.

Judge Seamans also heard testimony from Carol Newhart, a Children’s Services caseworker, who discussed the findings of the investigation which she had done subsequent to a report that S.M. had been struck in the ribs by his father. Ms. Newhart testified that S.M. has problems dealing with his relationship with his father, that his father has a history of “inappropriate discipline” and “poor parenting skills,” and that S.M.’s behavior was “age inappropriate.” Ms. Newhart also testified that the relationship between S.M. and his father was deteriorating.

Finally, Dr. Albert Bertseh testified regarding the findings he made when S.M. was brought to be examined after reportedly being struck in the ribs by his father. Dr. Bertseh testified that S.M. had a “clinical fracture” of the rib, that the history which S.M. had given revealed that S.M. had been struck in the ribs by his father’s knee, and that these two facts were consistent with one another.

After hearing all of this testimony, Judge Seamans concluded that S.M.’s parents were not providing S.M. with the necessary support and that S.M. had certain behavioral and psychological problems to which his family life contributed. The record does not support appellants’ contention that the evidence was insufficient for a finding of dependency. To the contrary, the hearing judge’s adjudication of dependency was supported by clear and convincing evidence.

Appellants next argue that there was “no evidence presented of the clear necessity of removing the minor child from the home.” In support of their contention, appellants argue that because no testimony was elicited from either of them regarding their ability to care for or control S.M., and because the trial court did not make a sufficient inquiry into alternative options, S.M.’s placement outside the home was based on insufficient evidence.

The relevant section of the Juvenile Act covering disposition of a dependent child provides, in pertinent part:

(a) General rule. — If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who ... is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(in) A public agency authorized by law to receive and provide care for the child.

42 Pa.C.S.A. § 6351. The Juvenile Act has been interpreted to allow for the removal of a child from the custody of his parents only where there is clear necessity for such removal. In Re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988). Such necessity is implicated where the welfare of the child demands that he be taken from his parents’ custody. Id. We note that a decision to remove a child from his or her parents’ custody must be reconciled with the “paramount purpose” of preserving family unity. In Re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983). This reconciliation may require that temporary custody of the child be given to someone other than the parents until such time as the welfare of the child no longer demands that he be separated from his parents. See Frank, supra (decrees concerning children are temporary and subject to modification to meet changing conditions; appellant may institute proceedings to recover her child and present evidence or professional evaluations regarding any improvement in her parenting skills and abilities); see also Miller, supra (when child’s home is inadequate, state agency should take steps necessary to instruct parents in skills needed). Ultimately, a hearing court is given broad discretion in meeting the goal of entering a disposition “best suited to the protection and physical, mental, and moral welfare of the child.” In Re Lowry, 506 Pa. 121, 484 A.2d 383 (1984).

We find that appellants’ contention in this regard is meritless. Judge Seaman’s factual findings support the necessity of continuing S.M.’s placement in foster care. Moreover, his order clearly accords with the relevant statutory provisions, case law, and policy dictates in support of both family reunification and the child’s best interests. The testimony revealed not only that S.M. was in need of help, but that at the present time S.M.’s parents were incapable of providing him with proper parental guidance, support, and discipline. With this in mind, the trial court required that S.M. receive individual counselling to help him with his problems, that his family receive family counselling, and that his parents attend parenting classes. The judge’s decision was consistent with the Children’s Services caseworker’s recommendations and was supported by the facts of the case.

Finally, appellants contend that their court appointed trial counsel was ineffective. It is clear that in a dependency proceeding parents are entitled to counsel. The Juvenile Act explicitly states that “a party is entitled to representation by legal counsel at all stages of any proceeding under this chapter and if he is without financial resources or otherwise unable to employ counsel to have the court provide counsel for him.” 42 Pa.C.S.A. § 6337. This court’s recent decision in In the Matter of J.P., 393 Pa.Super. 1, 573 A.2d 1057 (1990) (en banc), established that parents whose children are the subjects of dependency proceedings have the right not only to counsel but to effective representation by counsel. However, the J.P. court was unable to establish a precedential standard for defining effective counsel.

The tension in establishing a standard in In the Matter of J.P. was between adopting a new rule of fundamental fairness, which was advocated by Judge Tamilia, and adoption of the standard for ineffectiveness applied in the criminal law, which was advocated by Judge Montemuro. While the rule of fundamental fairness does not provide a sufficiently clear test, adoption of the standard applied in criminal cases is also inappropriate in that such an approach focuses too heavily on the rights of the parents at the expense of the interests of the child. As Judge Johnson noted in In the Matter ofJ.P., “[t]he focus in a dependency/abuse case is not on the parent ... the focus is on the child and that child’s best interests.” Id. at 38, 573 A.2d at 1076 (Johnson, J., dissenting).

Under the criminal standard, in order to prevail on an ineffectiveness of counsel challenge, the appellant must show that she had a claim of arguable merit, that counsel handled the claim unprofessionally and that counsel’s action caused her prejudice. Commonwealth v. Ferrari, 406 Pa.Super. 12, 593 A.2d 846 (1991). We hold that in the context of a dependency proceeding, before counsel can be deemed ineffective, under the above stated criminal standard, the appellant must make a strong showing of ineffectiveness of counsel. Under this heightened test the parent must come forward with evidence that indicates to a high degree of likelihood that but for an unprofessional error on the part of counsel, the child would not have been found to be dependent.

This heightened standard reflects the fact that a finding of dependency does not constitute a deprivation of liberty as does a sentence of imprisonment in a criminal setting. It also reflects the reality that it is of paramount importance in a child’s life to have decisions about the child’s status and placement be final, and not subject to challenge absent a strong showing of ineffectiveness on the part of counsel. As this court has noted, “[t]he state’s interest in finality is unusually strong in child-custody disputes.... It is undisputed that children require secure, stable, long term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current ‘home’ under the care of his parents or foster parents, especially when such uncertainty is prolonged.” In the Matter of J.P., 393 Pa.Super. at 15, 573 A.2d at 1064 (citing Lehman v. Lycoming County Children’s Services, 458 U.S. 502, 513-514, 102 S.Ct. 3231, 3238-3239, 73 L.Ed.2d 928 (1982)).

In light of these special considerations there is good reason for applying a more stringent test for measuring effectiveness of parents’ counsel in dependency proceedings than for measuring the effectiveness of lawyers in most other settings. See Adoption of T.M.F., 392 Pa.Super. 598, 632-38, 573 A.2d 1035, 1053-56 (1990) (Beck, J., concurring). While identifying the unique needs of children, the heightened standard still provides protection for parents who have been inadequately served by their lawyer. It recognizes that parents must have effective counsel in order to vindicate their interest in raising their own children without the interference of the state. As Judge Montemuro stated in his Concurring Opinion in In the Matter of J.P., “Whether the end result involves incarceration, confinement in a mental hospital or youth treatment center, or as here the removal of one’s child, the forces of opposition (the state) are always larger and better equipped, but are not necessarily either correct or just in their assessments.” 393 Pa.Super. at 28, 573 A.2d at 1071 (Montemuro, J., concurring).

Under this standard, it is clear that appellants’ contention that their trial counsel was ineffective is meritless. Appellants have not demonstrated that there is a high degree of likelihood that but for an unprofessional error on the part of counsel, S.M. would not have been found dependent. Appellants point to the following acts and omissions which they contend support their claim of ineffectiveness of trial counsel: (1) that their attorney did not spend enough time preparing for the hearing; (2) that he did not “object to testimony that the minor child had engaged in inappropriate sexual activity”; (3) that he did not take testimony from S.M.’s primary care physician to refute the contention that S.M. had suffered a “clinical fracture” of his ribs resulting from his father’s abuse; and (4) that he failed to call certain witnesses who would have undermined S.M.’s credibility.

The first and second of appellants’ allegations of ineffectiveness appear to be interrelated. Appellants argue that counsel devoted insufficient time to preparing for the hearing and that one result of his lack of preparation was that he was unfamiliar with the allegations of the petition originally filed by Susquehanna County Children’s Services. Thus, appellants argue that since counsel did not know that the petition failed to mention anything about S.M.’s allegedly inappropriate sexual behavior, he did not object to testimony on this subject at the hearing. Appellants suggest that if counsel had been better prepared, he would have objected to any mention of this subject since appellants had not been given notice that evidence of S.M.’s sexual problems would be offered in support of a finding of dependency.

Appellants’ generalized contention that counsel failed to prepare for the adjudicatory hearing is clearly without merit. However, we might well find arguable merit in appellants’ more specific allegation that counsel improperly failed to object to the admission of evidence of S.M.’s sexual behavior on the ground that appellants were denied the opportunity to counter this evidence because they were not given any notice that Children’s Services intended to rely on it in seeking a finding of dependency. Nevertheless, even assuming there is merit in this contention, we cannot conclude that appellants have demonstrated a high degree of likelihood that without this evidence, S.M. would not have been adjudicated dependent. The trial court’s order, while making ambiguous reference to S.M.’s sexual behavior, clearly indicates that the trial court’s finding of dependency was largely grounded in the court’s finding that S.M.’s father had engaged in inappropriate physical discipline of S.M. Thus, we cannot say with any degree of certainty that S.M. would not have been adjudicated dependent had the testimony concerning his sexual behavior not been presented.

Turning to appellant’s remaining allegations of ineffectiveness, we find that neither of these allegations presents an arguably meritorious claim. Neither counsel’s failure to take testimony from S.M.’s primary care physician nor his failure to call two other witnesses acquainted with S.M. can be seen as anything more than the exercise of counsel’s professional judgment. Moreover, upon review of the entire record, we find highly unlikely that had counsel called these witnesses the result of the hearing would have been different.

Appellants contend that the primary care physician would have refuted the evidence that S.M. had a clinical fracture of the rib resulting from a blow from his father by testifying that several months prior to the incident in which S.M.’s father allegedly struck or kicked him in the ribs, S.M. had fractured a rib in the same area. Appellants further argue that this doctor would have stated that this old fracture might have appeared on the x-ray of S.M.’s ribs taken after the incident in question, and that this doctor might also have posited other reasons for the pain S.M. stated he was experiencing in that area.

Our review of the testimony taken at the hearing reveals that the existence of S.M.’s prior fracture was elicited and that the subject of S.M.’s present injury and pain was fully explored through both direct and cross examination of the doctor who treated S.M. shortly after the incident in which he was struck by his father. Trial counsel’s failure to call an additional witness concerning these subjects was not crucial to the trial court’s determination of dependency.

Similarly, it cannot be said that it is highly likely that the trial court would not have found S.M. dependent had it heard testimony from the two other witnesses whom appellants allege trial counsel should have called. These two witnesses allegedly were acquainted with S.M. and saw him shortly after the incident with his father. They allegedly would have testified that S.M. did not exhibit pain shortly after the alleged incident with his father, thereby undermining S.M.’s credibility, and further would have testified that S.M. had a history of running away from home. This testimony, according to appellants, would have raised a question as to whether S.M.’s real motive in reporting the incident to Children’s Services was simply to get out of his father’s house.

Once again, our review of the testimony presented at the hearing reveals that the subject of S.M.’s pain after the alleged incident with his father and the subject of S.M.’s previous attempts to run away from home were fully explored. Specifically, S.M.’s brother was called by appellants’ counsel to testify to the incident with S.M.’s father and as to whether S.M. appeared to be in pain immediately thereafter, and the school psychologist testified as to S.M.’s prior attempts to run away. Therefore, we cannot conclude that the trial court’s determination would have been different if more evidence of this nature had been presented.

Clearly, under the heightened standard we herein adopt, appellants cannot prevail on their claims of ineffectiveness. For the foregoing reasons, we affirm the trial court’s order.

JOHNSON, J. files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I join completely so much of my distinguished colleague’s Opinion as sets forth the standard of review in dependency cases, carefully reviews the record, and concludes that Judge Kenneth Seamans’ adjudication of dependency was supported by clear and convincing evidence. I also join in that portion of my colleague’s Opinion that finds no merit in the parents’ contention that there was no evidence presented of the clear necessity of removing the minor child from the home.

F.M. and L.M., the parents of S.M., the child found to be dependent, also seek to argue on this appeal that the representation they received “was so inadequate and lacking that it undermined the truth-determining process [to the extent] that no reliable adjudication or disposition of a dependent child could have taken place.” Brief for Appellants, pages 4, 7-13. In response, Judge Beck would attempt to establish a standard to be applied in evaluating claims of ineffectiveness of counsel in dependency proceedings. For several reasons, I must respectfully dissent from such an undertaking.

In the Matter of J.P., 393 Pa.Super. 1, 573 A.2d 1057 (1990), was decided March 27, 1990. At that time, I dissented from what appeared to be my colleagues’ belief that ineffective assistance of counsel was a concept that could be transplanted into a civil dependency proceeding and their implicit assertion that the effectiveness of the representation of a parent is an appropriate ground upon which to review the action of our trial courts in dependency cases under the Juvenile Act and the Child Protective Services Law.

It remains unclear to this writer whether this Court has, indeed, put to rest the initial threshold question presented in Matter of J.P., namely, whether ineffectiveness of counsel is an available issue for appellate review in a dependency case. In that case, this question was summarily disposed of in the lead opinion with the following:

The first part of that question may be quickly and summarily answered yes; ineffectiveness may be alleged as a basis for appellate review. The Juvenile Act, 42 Pa.C.S.A. § 6337. Right to counsel, provides that a party is entitled to representation by legal counsel at all stages of any proceeding under the Act, and if indigent, the right to have the court provide counsel for him.

Matter of J.P. at 8, 573 A.2d at 1061 (boldness in original). That lead opinion was joined by two judges. In a concurring and dissenting opinion joined by two other judges, Judge Montemuro accepted the short assertion on cognizability found in the lead opinion. Id., 393 Pa.Superior Ct. at 22, 573 A.2d at 1068, disagreeing only on the reasoning as to the suggested procedure for preserving and raising the claim. At least six of the nine judges on the court en banc viewed the right to be statutory in nature. Even Judge Beck, in her concurring opinion, seemingly adopted the conclusion that the right is statutory, declaring that any interpretation of the Juvenile Act that would permit the appointment of ineffective counsel would render the statutory right worthless and would subvert the intent of the legislature. Id., 393 Pa.Superior Ct. at 30-31, 573 A.2d at 1072.

The only case in our Supreme Court that has found a statutory right to the effective assistance of counsel is In Re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982), affirming 279 Pa.Super. 401, 421 A.2d 261 (1980). There, the court was required to balance the competing interests of the Commonwealth and of the individual in the civil commitment context. The Hutchinson court recognized that involuntary civil commitment of mentally ill persons constitutes deprivation of liberty and may be accomplished only in accordance with due process protections. Id., 500 Pa. at 156, 454 A.2d at 1010, citing Appeal of Niccoli, 472 Pa. 389, 395 n. 4, 372 A.2d 749, 752 n. 4 (1977).

Matter of J.P. has been cited but once since March 1990, and then for the limited proposition that an issue of the propriety of an adjudication of dependency may be reviewed on the basis of ineffective counsel, even where the initial dependency finding was not followed by either a request for a ten-day hearing or reconsideration. In Re A.S., 406 Pa.Super. 466, 471, 594 A.2d 714, 716 (1991).

Our legislature has not yet elevated the statutory right to counsel found in the Juvenile Act, 42 Pa.C.S. § 6337, to one of constitutional dimension. Moreover, I continue to seek, without finding, a clear and solid path through our cases to permit such an elevation. See Matter of J.P., 393 Pa.Super at 39, 573 A.2d at 1073-76, (Johnson, J., dissenting). I would therefore decline to participate in any attempt to fashion a procedure to implement the pronouncement made in Matter of J.P. concerning a parental right to use the ineffectiveness of counsel notion to secure additional review of our trial courts’ performance in dependency proceedings.

Another independent reason exists, I believe, for refraining at this time from trying to establish a precedential standard for evaluation. The appeal in Matter of J.P. was specially scheduled before our en banc court to consider whether ineffectiveness of counsel is an available issue for appellate review in a dependency case and, if so, how and when may that issue be raised in the context of a dependency proceeding. Matter of J.P. at 8, 573 A.2d at 1061, Tamilia, J., lead opinion. While seven members of the court agreed, without extensive analysis, that a statutory right to effective assistance did exist, there was nothing approaching a consensus as to how and when the issue might be raised.

Writing in the lead opinion, which was joined by Judges Brosky and Popovich, Judge Tamilia advocated a review standard which coupled the eligibility standard for post conviction relief in a criminal proceeding, 42 Pa.C.S. § 9543(a)(2)(ii), with a fundamental fairness doctrine, in order to:

achieve, with the traditional broad scope of review in dependency cases, an effective and expeditious determination of ineffectiveness of counsel issues, without violating the underlying tenants of the juvenile proceeding.

Matter of J.P. at 18, 573 A.2d at 1066 (Tamilia, J.). The eligibility standard derived from the Post Conviction Relief Act would require that counsel seeking to establish ineffective assistance of counsel “must plead and prove that counsel’s stewardship ‘so undermined the truth-determining process that no reliable adjudication’ or disposition of a dependent child could have taken place.” Id

Contrasting that approach, Judge Montemuro, writing on behalf of himself and Judges Rowley and Cavanaugh, concluded that the same ineffectiveness standard as has been traditionally employed in review of adult criminal matters should be applied in a child dependency proceeding. Matter of J.P. at 28, 573 A.2d at 1071 (Montemuro, J., dissenting).

My eminent colleague, Judge Beck, -writing just for herself in Matter of J.P., declared that she “would ... adopt the heightened standard that [she had] previously argued should apply to claims of ineffectiveness of parents’ counsel in parental termination proceedings.” Id., 393 Pa.Superior Ct. at 32, 573 A.2d at 1073 (Beck, J., dissenting).

None of the three suggested standards proposed in three separate opinions in Matter of J.P. was adopted by even a majority of that en banc panel. On this appeal, my colleague would urge the adoption of the standard which had been advanced by only one member of our court on the Matter of J.P. panel and opposed, at least implicitly, by at least six commissioned judges on the same panel. I am unaware of any case law which would expressly prohibit this three-judge panel from declaring a position not in conflict with a stated position of this court or our Supreme Court. Nevertheless, I am reluctant to believe that the responsibility which nine of us left undischarged at the time of filing Matter of J.P. is best fulfilled by three of us now adopting a minority viewpoint on behalf of the entire court.

I continue to believe, as I stated in Matter of J.P., 393 Pa.Super. at 33, 573 A.2d at 1076, that the concept of ineffective assistance of parents’ counsel has no place in a civil dependency proceeding where the needs of the child are paramount. Our court has, thus far, been unable to express a view of a majority of our court on the standard(s) to be applied in effectuating a policy of ineffective assistance of counsel claims for parents of children subject to dependency adjudications. For the reasons set forth above, I must respectfully dissent from that portion of my distinguished colleague’s Opinion as would establish a “heightened standard” for application in dependency proceedings involving alleged ineffectiveness of parents’ counsel.

      . This issue is appropriately raised on direct appeal from the trial court’s final dispositional order. Since the Juvenile Act does not require or even permit the filing of post trial motions, appellants had no duty to preserve this issue through such motions in the trial court. Nevertheless, we do note that appellants properly raised the issue of counsel’s ineffectiveness in their Concise Statement of Matters Complained of on Appeal, filed with the trial court pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

      . We recognize that dependency hearings by their very nature must be less formal than other civil or criminal proceedings. Consequently, the requirements of notice are relaxed. The instant case does not directly address the question of whether appellants were required to receive notice that S.M.’s sexual conduct would be raised.


source: Caselaw Access Project

author: CERCONE, Judge.

license: Public Domain

text:
    614 A.2d 320
    Carrol F. SANDERS and Others Similarly Situated, Appellant, v. LOOMIS ARMORED, INC.
    Superior Court of Pennsylvania.
    Argued June 2, 1992.
    Filed Oct. 5, 1992.

      Ian J. Blynn, Camp Hill, for appellant.
    Roxanne N. Sokolove, Washington, D.C., for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the order of the Court of Common Pleas of Dauphin County granting summary judgment in favor of appellee Loomis Armored, Inc. (“employer”), and against appellants Carrol F. Sanders and others similarly situated (“employees”). Employees filed this class action suit to recover overtime wages allegedly owed them by employer for hours worked between February 1, 1989 through January 13, 1990. Employer filed a motion for summary judgment based upon a 1990 amendment to the Pennsylvania Minimum Wage Act, 43 P.S. § 333.105(b)(7) (“Minimum Wage Act”). The trial court granted employer’s motion holding that the 1990 amendment: (1) exempted employer from its overtime provisions; and (2) bars employees’ claim for overtime wages. This timely appeal followed.

Employees raise the following issue for our review:

Whether the Pennsylvania Minimum Wage Act, 42 P.S. § 333.101 et seq., as amended by 1990, July 9, P.L. 1190-79, may constitutionally retroactively extinguish Plaintiffs’ vested right in an existing cause of action for overtime wages.

Our standard of review of an order granting summary judgment is well-settled. Summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P., No. 1035(b), 42 Pa.C.S.A In considering a motion for summary judgment, a court must examine the entire record in the light most favorable to the non-moving party, and the court is not to decide issues of fact but merely determine whether any such issues exist, and to resolve all doubts in favor of the non-moving party. Holmes v. Lado, 412 Pa.Super. 218, 222, 602 A.2d 1389, 1391 (1992), allocatur denied, 530 Pa. 660, 609 A.2d 168 (1992); Citsay v. Reich, 380 Pa.Super. 366, 370, 551 A.2d 1096, 1098 (1988).

The issue in this case focuses on the language and application of the 1990 amendment to the Minimum Wage Act to the overtime hours worked by employees between February 1, 1989 through January 13, 1990. The Minimum Wage Act provides that:

The evils of unreasonable and unfair wages as they affect some employes employed in the Commonwealth of Pennsylvania are such as to render imperative the exercise of the police power of the Commonwealth for the protection of industry and of the employes employed therein and of the public interest of the community at large.

43 P.S. § 333.101. Prior to February 1, 1989, an “employe” under the Minimum Wage Act excluded any individual to the extent that he or she was subject to the Fair Labor Standards Act of June 25, 1938, as amended, 29 U.S.C.A. § 201 et seq. The overtime provisions of the Fair Labor Standards Act exclude “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to provisions of [the Motor Carrier Act].” 29 U.S.C.A. § 213(b)(1).

In 1989, the legislature amended the definition of “employe” to include “any individual employed by employer” thereby eliminating the previous reference to the Fair Labor Standards Act. In July, 1990, the legislature corrected this inconsistency between federal and state law. On July 9, 1990, the legislature again amended the Minimum Wage Act to provide:

(b) Employment in the following classifications shall be exempt from the overtime provisions of this act:
* * * # * *
(7) Any employe of a motor carrier with respect to whom the Federal Secretary of Transportation has power to establish qualifications and the maximum hours of service under 49 U.S.C. § 3102(b)(1) and (2) (relating to requirements for qualifications, hours of service, safety and equipment standards).

43 P.S. § 333.105(b)(7). The Act of July 9, 1990, further provides that:

No claim shall be made for overtime pursuant to the act to which this is an amendment by an employee of a motor carrier with respect to whom the Federal Secretary of Transportation has power to establish qualifications and maximum hours of service under 49 U.S.C. § 3102(b)(1) and (2) (relating to requirements for qualifications, hours of service, safety and equipment standards after the effective date of this act.

Section 3 of the Act of July 9, 1990, P.L. 348, No. 79 (“Act”) (emphasis added). Sections 4 and 5 of the Act provide that the amendment shall take effect immediately (July 9, 1990) and shall be retroactive to February 1, 1989.

Employees filed a claim for overtime compensation after the effective date of the 1990 amendment to the Minimum Wage Act. Employees acknowledge that their employment falls within the exemption defined in 43 P.S. § 333.105(b)(7). However, they argue that their due process rights guaranteed by both the Pennsylvania and United States Constitutions prevent retroactive application of the amendment. Specifically, employees argue that the 1990 amendment to the Minimum Wage Act may not “constitutionally retroactively extinguish [employees’] vested right in an existing cause of action for overtime wages.”

In Pennsylvania, it is well-settled that a court must construe the words of a statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A. § 1921(a). A statute is normally construed to operate prospectively. Pope v. Pennsylvania Threshermen & Farmer’s Mutual Casualty Ins. Co., 176 Pa.Super. 276, 278, 107 A.2d 191, 192 (1954). No statute shall be retroactive unless clearly and manifestly so intended by the legislature. Krenzelak v. Krenzelak, 503 Pa. 373, 380, 469 A.2d 987, 990 (1983).

Here, the legislature clearly and manifestly provided for retroactive application of the 1990 amendment. However, retroactive application of a law is not per se prohibited. It is prohibited only if it offends due process. Tony Savatt, Inc. v. Latrobe Brewing Co. 400 Pa.Super. 296, 310, 583 A.2d 796, 802 (1990), allocatur denied, 527 Pa. 668, 593 A.2d 843, cert. denied, — U.S. —, 112 S.Ct. 586, 116 L.Ed.2d 611 (1991). Laws which are applied retroactively offend the due process clause if, “balancing the interests of both parties, such application would be unreasonable.” Id. Retroactive laws which have been deemed reasonable are those which “impair no contract and disturb no vested right, but only [vary] remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and prosecuted.” Krenzelak v. Krenzelak, 503 Pa. at 382-83, 469 A.2d at 991 (quoting Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960)). If no vested right or contractual right is involved, an act is not retroactively construed if applied to a condition existing on its effective date, even though the condition results from events that occurred prior to that date. Pope v. Pennsylvania Threshermen & Farmer’s Mutual Casualty Ins. Co., supra, 176 Pa.Super. at 278, 107 A.2d at 192.

Pennsylvania Courts have addressed the concept of vested rights in regard to other economic legislation. However, because of the differences in the scope and nature of different economic benefits, we must conclude that these cases are inapposite to the instant case. For example, in Latella v. Unemployment Compensation Board of Review, 74 Pa. Cmwlth. 14, 459 A.2d 464 (1983), the claimants argued against the retroactive application of a pension offset provision to their unemployment compensation benefits. The Commonwealth Court held that “Section 901 of the [Unemployment Compensation] Law, 43 P.S. § 881, allows that there is no vested right to unemployment benefits, ‘[consequently, the legislature is free to amend the act in any particular, and constitutionally accord its amendments retroactive effect.’ ” Id. 459 A.2d at 471-72, 459 A.2d at 469-70. In Dupree v. Barney, 193 Pa.Super. 331, 163 A.2d 901 (1960), this court addressed the concept of vested rights in regard to workmen’s compensation benefits. We stated:

[Workmen’s compensation is] a system of compensation not imposed by law but established by agreement of the parties implied from their failure to express an intention to the contrary ... In legal effect the parties, by failing to express an intention not to be bound by the Act, incorporated its terms into their contract as if expressly written therein. Such right is contractual rather than a right or benefit conferred by the statute itself, and repeal of the statute cannot abrogate such vested contractual rights.

Id., 193 Pa.Superior Ct. at 336, 163 A.2d at 904-05.

“The essence of a vested right is fixity: rights are vested when they are fixed, unalterable or irrevocable.” Miller v. Johnstown Traction Co., 167 Pa.Super. 421, 428, 74 A.2d 508, 511 (1950). In the instant case, employees argue that they have a vested right in actions accruing under the Minimum Wage Act prior to its amendment in 1990. Employees cite our Supreme Court’s holding in Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980), as supporting their argument that the legislature may not extinguish a right of action which has already accrued to a claimant. The statute in Gibson, the Act of September 28,1978, P.L. 788, §§ 1 et seq. (Act 152), created statutory sovereign immunity for the first time in Pennsylvania. The appellants in Gibson filed five separate actions in trespass against the Department of Environmental Resources (DER). The appellants alleged that the DER’s negligent supervision of a dam caused a flood which resulted in the loss of life, limb and property. The question before our Supreme Court was whether Act 152 could constitutionally govern causes which became actionable prior to its enactment.

Our Supreme Court noted that the “Legislature’s repeal of a law which created a right of action does not disturb any actions accrued thereunder.” Id., 490 Pa. at 161, 415 A.2d at 83. Further, the Supreme Court held that:

There is a vested right in an accrued cause of action---- A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease. It would be an absolute injustice to abolish with the law all the effects it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right.

Id. (quoting Lewis v. Pennsylvania R.R. Co., 220 Pa. 317, 324, 69 A. 821, 823 (1908)). The true test of when a cause of action arises or accrues is “to establish the time when the Plaintiff could have first maintained the action to a successful conclusion.” Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 99, 470 A.2d 482, 485 (1983).

We note that in its Bill Analysis, the Pennsylvania Senate Labor and Industry Committee specifically recognized employees’ right to overtime compensation under the unamended version:

The U.S. Secretary is given the authority to set wage and hour standards for truckers involved in interstate commerce under 49 U.S.C. These employees are and have been exempt from the federal overtime requirements of the Fair Labor Standards Act. However, with the passage of the 1988 amendments to the state Minimum Wage Law, it is very clear that these employees are subject to the overtime section of the Pennsylvania Minimum Wage Law.

Bill Analysis of S.B. 1458, Senate Labor and Industry Committee (emphasis added). Here, employees could have first maintained their action when each, respectively: (1) worked in excess of forty (40) hours in one week; and (2) received less than the overtime wages specified under the Minimum Wage Act. For each employee, the date upon which the cause of action accrued would be prior to July 9, 1990, the effective date of the amendment excluding employees from the overtime wage provisions of the Minimum Wage Act. Therefore, we conclude that employees have a vested right in their cause of action which cannot be extinguished by the 1990 amendment to the Minimum Wage Act without violating their constitutional right to due process.

For the foregoing reasons, we conclude that retroactive application of 43 P.S. § 333.105(b)(7) to preclude employees’ cause of action violates the due process clause of the Pennsylvania and United States Constitution. Accordingly, we reverse the order of the lower court granting summary judgment in favor of employer and remand for further proceedings consistent with this memorandum.

Order granting summary judgment reversed. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.

      . From February 1, 1989 through January 13, 1990, employees worked for employer pursuant to a collective bargaining agreement which contained no provisions relating to overtime compensation. On January 13, 1990, employees and employer entered into a new collective bargaining agreement which made specific provisions for overtime compensation.

        . The Pennsylvania Constitution provides, in part:
      All men ... have certain inherent and indefeasible rights, among which are those of ... acquiring, possessing and protecting property....
      PA.CONST. Art. I, § 1. The United States Constitution provides, in part:
      [No State shall] deprive any person of life, liberty, or property, without due process of law....
      U.S.CONST, amend. XIV, § 1.


author: MONTEMURO, Judge:

text:
    614 A.2d 324
    In re Charles KASYCH, Sr. and Eva Kasych Trust. Appeal of Charles KASYCH, Jr., Anna Kasych, Julia Kasych Olaynick and Mary Kasych Markowicz.
    Superior Court of Pennsylvania.
    Argued July 30, 1992.
    Filed Oct. 8, 1992.

      Joan R. Sheak, Allentown, for appellants.
    Charles B. Calkins, York, for Calkins and Buchanan, participating parties.
    Larry R. Roth, Allentown, for Calkins and Buchanan, participating parties.
    Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order granting appellees’ petition to partition property held in trust for all of the litigants. Three issues are raised on appeal. First, whether the chancellor erred in finding that the trust property was subject to partition. Second, whether the chancellor abused his discretion in determining the value of the trust property. Third, whether the chancellor erred in upholding a deceased beneficiary’s bequest of her interest in the trust property.

The facts in this case trace the squabble of seven siblings over the control of family owned property. On July 24, 1957, the Kasych family acquired a 173 acre property (“Homestead Property”), with the title placed in the names of Charles Kasych, Sr. and Charles Kasych, Jr. On March 20, 1972, the Homestead Property was placed in trust for the Kasych family (“Trust Agreement”). Charles Kasych, Sr., Charles Kasych, Jr, and Helen Buchanan were appointed as trustees for the equitable and beneficial ownership of Charles Kasych Sr, his wife Eva Kasych, and their seven children; Charles Kasych Jr., Mary Kasych Markowicz, Anna Kasych, Julia Kasych Olaynick, Helen Kasych Buchanan, Mildred Kasych Calkins, and Vera Kasych. The Trust Agreement provided that with a majority vote, the trustees were empowered with the exclusive right to manage and maintain the Homestead Property. The decision to sell, however, required a unanimous trustee vote. If in the event that a beneficial owner desired to dispose of his share of the Homestead, the other beneficial owners had the exclusive right to purchase that share at a price equal to the sellers’ contribution to purchasing the property in 1957.

Charles Kasych, Sr. died intestate on November 23, 1975, and his wife Eva died intestate on February 16,1976. Letters of Administration were granted for both estates to Charles Kasych, Jr. Objections were filed by Helen Buchanan, Mildred Calkins, and Vera Kasych to the accountings and the inventories for both of their parents’ respective estates. After the actions were consolidated, both parties indicated that the family had reached an agreement (“Settlement Agreement”). On October 18, 1983, the terms of the Settlement Agreement were placed on the record and, after which, each party testified that they both understood and agreed with all of the terms of this agreement. One of the terms of the Settlement Agreement concerned the Homestead Property. This term provided that the 173 acre property be divided into two tracts. The trustees were to use their best efforts to sell Tract 1, which consisted of 150 acres of undeveloped land. Tract 2, which consisted of approximately 23 acres of land and a farm house, was to be conveyed by the trustees to Charles Kasych, Jr. The settlement further provided that if Tract 1 could not be sold within three years, the parties have the right to bring an action in partition.

On September 15, 1986, Vera Kasych died without issue. By the terms of her will, she devised her entire estate to her sister Helen Buchanan. She also stated in her will that, in the event that the devise of her estate does not give Helen Buchanan her interest in the Homestead Property, she expressly exercised her testamentary power of appointment to appoint her interest in the property to Helen Buchanan.

On November 13, 1989, appellees Helen Buchanan, individually and as Executrix of the Estate of Vera Kasych, and Mildred Calkins petitioned to partition Tract 1. The other four non-petitioning siblings opposed partition. The chancellor found that the petitioners were: (1) entitled to partition, (2) that the property could not be partitioned without spoiling the whole, and (3) that the 150 acre Tract 1 was worth $2,000,000. This appeal followed.

In reviewing a chancellor’s decision to grant a petition to partition, this court is limited to whether the chancellor’s findings of fact are supported by competent evidence, whether an error of law was committed, or whether the chancellor committed a manifest abuse of discretion. Alderfer v. Pendergraft, 302 Pa.Super. 210, 448 A.2d 601, 603 (1982). Conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable. Krosnar v. Schmidt, Krosnar McNaughton, Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980).

The first issue presented for our review is whether appellees are entitled to partition. “The purpose of partition is to afford those individuals who no longer wish to be owners the opportunity to divest themselves for a fair compensation.” Beall v. Hare, 405 Pa. 288, 292, 174 A.2d 847, 849 (1961). As a general rule, owners of undivided interests in real property have an absolute right to partition. Hyatt v. Hyatt, 273 Pa.Super. 435, 437, 417 A.2d 726, 728 (1979). However, parties are free to restrict that right. Fuhrman v. Doll, 305 Pa.Super. 277, 282, 451 A.2d 530 (1982). Appellants argue that appellees’ remedy of partition is precluded by paragraph 3(a) of the 1972 Trust Agreement. This paragraph provides:

(a) If any equitable and beneficial owner desires to dispose of his or her own interest, then in such event, the surviving equitable and beneficial owners, shall have the sole right to purchase such interest at the designated contribution in money of such individual, as set forth in “Exhibit A” herein.

Furthermore, appellants contend that the 1983 Settlement Agreement, at most, modified the Trust Agreement for three years to permit a possible sale of Tract 1, but did not alter the parties limited right to dispose of their beneficial interest. Thus, appellant argues that if appellees wish to sell their equitable and beneficial interests, their compensation is limited to their 1957 contribution to the Homestead Property. The record belies this argument.

The purpose of the 1983 Settlement Agreement was to untangle the web of discontent harbored by the Kasych siblings by permitting them to sever their economic ties arising from their parents’ respective estates. One of the terms of the Settlement Agreement provided for the disposition of the Homestead Property. This portion of the settlement divided the property into two tracts; conveying Tract 2 to Charles Kasych, Jr., and attempting to sell the remaining Tract 1. The Settlement Agreement also provided:

In the event the the trustees shall not have sold Tract 1 within three years following the effective date of this agreement, any individual may bring an action for partition.... Until Tract No. 1 is sold, each of the individual parties hereto shall be entitled to a one-seventh interest in the net income, if any, earned with respect to said property, and be liable for one-seventh of the expenses and a carrying charges with respect to said property. Henceforth, from the effective date of this agreement, and notwithstanding anything to the contrary contained in the aforementioned declaration of ownership and trusteeship, each of the individual parties hereto shall be deemed to own a one-seventh undivided interest in Tract No. 1.

(R. 458-59). Thus, even assuming that the Trust Agreement initially limited the parties remedies if they desired to divest their respective interests in the Homestead Property, it is clear that the 1983 Settlement Agreement expressly provided for either the sale of Tract 1, or its partition. The Settlement Agreement providing for the sale or partition of the Homestead Property did not violate the limited remedies set forth in the Trust Agreement since this agreement had unanimous trustee approval. Therefore, this case is distinguishable from the cases cited by appellant wherein there was evidence that the intent of the parties was to preclude partition. See e.g. Fuhrman v. Doll, 305 Pa.Super. 277, 451 A.2d 530 (1982) (deeds, bylaws, constitution, and the actions of the association members indicated that membership did not carry an entitlement to partition). In accordance with the expressed terms of the 1983 Settlement Agreement, appellees were entitled to partition.

After finding that partition was not precluded by the Trust Agreement, the chancellor found that partition cannot be accomplished without spoiling the whole. Since neither party disputes this determination, the method of partition must be by private sale in accordance with Pa.R.C.P. 1563. Rule 1563 provides:

Property Not Capable of Division without Prejudice. Sale. Objections.
(a) Except as otherwise provided in Subdivision (b), property not capable of division without prejudice to or spoiling the whole shall be offered for private sale confined to the parties.
(b) Parties defendant owning a majority in value of the property may object in writing to any sale, requesting that the property be awarded to them at its valuation fixed by the court and that their interests in the same remain undivided. Upon such request the entire property shall be awarded to the parties objecting to sale, as tenants in common, subject to the payment to the parties desiring partition and sale of the amounts of their respective interests based upon the valuation. The amounts due the parties shall be charged as liens upon the property, to be paid in such manner and time as the court shall direct.

After receiving evidence as to the value of Tract 1, the chancellor placed its value at $2,000,000. Appellant asserts that this $2,000,000 valuation is not supported by the record. Appellants’ expert witness, after discussing the problematic nature of developing Tract 1 for residential purposes, opined that the property was worth $1,500,000. Appellees’ expert witness gave two values for Tract 1 depending on obtaining a favorable point of access to the property. “Under a Premise No. I, which was an assumption that access to the property could be gained at a traffic light at the intersection of Municipal Drive and MacArthur Road, I estimated the value of the property with direct access from that point at $2,675,000.00. Under Premise No. II, wherein access is not guaranteed at that intersection, I arrived at an estimate of value of $1,480,-000.00.” (N.T. 3/19/90 at 36). The Chancellor, after receiving this conflicting expert testimony as to the fair market value of the property, placed the value in between the range of the expert’s estimates. After our independent review of the record, we find that there is ample evidence to support the chancellor’s determination.

The third issue raised for our review is whether Vera Kasych’s bequest of her interest in Tract 1 is valid. Appellants argue that the terms of the 1972 Trust Agreement require that upon death, a beneficiary’s interest automatically reverts to the surviving beneficial owners and that, therefore, her specific devise or appointment to Helen Buchanan is a nullity. However, the expressed provision of the Trust Agreement indicates otherwise. Paragraph 3(b) of the 1972 Trust Agreement provides for the disposition of property at death. This paragraph states:

(b) Upon the death of any equitable and beneficial owner, the share held by said deceased owner shall pass to issue, per stirpes, and if no issue, to the surviving equitable and beneficial owners, appointees- of deceased equitable and beneficial owners or issue of deceased equitable and beneficial owners, per stirpes.
Disposition by Will shall contain a specific reference therein to this power.

Thus, under Paragraph 3(b) of the Trust Agreement, if there is no surviving issue, the beneficial interest can pass to appointees of the deceased beneficial owners, if the disposition by will makes specific reference to this power. The decedent’s will does just that. On May 10, 1985, Vera Kasych executed a will which provided for a gift of her residue estate to her sister Helen Buchanan. The will provided in pertinent part:

the above gift of the residue of my estate shall include any interest I have under a certain family trust dated March 20, 1972. Although my interest therein was modified by a settlement ... from an interest as a trust beneficiary to that of an owner of a one seventh undivided interest ... for should that settlement not be given effect or if for any reason it becomes necessary to exercise the power of appointment granted to me in said family trust in order for me to pass my interest therein ... I hereby exercise the testamentary power given me under the Declaration of Ownership and Trusteeship of the Kasych Family Trust ... so as to appoint ... my sister Helen Buchanan.

(R. 442a). The decedent initially assumed that the 1983 Settlement Agreement provided her with an interest that would simply pass to her residual devisee notwithstanding the restriction as to disposition of her interest at death contained in the Trust Agreement. However, even assuming that the Settlement Agreement did not provide her with the ability to simply devise her interest, the decedent properly exercised her power of appointment provided in the Trust Agreement. Therefore, appellants’ challenge to the validity of this bequest is without merit.

Accordingly, we affirm.

      . Appellee, Helen Buchanan contributed $12,500, Mildred Kasych Cal-kins contributed $2,651, and decedent Vera Kasych contributed $2,830.42, of the total purchase price of $80,000.

      . Paragraph 4 of the Trust Agreement provided the property could not be sold in either whole or part absent unanimous trustee approval.


author: BECK, Judge:

text:
    614 A.2d 692
    COMMONWEALTH of Pennsylvania v. Braden Kent CAMPBELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1992.
    Filed Aug. 21, 1992.

      Susan M. Hill, Bloomsburg, for appellant.
    George 0. Wagner, Dist. Atty., Danville, for Com., appellee. (Submitted).
    Before BECK, JOHNSON and HUDOCK, JJ.
   BECK, Judge:

The instant appeal requires us to visit once again the dimensions of a “stop and frisk” conducted with less than probable cause and to evaluate the circumstances under which such a procedure is constitutionally permissible.

Appellant Braden Campbell was arrested along with two companions, Richard DeMatteis and Larry Bonetti, and each was charged with various counts of drug and weapons offenses. Although the cases were not joined for trial, a consolidated omnibus pretrial hearing was held on August 15, 1989, at which appellant, DeMatteis and Bonetti sought to suppress physical evidence. The trial court denied the suppression motion. Subsequently, appellant was convicted of possession of a controlled substance with intent to deliver, possession of a controlled substance, possession of drug paraphernalia, and conspiracy. Following the denial of post-verdict motions, appellant was sentenced to four to eight years on the delivery charge and six to twelve months on the remaining counts to run concurrently with the greater sentence. On appeal appellant Campbell challenges the judgment of sentence on three grounds. First, he argues that the trial court erred in denying his motion to suppress evidence. He also asserts that it was error to admit the expert opinion of a state trooper regarding the use of narcotics. Finally, appellant challenges the sufficiency of the evidence on the charges of possession with intent to deliver and conspiracy. We have thoroughly reviewed the record of the suppression hearing and the trial. We have considered the arguments made by appellant in support of his claims. We affirm.

The facts from which the instant case arose are as follows. State Trooper Steven Barilar received a frantic phone call from Rose Blue at about 7:00 AM, March 20, 1989. Blue was the owner of a self-service gas station in Valley Township, Montour County. Blue was frightened and alarmed and explained to Trooper Barilar that three “scruffy-looking” men in a brown car had pulled into her station and had pumped $10 worth of gas. Instead of paying for the gas right away, however, the men sat in their car, talking amongst themselves and looking into the service station. After several minutes of this, Blue’s dismay grew and therefore she called the state trooper barracks. Blue stayed on the line several minutes with Trooper Barilar, expressing to him her fear that the men were either going to leave without paying for their gas or rob her. Blue described the three men as unkempt and dirty-looking and she provided Barilar with the license number of the car they were driving. Barilar could tell that Blue was “very frightened”, so he told her that he was on his way, and passed the phone to another state trooper. Blue was instructed to keep talking to the second trooper while Barilar drove the short distance from the barracks to Blue’s service station.

Meanwhile, as Blue was talking to the second trooper, one of the men in the brown car came over to Blue and paid the $10.00 for the gas he had pumped. Blue told this to the trooper on the phone. She also told him that the brown car then went straight across the street to another service station. The second station was a Citgo gas station and Blue could see the brown car parked there from her vantage point across the street. Moments later, Trooper Barilar arrived at Blue’s station. Blue pointed out the brown car at the Citgo station to Barilar. Barilar also knew that the men had paid for the gas they had pumped at Blue’s station.

However, “[i]t didn’t make sense” to Barilar that “someone would go from one gas station where they got gas and then go to another gas station.” Still fearing a possible robbery, Barilar drove across the street to the Citgo station and parked behind appellant’s unoccupied brown car. At first, the only people Barilar saw were two men emerging from another vehicle at the far side of the station. The men, later identified as co-defendant Richard DeMatteis and another man named James Meredith, approached Barilar.

Meredith did the talking. He appeared “very agitated” and Barilar was left with the impression that Meredith “wanted [Barilar] away from there.” The trooper inquired about the brown car and its occupants, who were not in sight, and Meredith said that they were customers of his and that the trooper didn’t have to stay. Although Meredith told Barilar that he was the manager of the station, Barilar stated that in his mind, Meredith’s manner of dress belied the contention. Meredith was wearing a leather jacket, leather boots and blue jeans. Barilar testified that Meredith was “scurfy-looking” [sic] and “looked to [him] as one of those described as the three type individuals as Mrs. Blue stated”. Further, Barilar noted that he had been to that service station before but did not recognize Meredith as one of -its employees.

Despite Trooper Barilar’s repeated request to Meredith to identify the driver of the brown car, Meredith declined. After the trooper made the request three or four times, co-defendant DeMatteis went inside the service station and came out with appellant, who identified himself as the driver of the car. As soon as appellant approached the trooper, Barilar could see that he was concealing something underneath the leather jacket he was wearing.

Barilar asked appellant to produce a driver’s license and owner’s card. Appellant complied and the documents indicated that although he was the driver, he was not the owner of the vehicle. Meanwhile, as appellant and the trooper talked, appellant “kept his hand over an object which was under his jacket”. The trooper described the bulge as being right in the center front of the jacket and about the size of a loaf of bread. Barilar asked appellant what he had under the jacket and appellant stated that there was “nothing”.

Immediately on the heels of appellant’s patently false response, an audible burglar alarm went off. As soon as the trooper heard the bells start ringing he put his hand on his service revolver and reached with the other hand to feel whatever it was under appellant’s jacket. The trooper felt something there, unzipped the jacket, and saw a black nylon bag under the jacket. Fearing that appellant was concealing a weapon in the bag and believing that a robbery was either in progress or had just occurred, Barilar unzipped the nylon bag. Inside was a towel and a bag containing a white powder, which was later determined to be cocaine. The package of cocaine fell to the ground and Trooper Barilar drew his gun.

At some point, during this part of the incident, Meredith emerged from the service station and stated that he had accidentally tripped the alarm. Whether this happened before or after Trooper Barilar unzipped the black nylon under appellant’s jacket is unclear from the record. Barilar first stated that Meredith came out of the station after he had unzipped the bag. Later, the testimony was that Meredith’s explanation came just before the bag was unzipped. The trial court made no finding of fact regarding Meredith’s statement about the alarm, presumably because the timing of the remark was unclear from the testimony. Trooper Barilar indicated that, in any event, he did not know who Meredith was and his testimony implied that he would not have put stock in the attempted reassurance. Moreover, as the following discussion of the issue demonstrates, the timing of Meredith’s remark is not dispositive of the propriety of Barilar’s actions. Just after the package of cocaine fell from appellant’s bag, the third co-defendant Larry Bonetti, came toward Trooper Barilar. Barilar ordered all the men to place their hands on the car’s hood, radioed for assistance and conducted a pat-down search of DeMatteis, Campbell and Bonetti. The frisk of DeMatteis yielded a golf-ball sized rocklike object which was found to be cocaine and an elongated pipe type object in the same pocket. Bonetti was armed with a .357 Magnum weapon and also had a small amount of cocaine on him. The search of appellant revealed nothing more than had already been discovered in the zippered bag. In a subsequent search of the car, the police seized a number of lighters, butane lighter fuel, a stainless steel cup, a bowl, a torch, wire, several pill containers, pieces of scouring pad, and a small scale. Meredith was not searched nor was he detained.

Appellant, DeMatteis and Bonetti were arrested and advised of their rights against self-incrimination. Later the men made incriminating statements indicating their involvement in a drug deal. Specifically, appellant gave a statement to Trooper Gregory Hall in which he described how the three men drove to Montour County from the western part of the state, pooled their resources and purchased a $10,000.00 supply of cocaine from James Meredith at the Citgo station.

Appellant was tried separately and convicted of possession of cocaine with intent to deliver, possession of cocaine, possession of drug paraphernalia, and criminal conspiracy. On appeal, appellant’s principal challenge goes to the trial court’s denial of the motion to suppress evidence. His argument is premised on the contention that at the time the cocaine was uncovered by Trooper Barilar, the officer had no constitutionally recognized justification to stop appellant or to frisk him. In light of the appropriate standards, we disagree.

In challenges to the rulings of a suppression court, our standard of review is well defined and narrow. We are limited to determining whether the factual findings of the lower court are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Rodgers, 413 Pa.Super. 498, 517, 605 A.2d 1228, 1237 (1992).

In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Chiesa, 329 Pa.Super. 401, 404, 478 A.2d 850, 851 (1984).

Stops, frisks and “pat-downs” on less than probable cause have long been recognized as constitutional. The classic formulation comes from the Supreme Court’s first treatment of the issue in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Court held that:

[Wjhere 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, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, 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 in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Terry v. Ohio, 392 U.S. at 30-31, 88 S.Ct. at 1884-1885, 20 L.Ed.2d at 911.

In the twenty-four years since Terry was decided, courts have sought to delineate the proper boundaries of police conduct undertaken on the basis of reasonable suspicion that criminal activity is afoot. Most recently, the Supreme Court has explained that: “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is, different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990).

Many of the problems which arise in analyzing the legitimacy of police conduct are traceable to the circumstances in which these encounters between police and citizens arise. Such incidents unfold quickly and in an environment which requires prompt action by police to avert potential danger to themselves and others. Courts struggle to strike a balance between the considerable peril which might result from hesitation on the part of the police and the unquestionable right of our citizens to go about their business free from harassment and undue government interference. See Commonwealth v. Daniels, 280 Pa.Super. 278, 284, 421 A.2d 721, 724-725 (1980). In striking this balance, we are repeatedly admonished to take into account “the totality of the circumstances — the whole picture.” See, e.g., United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). This court recently had occasion to emphasize just this point. When deciding whether reasonable suspicion of criminal activity was present, we stressed that “it is incumbent upon us to recognize and account for the fluid nature of events as they were perceived by the officers at the time.” Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1095, (1992). In Epps, we held that a broken vent window alone provided an experienced police officer with sufficient constitutional justification to stop a car. Epps underscored the often unique ability of experienced police officers to draw inferences and deductions which untrained persons might not be able to make. The officer’s testimony in Epps was that his experience taught him that unlawful entry into automobiles was routinely gained by breaking the smaller, more discreet vent windows instead of the larger, more conspicuous ones. This experience informed the officer’s actions, reasonably allowing him to suspect criminal activity and justifying the actions he took pursuant to those suspicions. This court refused to ignore the experience of the officers and the realities of the criminal world and noted further that no delay in investigation would have been forgiven, under the circumstances. It is with the same degree of realism that we approach the instant case.

Appellant invites us to discount entirely the rapid, suspicious and volatile nature of events as seen and understood by Trooper Barilar. A highly agitated and frightened gas station attendant called Barilar to report her suspicions about a group of men assembled in a car at her station. Reacting to her fright, Barilar got in his patrol car and quickly traveled the distance to the station in twelve minutes. Meanwhile, although the occupants had paid for their gas at the first station, they went across the street to another gas station, which struck Barilar as odd. Still nervous about the group Barilar followed them there. When he first saw Meredith and DeMatteis coming towards him, Barilar took them for two of the three occupants of the original car. Appellant argues that even at this stage, he and his companions were “seized” because the trooper had parked his car behind theirs. This argument is totally meritless. The car at the time was unoccupied and there was no evidence from which it was reasonable to infer that, had Barilar found everything to be in order, Barilar would have done anything except go on his way and allow appellant and his friends to do the same. When Barilar first pulled into the station he had not seized appellant and his companions by parking behind their empty car.

Furthermore, we do not need to speculate about what was going through Trooper Barilar’s mind and whether the deductions he drew were reasonable in light of evolving events. Barilar testified specifically and repeatedly at the hearing regarding the situation as he perceived it and the record supports the variety of facts which underlay his suspicions. Barilar stated that he did not recognize Meredith nor did he believe that he managed the station from the way Meredith was dressed. In fact, Barilar thought that Meredith and DeMatteis were two of the three suspicious individuals who had aroused the fears of Mrs. Blue. When Campbell emerged from the station, Barilar thought he had before him all three individuals seen by Blue.

Meanwhile, when appellant approached Barilar he was obviously hiding something under his jacket, although when questioned he stated that the bulge was “nothing.” Barilar knew by the size of the bulge that he was not seeing a part of appellant’s anatomy. He also knew that it was not “nothing”, as appellant maintained. The situation turned still more urgent when the burglar alarm sounded. Barilar’s immediate assessment of the situation given: 1) Blue’s suspicions; 2) the men’s appearance; 3) the fact that they traveled to a second gas station despite having just purchased gas; 4) Meredith’s apparent interest in “getting rid” of the policeman; 5) appellant’s concealment of something under his jacket; 6) the absence of any uniformed attendant or anyone who did not seem to be with this group; and finally 7) the sounding of burglar alarm, was that “a robbery had occurred and these people in front of [him] were the ones who did it. [He] was afraid that the owner was either gagged in the back or had been shot.”

It was this situation based upon these coalescing factors which caused Barilar to thrust his hand against appellant’s jacket, confirming what, of course, he already knew, i.e. that appellant had lied when he said “nothing” was under there. With the burglar alarm still sounding, alone with three men he, at the time, reasonably suspected of robbery, Trooper Barilar acted to protect himself. He unzipped appellant’s jacket and revealed the black nylon bag concealed there. Seeing that the bag was large enough to hold a gun and unable to determine whether, in fact, the bag contained one, Trooper Barilar unzipped the bag. We hold that under the totality of the circumstances, Barilar’s actions were lawful. Once the cocaine fell to the ground, probable cause existed for appellant’s arrest and appellant does not contend otherwise. Appellant argues that Bardar had no reason to search the bag because it was clear that no burglary was in progress and because he could have ascertained the contents of the bag some other way. We reject appellant’s attempt to have this court second-guess the officer’s actions and reassess the situation through the remote and disinterested perspective of a cold transcript. Instead we endeavor to view the circumstances through the eyes of the officer in order to determine the reasonableness of his conduct, which is, after all, the “essence” of the constitutional command. Commonwealth v. White, 358 Pa.Super. 120, 127, 516 A.2d 1211, 1215 (1986) (“The essence of state and federal constitutional provisions as to search and seizure is reasonableness. ... A policeman who lacks the precise level of information necessary for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape.”).

Further, appellant bases his argument that “no burglary was in progress” on the statement supposedly made by Meredith before the bag was unzipped that he had accidentally tripped the alarm. He argues that Barilar had no justification to frisk appellant since Meredith’s remark should have reassured him and dispelled his fears. However, Barilar’s express testimony was that he did not accept Meredith’s explanation nor did he know who Meredith was. Under the circumstances confronting Barilar, this judgment was reasonable, and we hold that Barilar could act to protect himself and attempt to disarm the seeming burglars. The fact that the men were not actually engaged in a burglary but instead were transacting a narcotics deal is wholly irrelevant to the reasonableness of Barilar’s conduct when he frisked appellant. Therefore we hold that the trial court did not err in admitting the cocaine retrieved from appellant’s bag.

Appellant’s next argument on appeal is that the trial court erred in permitting another trooper, Howard Howal, to testify at trial that in his expert opinion the amount of cocaine found on appellant was not consistent with personal use. There is no merit to appellant’s argument. At trial, Howal testified that he had been a narcotics investigator for over seven years. He had been involved in narcotics transactions and with confidential informants. He was familiar with the prices of drags and with the manner of operation of the narcotics trade. Howal explained the typical use and “dosage” of cocaine. He testified further regarding the use to which the seized drag paraphernalia would be put by drag distributors and users. Howal explained that, in all his years of narcotics trade investigation, he had never seen a pound of cocaine for personal use because it is “an extremely large amount.” This testimony was elicited on the heels of lengthy explanations of the manner in which cocaine was consumed and sold. Howal clearly acquired his expertise through experience and occupational exposure to the drag trade. See Commonwealth v. Daniels, supra, 280 Pa.Super. at 286, 421 A.2d at 726. Appellant argues that Howal failed to state his opinion that the drugs were not for personal use with the requisite degree of certainty. However, we note that Howal’s conclusion was unequivocally based on his experience that he had “never” seen such a large amount of cocaine used for personal consumption. Given this statement, we conclude, as did the trial court, that the expert stated his opinion with the requisite degree of certainty. The gist of appellant’s argument appears to be that the fact-finder should not have credited Howal’s opinion that the cocaine was not for personal use because there was testimony controverting the Commonwealth’s theory. However, this argument was properly presented to the jury which rejected it. Appellant’s argument that Howal’s opinion should have been excluded must fail.

Finally, appellant argues that the evidence was insufficient to sustain the conviction of possession with intent to deliver. The standard by which this claim must be judged is settled. We view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and all reasonable inferences therefrom, which, if believed, could properly support the verdict. Commonwealth v. Hughes, 521 Pa. 428, 427, 555 A.2d 1264, 1267 (1989). In order to uphold appellant’s conviction for possession of cocaine with intent to deliver, the Commonwealth must come forward with proof that appellant possessed a controlled substance, and did so with intent to deliver it. Commonwealth v. Cardona, 316 Pa.Super. 381, 387, 463 A.2d 11, 15 (1983). The intent to deliver may be inferred from an examination of all the facts and circumstances surrounding the case. Commonwealth v. Robinson, 399 Pa.Super. 199, 204, 582 A.2d 14, 17 (1990).

In the instant case, appellant and his co-conspirators admittedly traveled half-way across the state of Pennsylvania, pooled their resources and purchased a pound of cocaine for $10,000.00. According to the testimony at trial, the same pound of cocaine has a street value of $40,000.00. As a result of many years in drug enforcement and having had the experience of hundreds of “buys”, Trooper Howal explained that drugs for personal use were ordinarily dispensed in much smaller quantities, principally grams, eighth ounces or quarter ounces. Howal also testified to the typical use of cocaine. Also, as noted above, Howal stated that the amount of cocaine seized from appellant was “extremely large” and he had never seen such an amount purchased for purely personal consumption. Appellant argues, however, that little in the way of drug trafficking paraphernalia was seized from appellant’s car. In fact, he notes that most of the drug paraphernalia seized were items consistent with personal consumption.

Appellant’s argument falters because there is no requirement, of course, that the Commonwealth exclude all possibilities consistent with innocence or that the expert be able to categorically rule out the possibility of possession for personal use. As appellant concedes, and as the trial court notes, the sheer quantity of the drugs in his possession support the inference of an intent to deliver. See Commonwealth v. Brown, 232 Pa.Super. 463, 335 A.2d 782 (1975); Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975). The cases cited by appellant to refute this inference involved far smaller amounts of drugs and do not control. Moreover, the expert here testified that the drugs were, in his experience, retained for resale. In our view there was ample evidence from which the jury could conclude that appellant possessed the cocaine with intent to deliver.

Judgment of sentence affirmed.

      . Barilar explained that the bulge in the stomach area was not consistent with the rest of appellant’s physique or his facial features.

      . Barilar stated that the size of the bulge was about that of a loaf of bread. When asked in cross-examination whether it could have been a loaf of bread, Barilar said that it was "a possibility”. He added: “Well, if it was a loaf of bread, he would have said he had a loaf of bread under his jacket.”