author: HESTER, Judge:

text:
    651 A.2d 167
    In re J.S.W. Appeal of J.S.W., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed Dec. 20, 1994.

      Leslie M. Gerstein, Philadelphia, for appellant.
    Jay H. Ginsburg, Norristown, for S.W., participating party.
    Judith Doherty, Wynnewood, for F.W., participating party.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

J.S.W., through her guardian ad litem, appeals from the order dated October 19, 1993, which denied the motion of the Department of Human Services (“D.H.S.”) requesting a change in the goal of the family service plan from reunification to adoption. We reverse.

J.S.W. was born July 4, 1989, into a family which had been involved with D.H.S. since 1987. D.H.S. had received a complaint that Francine W., J.S.W.’s mother, and her husband, Steven W., were on drugs and were neglecting their four children. The four children were removed from the home and remained in voluntary placement outside the home from March, 1988, until April, 1989. Two months after the children returned to the home, J.S.W. was born.

On September 1, 1989, J.S.W., who was born with a cleft palate and required feeding through a gastric feeding tube, was admitted to the hospital for failure to thrive. Francine W. refused to participate in training in the use of the tube. Notes of Testimony (“N.T.”), 10/19/93, at 64. Since the parents never visited the child and were involved with drugs, D.H.S. sought a restraining order to place J.S.W. in foster care. During this time, the other children in the family began residing with the maternal grandmother, as Francine and Steven still were using drugs and were transient. The family service plan then in effect offered a number of services including social work services to the children in their own home, drug and alcohol programs, psychiatric counseling, and parenting classes. The goal at that time was reunification of the family.

In March, 1991, J.S.W.’s siblings were returned to the custody of Francine and Steven, and J.S.W. was returned in January, 1992. On July 24, 1992, J.S.W., who was three years old, was rushed to St. Christopher’s Hospital with second and third degree burns over sixty percent of her body. Francine had immersed J.S.W. in scalding water and subsequently pled guilty to aggravated assault and endangering the welfare of a child. She was sentenced to ten years probation, the terms of which mandated that she attend a drug and alcohol program, agree to undergo a psychiatric evaluation, submit to random drug testing, attend parenting classes, and cooperate with D.H.S. A protective restraining order also was entered by the sentencing court mandating that Francine refrain from contact with J.S.W. That order remains in effect to this day.

J.S.W. remained at St. Christopher’s Hospital two months, until September, 1992, when she was transferred to Children’s Rehabilitation Hospital. On December 18, 1992, J.S.W. was adjudicated dependant and committed to D.H.S., retroactive to November 24, 1992. J.S.W. began residing with her present foster parents at that time. The family service plan in effect listed reunification as the goal. Although Francine was prohibited from seeing J.S.W., a restraining order, which had been entered against Steven, was lifted in December, 1992.

As of July, 1993, neither Francine or Steven were in compliance "with the family service plan. Francine failed two random drug tests. Id. at 65. While the terms of Francine’s probation required her to begin drug treatment in September, 1992, she did not begin such a program until March, 1993. She did not begin counseling until May, 1993. Once the restraining order was lifted for Steven in December, 1992, bi-weekly visits were scheduled for Steven and J.S.W.’s siblings. Steven initially refused to allow the siblings to visit, and he appeared for only one visit between December, 1992, and June, 1993.

In June, 1993, Catholic Social Services (“C.S.S.”), the agency with whom J.S.W. was placed, held an individual service plan meeting to review J.S.W.’s placement. Jennifer Mansfield, the social worker for C.S.S., testified that Francine told her it may be best for J.S.W., Francine, and the rest of the family if J.S.W. did not return home. Id. at 38. Mansfield testified that Steven testified that there was no reason to allow the other children to visit J.S.W. if she was not going to come home. Moreover, Francine was concerned about enduring embarrassment if her other children discussed the child abuse she perpetrated on J.S.W. with the’ neighborhood children. Id.

Based upon Francine’s and Steven’s history of noncompliance with the family service plans and the sentiments expressed at the June, 1993 meeting, D.H.S. scheduled a meeting for July, 1993, to change the goal from reunification to adoption. Sheila Dickens, a D.H.S. social worker, testified that Francine called and said she would not attend the meeting because it was raining. Id. at 17. She further stated that Francine said that she “didn’t want to have anything to do with the child in any way, that she was concerned that the child would be afraid of her, and she didn’t know whether the child was going to fit in her family system.” Id. at 18. Steven told Ms. Dickens “that if the child wasn’t going to be in his family, he saw no reason to come to the meeting.” Id.

On October 1, 1993, D.H.S. filed a motion for a goal change from reunification to adoption. A contested goal change hearing was held on October 19, 1993, wherein the court received testimony from the D.H.S. and C.S.S. social workers, the foster mother, and both Francine and Steven W. At the conclusion of the testimony, Francine and Steven agreed to take a drug test; Francine’s was negative, while Steven’s was positive for TCH. Id. at 70-71. The hearing court entered an order maintaining the child’s foster care status but denying the goal change to adoption. Thereafter, the guardian ad litem filed a motion for reconsideration which was denied on October 29, 1993. This appeal followed.

In this appeal, the guardian ad litem assails the court’s decision denying the goal change to adoption, alleging that the court failed to apply the best interest of the child standard and that the court’s decision is not supported by the record. Thus, the decision adjudicating J.S.W. a dependent child is not under review herein. Once a child is adjudicated dependent, the issues of custody and continuation of foster care are determined according to a child’s best interests. In the Interest of Sweeney, 393 Pa.Super. 437, 574 A.2d 690 (1990).

We consider whether it is indeed in J.S.W.’s best interest to continue in placement with a goal of reunification and whether such a conclusion is supported by the record. We examined the significance and interaction of the family service plan and designated goal established for a dependent child in In re Interest of M.B., 388 Pa.Super. 381, 386-87, 565 A.2d 804, 807 (1989), where we stated:

[T]he importance of the service plan and the goal it identifies for the child involved cannot be overemphasized. As we recently noted in an article appearing in the Children’s Rights Chronicle, produced by the Juvenile Law Center:
... the family service plan is the key to the dependency process. It provides a social work tool which spells out a goal and everyone’s tasks in reaching toward that goal. All parties to the plan should participate in its formation so that they understand the problems facing the family and also understand what is expected of them to remedy those problems.
By documenting what the parents, agency and other players in the process need to do, the FSP [the plan] is also legally valuable when efforts fail to reunify a family.... the lawyers should elicit testimony so that the court sees a parent’s performance in reference to the guidelines spelled out through the FSP tasks. The court can thus determine when efforts toward reunification have been made but because of repeated lack of cooperation or failure, the necessary tasks cannot be performed and the goal should be abandoned.
Remarks of Sam Magdovitz of Juvenile Law Center, reprinted in Children’s Rights Chronicle, Volume Six, No. 3, at 1 (1987-88).

See also Matter of Luis R., 430 Pa.Super. 518, 635 A.2d 170 (1993).

The hearing court thoroughly and extensively examined the testimony in this case, and for this it is to be lauded. However, our review of the record reveals that certain actions and inactions on the part of Francine and Steven have been misrepresented and that improper conclusions have been drawn from the evidence. While the hearing court acknowledged that it is required to focus and evaluate the best interests of J.S.W., the court’s opinion in support of its order, instead, focuses on the best interests of Francine and Steven. To be sure, there are no winners in this case; everyone, from the parents to the siblings, will suffer and be affected adversely by the outrageous and heinous acts of Francine.

However, only the best interests of J.S.W. are to be considered herein. As an example of the trial court’s misplaced focus, we note the hearing court’s expressions of sympathy concerning the reference at the hearing to the fact that Steven is not the natural father of J.S.W. The hearing court assumed that Steven had never been told this fact, a conclusion that is not supported by the record. In fact, based upon the testimony of Sheila Dickens, the social worker for D.H.S., the paternity of J.S.W. obviously had been a matter under discussion before the hearing. N.T., 10/19/93, at 8. More importantly, however, the hearing court states that it “would be unfair to” Steven “to fail to provide him with an opportunity to verify” his paternity, and somehow, the court’s denial of the goal change to adoption will enable Steven to accomplish this. Hearing Court Opinion, 3/25/94, at 12.

Regardless of whether Steven is the child’s father or not, we believe the record supports the conclusion that Francine and Steven have demonstrated “too little, too late.” Matter of Luis R., supra, 430 Pa.Super. at 525, 635 A.2d at 173. D.H.S. provided these parents countless opportunities to remedy the factors preventing their reunification with J.S.W. Until the time of D.H.S.’s announcement that it would seek a goal change to adoption, Francine maintained that she did not want J.S.W. returned to her family. N.T., 10/19/93, at 17-18. She violated her probation twice by failing two random drug tests. Id. at 65. Steven, who was permitted to visit J.S.W. as of February, 1993, visited once between February and June 30, 1993. Id. at 30-31. While he visited more regularly after that, we note that those visits did not begin until Francine and Steven learned of D.H.S.’s intent to request a goal change to adoption. The following statement in In re E.F.V., 315 Pa.Super. 246, 253-54, 461 A.2d 1263, 1267 (1983), applies herein:

[T]he supporting children’s agencies of the county have devoted two years of effort to rehabilitate the natural parents to the point where it would be safe to return [their child] to their custody. The natural parents have given a minimum of cooperation to these efforts, and have made little or no progress in correcting their deficiencies.

While Francine and Steven protested at the hearing that they were ready to change their ways, their actions speak more clearly and much louder than their words. We cite, for example, the drug test performed on the day of the hearing in which Steven tested positive for TCH. N.T., 10/19/93, at 65.

Notwithstanding the hearing court’s sympathies for the natural parents, the focus of this case must center on the parents’ efforts in complying with the family service plans. Clearly, the record is replete with examples demonstrating the inability or refusal of the parents to comply with the plans until D.H.S. announced its intention to seek a goal change. In light of the parents’ failed efforts, especially Francine’s two failed drug tests, the hearing court should have directed a permanency plan excluding J.S.W.’s natural parents. We stated in In Interest of Sweeney, supra, 393 Pa.Super. at 443, 574 A.2d at 692-93, quoting In re Quick, 384 Pa.Super. 412, 422 n. 2, 559 A.2d 42, 47 n. 2 (1989):

Permanency Planning is a concept whereby children are not relegated to the limbo of spending their childhood in foster homes, but instead, dedicated effort is made by the court and the children’s agency to rehabilitate and unite the family in a reasonable time, and failing in this, to free the child for adoption.

Francine blithely asserts in her brief that “there is no clock” running in this case, and that she “does not anticipate being permitted by any court to see her daughter, perhaps for several years.” Francine’s brief at 2, 3. To allow J.S.W. to languish in foster care, in light of the opportunities already afforded Francine and Steven over the past two years to comply with the family service plans, is directly contrary to applicable law. See In re E.F.V., supra. As we believe the decision of the hearing court is not supported by the record, we are constrained' to reverse.

We also express our reservations about the trial court’s undue reliance upon one of the stated purposes of the Juvenile Act, the preservation of the family. While deference must be given to this laudatory goal, deference should not become rigid adherence to the principle regardless of the circumstances; otherwise, adoption will never be an option régardless of the family situation and the best interests of the child. It is not suitable to continue to attempt to reunite J.S.W. with a family where the mother has stated that she does not want J.S.W. and where the father has taken no appropriate measures to demonstrate an interest in her. Further, while we concur with the trial court’s observation that the bond of family love will enable most parents to provide their children with better care than anybody else, the evidence presented in this case clearly demonstrates that Francine and Steven W. are not better equipped to care for J.S.W. Indeed, the record reveals that neither Francine nor Steven stated that they love J.S.W., even though Francine testified that J.S.W.’s siblings and grandmother love her. N.T., 10/19/93, at 63.

Order reversed; Matter remanded to Court of Common Pleas of Philadelphia County to enter order consistent with this Memorandum. Jurisdiction relinquished.

      . Steven W. apparently is not the natural father of J.S.W. Notes of Testimony ("N.T.”), 10/19/93, at 65. However, as Steven is the child’s father of record in this case, we will refer to him as such in this appeal.

      . J.S.W. and another sibling were born subsequently.

      . In addition to immersing her child in scalding water, Francine allegedly locked her three-year-old in a closet and forced her to eat her feces. N.T., 10/19/93, at 29.


source: Caselaw Access Project

author: WIEAND, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    651 A.2d 171
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas CARROLL, Appellee.
    Superior Court of Pennsylvania.
    Argued March 29, 1994.
    Filed Nov. 3, 1994.
    Reargument Denied Jan. 11, 1995.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Thomas Carroll was tried non-jury and was found guilty of possession of a controlled substance, i.e., heroin, and possession thereof with intent to deliver. Post-trial motions were denied, and Carroll was sentenced to serve a term of imprisonment for not less than five (5) months nor more than twelve (12) months, plus a concurrent period of probation for sixty (60) months. A petition by the Commonwealth to reconsider the sentence was denied, and this appeal followed. The Commonwealth contends that the sentencing court erred by refusing to impose the mandatory sentence of imprisonment required by 18 Pa.C.S. § 7508(a)(2)®. After careful review, we find no error; and, therefore, we affirm the judgment of sentence.

On September 13, 1991, Philadelphia police observed a vehicle which was parked partially on the sidewalk on North Darien Street. When they stopped to investigate, they saw Carroll throw a brown paper bag from the front window on the passenger’s side of the vehicle. They retrieved the bag and found that it contained seventy-nine glassine packets, later determined to contain heroin. A search of Carroll’s person uncovered two additional packets of heroin in his wallet. The total amount of heroin recovered was 2.7 grams.

At trial, the Commonwealth offered the testimony of the arresting officers and an expert witness who said that the quantity and packaging of the heroin were consistent with possession for the purpose of distributing it to others. The trial court made a general finding that Carroll was guilty of both possession and possession with intent to deliver heroin. There was neither evidence nor a request for a finding regarding the amount of heroin possessed for personal use and the amount intended to be delivered.

At the sentencing hearing, evidence was presented that Carroll had a twenty-five year history of heroin abuse and that he used approximately forty ($40) dollars worth of heroin per day. Also admitted into evidence without objection were a pre-sentence report and the results of a mental health examination. These disclosed that in 1991 Carroll was addicted to both heroin and cocaine and was using heroin twice a day. The sentencing court found from a preponderance of the evidence that less than 2.0 grams of heroin had been intended for delivery to others and that the remainder had been possessed for personal use. Because the amount intended for delivery was less than 2.0 grams, the court did not impose the mandatory minimum sentence specified in 18 Pa.C.S. § 7508(a)(2)®.

The Commonwealth appealed. It argues that 18 Pa. C.S. § 7508(a)(2)® requires the court to impose a minimum sentence of two years and a fíne of at least $5,000 because appellee was convicted for possession with intent to deliver and because the weight of the heroin found in appellee’s possession was greater than 2.0 grams.

Heroin is a schedule I controlled substance. The statute provides with respect thereto that

(2) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is classified in Schedule I or Schedule II under section 4 of that act and is a narcotic drug shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(i) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; two years in prison and a fine of $5,000....

18 Pa.C.S. § 7508(a)(2)®.

Where a minimum sentence is statutorily mandated, a sentencing court lacks the authority to impose a sentence less severe than dictated by the legislature. Commonwealth v. Green, 406 Pa.Super. 120, 123, 593 A.2d 899, 900 (1991). Moreover, a sentencing court may not reassess the facts upon which it previously relied to establish guilt. Commonwealth v. Jones, 413 Pa.Super. 482, 487, 605 A.2d 825, 828 (1992), allocatur denied, 531 Pa. 652, 613 A.2d 557 (1992). However, before imposing a mandatory minimum sentence, a sentencing court must determine whether the offense for which the defendant was convicted falls within the parameters of the sentencing scheme. This requires a separate determination by the sentencing court. At 18 Pa.C.S. § 7508(b), the legislature established that the provisions of the mandatory sentence section

shall not be an element of the crime.... The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

In the instant case, additional evidence was offered at the sentencing hearing, and from this evidence the court determined that the amount of heroin in Carroll’s possession which was intended for delivery to others was less than 2.0 grams. By a preponderance of the evidence, therefore, the court found that the statutory section imposing a mandatory sentence was inapplicable. A review of the record leaves no doubt that the finding of the sentencing court is supported by the evidence.

The decision of a panel of the Superior Court in Commonwealth v. Mayes, 436 Pa.Super. 1, 647 A.2d 212 (1994), does not compel a different result. In that case, the defendant had been charged with possession and possession with intent to deliver cocaine in the amount of 2.34 grams. After a non-jury trial, the trial court entered a general verdict in which it found the defendant guilty on both counts. Subsequently, the defense requested an opportunity to present evidence as to the amount of cocaine which had been intended to satisfy the defendant’s own drug habit. Although the trial court granted the request, no such evidence was presented. At sentencing the defense argued that the mandatory minimum sentence under 18 Pa.C.S. § 7508(a)(3)(i) did not apply because of trial testimony that the defendant had been seen using drugs over three years prior to his arrest. No evidence was presented, however, as to the extent or nature of the defendant’s drug habit at the time of his arrest. Despite the lack of evidence regarding cocaine use by the defendant, the trial court held that some of the narcotics had been for the defendant’s personal use and that, therefore, the mandatory sentence did not apply. On appeal, the Superior Court vacated the sentence and remanded for a sentence which conformed to the mandatory minimum. The Court said:

[T]here was no evidence introduced showing that appellee was a crack cocaine user at the time of his arrest, and, there was no evidence introduced showing appellee’s average usage during a given time period: The trial court simply had no basis for concluding that appellee did not possess with intent to deliver 2.34 grams since the uncontroverted evidence adduced at the trial and at the sentencing hearing showed that amount to have been possessed by appellee when he was arrested, appellee was convicted of that crime, and, appellee did not demonstrate, at any phase of his trial (during the trial itself or at his sentencing hearing), that any portion of the 2.3k grams was for his personal use. As mentioned, supra, appellee would have had to demonstrate at trial, and the trial court would have had to have determined prior to a finding of guilt of possession with intent to deliver, that a specific portion of the crack cocaine was intended for appellee’s personal use. The trial court could have determined, after hearing evidence presented by appellee, that a certain number of the [narcotics] ... were intended for his personal use.

Id. at 8 n. 11, 647 A.2d at 216 n. 11 (emphasis added). Because no evidence had been presented, either at trial or at the time of sentencing, to establish that the defendant had intended to use any portion of the cocaine to satisfy his own habit, the Court held that the mandatory minimum sentence must be applied.

In the case sub judice, there was nothing in the evidence at trial or in the findings of the trial court which determined the amount of heroin which Carroll had intended for personal use. Therefore, the sentencing court received additional evidence to assist it in determining whether a mandatory minimum sentence should apply. This was not merely proper; it was mandated by statute. In addition to evidence that Carroll used forty dollars worth of heroin per day, the evidence was that he was severely underweight, in poor health and had been admitted to the Veteran’s Administration Hospital in Coatesville for treatment as an addict. Indeed, the sentencing court observed that appellee’s habit was such that he readily could have consumed himself all of the heroin found in his possession.

This is not a case in which the trial court has reconsidered its verdict or reassessed the evidence. See: Commonwealth v. Jones, supra. Appellee’s conviction for possession with intent to deliver has not been altered. Pursuant to 18 Pa.C.S. § 7508(b), however, it was appropriate for the trial court to determine at sentencing whether the amount of narcotics which appellee intended for delivery equalled or exceeded that which made applicable the mandatory sentence provision of the statute. In following the statute and making a factual determination according to a preponderance of the evidence, the court did not err.

The judgment of sentence is affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring.

The defendant in Commonwealth v. Jones, 413 Pa.Super. 482, 605 A.2d 825, alloc. denied, 531 Pa. 652, 613 A.2d 557 (1992), like Thomas Carroll, was convicted of both possession of a controlled substance and possession with intent to deliver. The subsequent facts of Jones differ significantly from those of the instant case, however. The trial court in Jones decided after conviction to alter its factual findings, declaring that some of the drugs had not actually been possessed. In the instant ease, the trial court made additional findings of fact during the sentencing phase.

We declared in Jones that when applying the mandatory sentencing guidelines to the crime of possession with intent to deliver, the sentencing court need only consider the quantity of drugs possessed. Id. at 485, 605 A.2d at 827. Because this rule of law may appear to conflict with the rule ordered by the Court today, I write separately only to note that the rule in Jones applies to a factual situation much different than the one we consider today.

      . See: The Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P.L. 233, § 13, (a)(16) and (a)(30), as amended, 35 P.S. § 780-113(a)(16) & (a)(30).

      . The averments of the information were also general and did not refer to the amount of heroin which Carroll had in his possession.

      . He also used twenty dollars worth of cocaine each day.


author: CIRILLO, Judge:

text:
    651 A.2d 174
    In the Interests of S.S. D.O.B. 4/26/88. Appeal of STEVEN S. and Lori S., Natural Parents.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Dec. 14, 1994.

      Walter A. Wisz, Johnstown, for appellant.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

Steven and Lori S. appeal from an order entered in the Court of Common Pleas of Cambria County placing their daughter, S.S., in foster care. We vacate and remand.

On November 20, 1990, a temporary order was issued removing S.S., born April 26, 1988, from the care and custody of her natural parents (Mr. and Mrs. S.). An adjudication and disposition hearing was held, whereby S.S. was found to be dependent. She was subsequently placed in the care and custody of appellee, Cambria County Children and Youth Services (CYS). On March 1, 1992, S.S. was placed with her paternal grandparents under CYS’s supervision. Several months later, however, S.S. was removed from her grandparents’ care and again placed in foster care. In furtherance of CYS’s goal to reunite S.S. with her family, S.S. was ordered to undergo counseling, which began in October, 1992. The counseling continued for one and one-half years. During this time period, intermittent review hearings were held, resulting in continued dependency and foster care.

On May 26,1993, another review hearing was held, this time to determine whether the goal of adoption would be a better alternative for S.S. S.S.’s therapist, Barbara Townley, testified that S.S. was suffering from an attachment disorder, and that she needed permanency and stability in her life. While Ms. Townley’s basic assessment was a need for permanence, she had no personal knowledge of who was best suited to provide that permanence. The marriage/family counselor for Mr. and Mrs. S., Theresa Horner, also testified. In her opinion, there was little hope of facilitating reunification of the family. Additionally, Amy Barzdo, a CYS caseworker, conceded that Mr. and Mrs. S. attended their scheduled visits with S.S., that they had established a clean, orderly residence, and that there had been no evidence of physical neglect or domestic violence since S.S.’s initial placement. Following this hearing, on May 26, 1993, the trial court found S.S. dependent, but ordered CYS to begin the process of returning her to her natural parents. Included in the order was a provision that a “[rjeview [was] to be held within six months if necessary.” 5.5. was returned to her parents two days after the order was issued.

A few months later, Mr. and Mrs. S. were informed that a review hearing was scheduled for September 8,1993, just over three months after the May 26th hearing/order. At the outset of the September 8th hearing, counsel for Mr. S. requested a continuance until the expiration of the six month period cited in the May 26th order. The motion was denied and the hearing proceeded. Ms. Barzdo, S.S.’s CYS caseworker, and Ms. Townley, S.S.’s therapist, were the only two witnesses to testify at this hearing. Ms. Barzdo visited S.S.’s home (most visits were unscheduled) twenty-three times from the time 5.5. was returned home until the September 8th hearing, while Ms. Townley saw S.S. approximately seven times during the same time period.

The testimony revealed that S.S.’s physical needs were being provided for by her parents; her emotional needs, however, appeared to be at risk. Specifically, during her three months at home, S.S.’s bed-wetting incidents increased significantly. S.S. also demonstrated outward sexual behavior in the form of sexually acting out on her brother and masturbating. According to both witnesses, although Mr. and Mrs. S. were involved in parenting classes and family therapy and counseling, they were not able to apply what they learned in terms of dealing with S.S.’s emotional needs. For example, it was stressed to Mr. and Mrs. S. from the outset not to punish 5.5. for her bed-wetting. Nonetheless, S.S. received constant verbal and physical punishment for these incidents. Since 5.5. ’s return home, Mrs. S. has expressed her frustration at not knowing how to cope with S.S., and how she is unable to deal with S.S.’s behavior. Both Mr. and Mrs. S. admitted to not knowing what to do when S.S. is acting out. Ms. Horner opined that Mr. and Mrs. S. would not benefit from further counseling because they lack the insight to respond to S.S.’s emotional needs. Ms. Horner’s and Ms. Barzdo’s assessment of S.S.’s situation, after three months with her natural parents, was that S.S. was still not receiving the structure, stability, and nurturing for which she was sent home and, since Mr. and Mrs. S. were not able to respond to S.S. in the way that she needs, despite all the services provided, an alternative home was appropriate.

At the conclusion of the hearing, the trial court entered an order removing S.S. from the care and custody of her parents and placing her in foster care, with a goal of permanency through adoption. This appeal followed.

Mr. and Mrs. S. raise the following issue for our consideration:

Whether the trial court committed reversible error in applying a “best interests” standard rather than a “clear necessity” standard when determining if a child, who has been declared dependent and was previously placed in foster care, but who was returned to her parents on a temporary basis, should remain with her parents or be returned to foster care?

It is a correct statement of the law, as the trial court states in its opinion, that once a child is adjudicated dependent, the issues of custody and continuation of foster care are determined according to a child’s best interests. In Interest of Sweeney, 393 Pa.Super. 437, 439, 574 A.2d 690, 691 (1990). The Sweeney case, unlike the instant case, dealt with an appeal from an order which continued placement of a dependent child in foster care and which adopted a long-range goal of adoption for the child. In the case at hand, we are faced with an entirely different situation. Here, we have a child who was declared dependent, placed in CYS’s custody, placed with her natural parents, and then removed. Given these facts, we are convinced that the instant case is governed by this court’s decision in In Interest of Paul S., 380 Pa.Super. 476, 552 A.2d 288 (1988).

The facts in Paul S. are strikingly similar to the situation at hand. Paul, a nine-year-old, was declared dependent and was placed in custody of CYS. Paul had been residing with his parents for approximately three months on a trial basis when he was ordered to return to foster care. His parents appealed, contending that the trial court erred in applying a “best interest” standard rather than a “clear necessity” standard in determining whether Paul should be returned to foster care.

A child who has been adjudicated dependent may not be separated from his or her parents unless evidence is presented revealing that the separation is clearly necessary. Id. at 480-82, 552 A.2d at 290. After a child has been separated from his or her parents, a different standard applies, namely, custody will be awarded according to the child’s best interests. Id. As we pointed out in Paul S., and apply here as well, “[This is not a case] in which the parents of a child who has been adjudicated dependent, and who remains in foster care, seek to have the child returned to their home[;] [i]n such cases, the best interest standard clearly applies.” Id. Turning to the language of the Juvenile Act for guidance as to which standard to apply, this court recognized the following:

the purposes of the Act include “preserving] the unity of the family whenever possible” and providing for the child’s care “in a family environment whenever possible, separating the child from parents only when necessary for his welfare....” 42 Pa.C.S. § 6301(b)(1), (3) (emphasis added). Furthermore, the Act directs that at each disposition review hearing, the court shall determine, among other things, the continuing necessity for the child’s placement. 42 Pa.C.S. § 6351(f).

Id. at 482, 552 A.2d at 291. The court in Paul S. went on to conclude:

The repeated emphasis in the Act upon the desirability of preserving the family unit persuades us that “clear necessity” is the appropriate standard in the present case. Even though Paul was returned to his natural family on a temporary, trial basis, the family was nevertheless reunited, and the Act does not suggest that a standard less strict than “clear necessity” should apply if Paul’s removal from the family was once again sought.

Id.

Applying the rule stated in Paul S. to the case now before us, we conclude that the trial court erred when, in deciding to return S.S. to foster care, it based its determination on S.S.’s best interests. That portion of the order addressing S.S.’s placement is, therefore, vacated.

Having assumed our conclusion that a clear necessity standard is appropriate, Mr. and Mrs. S. ask that S.S. be returned to them immediately. Additionally, CYS asserts that the trial court committed a harmless error in applying the wrong standard of review and a remand is not necessary. As we ruled in Paul S., however, it is not for this court, but for the trial court as factfinder, to determine whether S.S.’s removal from her family was clearly necessary.

Assuming the trial court finds clear necessity present to place S.S. for adoption consideration, we caution that, in proceeding toward termination of parental rights, the trial court must apply yet another set of standards. Termination of parental rights must be based upon a standard of clear and convincing evidence, as in placement for foster care; again, best interest does not control but rather application of the criteria provided by 23 Pa.C.S.A. § 2551, Grounds for involuntary termination. This section provides the parameters for meeting the specific legal and factual conditions giving rise to the power of the state to terminate parental rights. Accordingly, we remand the case to the trial court to make the necessary determination.

Vacated and remanded. Jurisdiction relinquished.

      . S.S. shall remain in foster care pending the trial court's decision on remand.


author: ROWLEY, President Judge.

text:
    651 A.2d 548
    Tracy PRICE, Appellant, v. Nancy O. BROWN, V.M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1994.
    Filed Dec. 14, 1994.
    Petition for Allowance of Appeal Granted April 7, 1995.

      William G. Halligan, Media, for appellant.
    Audrey L. Jacobsen, Philadelphia, for appellee.
    Before ROWLEY, P.J., and KELLY and CERCONE, JJ.

      . We find it significant that the trial court stated, in its opinion: “While the Court agrees that a dog is personal property, the Court cannot agree that a theory of bailment can or should afford a remedy here.” Opinion, at 2 (emphasis added).

   ROWLEY, President Judge.

Appellant Tracy Price appeals from an order sustaining preliminary objections in the nature of a demurrer and dismissing her complaint. Appellant alleges that the trial court erred in its determination that an action for breach of a bailment agreement would not lie against appellee Nancy O. Brown, a veterinarian, as a matter of law. For the following reasons, we reverse.

We must assess preliminary objections in the nature of a demurrer exactly as does the trial court: we examine only the facts as averred in the complaint, and, admitting as true all material facts set forth therein, as well as all inferences reasonably deducible therefrom, Composition Roofers Local 30/30B v. Katz, 398 Pa.Super. 564, 568, 581 A.2d 607, 609 (1990), analyze whether recovery is permitted under any theory of law, Sutton v. Miller, 405 Pa.Super. 213, 221, 592 A.2d 83, 87 (1991). This Court may affirm an order sustaining preliminary objections in the nature of a demurrer only if it can be stated, with certainty, that the law permits no relief upon the facts averred. Berger v. Ackerman, 293 Pa.Super. 457, 459, 439 A.2d 200, 201 (1981). Any doubt regarding whether a claim for relief has been stated is resolved in favor of overruling the demurrer. Rutherfoord v. Presbyterian-University Hospital, 417 Pa.Super. 316, 322, 612 A.2d 500, 502 (1992).

The sufficiency of appellant’s pleadings must be evaluated within the context of the elements of a bailment, of which there are three: (1) delivery of personal property for some particular purpose, (2) under an express or implied agreement that when the purpose is completed, (3) the personal property will be re-delivered to the bailor. Johnson v. Mathia, 363 Pa.Super. 397, 399, 526 A.2d 404, 405 (1987). If the facts and circumstances support a determination that a bailment exists, the factfinder then determines whether the bailment was structured for the sole benefit of either the bailor or the bailee, or for the mutual benefit of both. Beechwoods Flying Serv. Inc. v. Al Hamilton Contracting Corp., 317 Pa.Super. 513, 519, 464 A.2d 440, 443 (1983), aff'd, 504 Pa. 618, 476 A.2d 350 (1984). If the latter form of bailment is found to exist, the bailee is charged with the exercise of ordinary care and is liable for ordinary negligence. Johnson, 363 Pa.Super. at 399, 526 A.2d at 405.

A cause of action for breach of a bailment agreement arises if the bailor proves a bailment, makes a demand for return of the bailed goods, and the bailee fails to deliver the property or account for its loss. Schell v. Miller N. Broad Storage Co., 142 Pa.Super. 293, 301, 16 A.2d 680, 683-684 (1940); see also 8 Am.Jur.2d Bailments § 311 (1980) (in an action on an implied contract to return the property in good condition, no allegation of specific negligence is necessary). The bailee then has the burden of showing “by clear and satisfactory proof’ that the property was lost and in what manner it was lost, for “[w]hen a bailee has exclusive possession of the goods, the acts attending loss or injury must be particularly within his own knowledge. Consequently, the bailee must excuse or justify a failure to return.” Schell, 142 Pa.Super. at 301, 303, 16 A.2d at 684. If the bailee’s accounting does not disclose a lack of due care, however, the burden of proof shifts back to the bailor to prove the bailee’s negligence. Id. Finally, we note that prior to the enactment of Pa.R.C.P. 1001(b)(1), which abolished the procedural distinctions between trespass and assumpsit, this Court held that a cause of action based on an alleged bailment relationship may be brought in trespass, assumpsit, or replevin. Beechwoods, 317 Pa.Super. at 519, 464 A.2d at 443.

Turning to the complaint, appellant averred the following facts, inter alia: that on August 29, 1991, appellant delivered a ten-month-old English Bulldog to appellee, a licensed veterinarian, for surgical correction of a prolapsed urethra; that appellee accepted delivery of the dog and performed the surgical procedure on August 30, 1991; that appellant visited her dog at appellee’s facility the following day, August 31, 1991, and found the dog to be in physical distress; that an agent of appellee told appellant that the dog would be monitored twenty-four hours a day; that the appellee then closed her office on or about midnight of August 31, 1991, leaving appellant’s dog unattended; that appellant’s dog expired between the evening of August 31, 1991, and September 1, 1991; that appellee’s failure to return the dog to appellant in the same condition of general good health as existed prior to the alleged bailment, or to account for its death, constitutes a breach of a bailment agreement; and that the appellee is therefore liable to appellant for the purchase price of the dog, or $1200.00.

A review of the law of bailments convinces us that it was premature for the trial court to sustain appellee’s preliminary objections, since whether a bailment agreement existed under the facts as averred is a matter for the factfinder. The pleadings herein were sufficient to aver a bailment as a matter of law.

Notwithstanding the fact that appellant has averred sufficient facts to find a bailment of personal property, appellee offers several arguments against finding a bailment under the facts presented. Appellee is quite correct in stating that typical bailment agreements involve inanimate goods, or items of personal property such as automobiles or leased equipment. See Taylor v. Philadelphia Parking Auth., 398 Pa. 9, 156 A.2d 525 (1959); Ferrick Excavating and Grading v. Senger Trucking Co., 315 Pa.Super. 69, 461 A.2d 800 (1983), rev’d, 506 Pa. 181, 484 A.2d 744 (1984) (error for Superior Court to find no bailment existed in absence of complete relinquishment of control; bailee’s exclusive control not a necessary element of bailment). Case law from this and other jurisdictions is replete, however, with evidence that animals may be the subject of bailments. See Peoples-Pittsburgh Trust Co. v. Saupp, 320 Pa. 138, 182 A. 376 (1936) (in determining that appellant was bailee of certain stock, Supreme Court quoted with approval, Jones on Collateral Securities (Pledges), § 396: “Thus if he has taken in pledge domestic animals, he will hold in pledge the young of such animals afterward born”); Scheel v. Shaw, 252 Pa. 451, 97 A. 685 (1916) (when servant procures loan of an animal from his master, relationship of master and servant temporarily dissolves; if servant appropriates animal, he may be prosecuted as a bailee); Conn v. Hunsberger, 224 Pa. 154, 73 A. 324 (1909) (livery-stable keeper and customer have bailor-bailee relationship; bailor not an insurer of animal’s suitableness, but bound to exercise reasonable care to furnish fit animal); Yearsley v. Gray, 140 Pa. 238, 21 A. 318 (1891) (agister or bailee not required to restore animal taken for pasture until adequately compensated; agister has common law lien for animal’s keep); Romero v. Santa Clara County, 83 Cal.Rptr. 758, 3 Cal.App.3d 700 (1970) (dogs are property and in proper cases, owner may sue for their deaths); Karpe v. Great Am. Indem. Co., 11 Cal.Rptr. 908, 190 Cal. App.2d 226 (1961) (cow owner who left animal at ranch to have cow bred by ranch owner’s bull could recover when ranch owner mistakenly sent cow to slaughterhouse along with his own stock, either for breach of bailment contract, negligence, or conversion); Marcus v. E. Agric. Ass’n, Inc., 58 N.J.Super. 584, 157 A.2d 3 (1959) (where owner of a horse places it out for board and pasture, party receiving the animal becomes a bailee; agistment, which is the taking in and feeding or pasturing of horses, cattle or similar animals for reward, is a species of bailment).

Moreover, while both appellee and the trial court suggest that veterinarians should be exclusively subject to regulation under the Veterinary Medicine Practice Act, 63 P.S. § 485.1 et seq., which they find to be not “unlike those statutory provisions governing the practice of other health care providers within the Commonwealth,” Opinion (Furber, J.), 3/18/94, at 4, veterinarians are not exempt from state regulation with respect to the care and keeping of dogs, in addition to the medical care or treatment provided. 3 P.S. § 459-101 et seq.

Both the trial court and appellee next rely upon this Court’s decision in Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983), for the proposition that a “doctor/patient” relationship exists between a veterinarian and the animal treated, and therefore an action brought against a veterinarian must be for professional malpractice, as would a cause of action against a licensed physician. Rather, Durkin involved a negligence action brought against a veterinarian for the death of a racehorse after a drug injection. That part of the decision relied upon by appellee, which considered only whether the trial court erred in refusing to give a res ipsa loquitur instruction, held, as appellee suggests, that no presumption or inference of negligence arises merely because medical treatment to an animal, as is true of medical treatment provided by a physician to a human patient, culminates in a bad result. Id., 313 Pa.Super. at 79-80, 459 A.2d at 419. Since the cause of action was one of malpractice, the Court had no reason to address other possible causes of action.

We believe appellant averred sufficient facts which could allow a fact finder to determine that a bailment agreement existed. Assuming, as we must, that the pleadings and inferences arising therefrom are true, appellant’s dog, an item of personal property, was delivered to a licensed veterinarian for the primary purpose of receiving medical treatment, for which services appellee would be reimbursed. Thus the facts aver a delivery of personal property for a particular purpose which was mutually beneficial to appellant and appellee. The animal received treatment and was in appellee’s custody and control for two days following the completion of the medical procedure. Thus the facts aver appellant’s relinquishment of control and possession of her dog. Leaving aside the averment that appellee failed to monitor appellant’s dog overnight, as the facts aver was promised, and its implications of negligent care, when appellant returned to the hospital to claim her dog, the animal had died. Thus the facts averred a demand and a failure to return the property. The complaint states that no reason for the loss of the animal was provided. Thus the facts aver that no accounting for the loss of the property was offered. The question that arises at this juncture is not whether the veterinarian could only be found liable on a theory of professional malpractice in the provision of medical treatment, but whether an implied bailment agreement could be found, aside from an agreement to provide medical treatment to appellant’s dog.

In Sparrow v. Airport Parking Co. of America, 221 Pa.Super. 32, 38, 289 A.2d 87, 91 (1972), this Court held that a contract of bailment may be implied only where the natural and just interpretation of the acts of the parties warrants such a conclusion; and no bailment can be implied where it appears that it was the intention of the parties, as derived from their relationship to each other and from the other circumstances of the case, that the property was to be held by the party in possession in some capacity other than as bailee. See also, 8 C.J.S. Bailments § 14 (1962). This Court found that a relinquishment of dominion, possession and control over personal property was dispositive on the question of whether an implied bailment contract exists. Sparrow, 221 Pa.Super. at 36, 289 A.2d at 90; See also Taylor, 398 Pa. at 12, 156 A.2d at 527; 8 Am.Jur.2d Bailments § 20 (1980).

We are not persuaded by either the trial court’s statement that it is unaware of any “Pennsylvania decision imposing liability on a veterinarian by reason of his breach of a bailment agreement under circumstances of this nature,” Opinion, at 2 (emphasis added), or appellee’s assertion that there is no precedent that would permit recovery under a theory of bailment for injuries to an animal left for medical care with a licensed veterinarian, Appellee’s Brief at 8 (emphasis added). While interesting and no doubt correct observations, neither is legally relevant to the issue of whether appellant averred sufficient facts to plead a bailment. Moreover,. both statements are grounded in policy considerations, essentially expressing a fear that should a bailment be found under the facts presented by this case, appellee would somehow be strictly liable for the loss of the animal. Rather, once sufficient facts are found to support a finding of an implied bailment agreement, appellant is entitled to an accounting for the loss of her property.

We find no support for the trial court’s position that only one cause of action, negligence, may be brought against a licensed veterinarian, nor do we agree with the trial court that an animal and a veterinarian enjoy the same doctor/patient relationship as do a human being and a physician. A human patient cannot leave his or her liver or heart for treatment and make a subsequent demand for its return; it is the patient who is treated and the patient who has a cause of action against the physician providing medical treatment. A dog, recognized as personal property under the law of this Commonwealth, 3 P.S. § 459-601(a), is incapable of bringing its own cause of action against the veterinarian treating it; its owner must bring suit. Where, as here, the owner chooses to bring a cause of action in bailment rather than negligence, the relevant question for our purposes is whether sufficient facts are presented to support an implied agreement between the parties, not whether the professional status of one of the parties exempts him or her, as a matter of law, from being named as a defendant in such an action.

For the above reasons, we conclude that the trial court erred in not denying appellee’s preliminary objections and providing appellant an opportunity to prove an implied bailment agreement existed.

Accordingly, we reverse the trial court’s order and remand for further proceedings.

Order reversed. Case remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . The trial court stated its belief that appellant’s "position would be stronger” if the appellee had “been the operator of a kennel agreeing to provide temporary lodging for, or maintenance of, the animal,” implying that a veterinarian cannot also be subject to state regulation as is any other operator of a kennel. Opinion, at 5. That is not always the case, for under the "Dog Law," 1982, Dec. 7, P.L. 784, No. 225, art. I, § 101, boarding kennels are subject to, inter alia, licensing requirements, record-keeping requirements, and state inspections for sanitary conditions. 3 P.S. §§ 459-201, 459-207(c), 459-218.
      While excluding only those facilities where the practice of veterinary medicine is performed and "the establishment is covered by the provisions of the [Veterinary Medicine Practice Act],” section 459-102 specifically includes "facilities operated by a veterinarian whether or not this facility is on the same premises as a veterinary hospital” in the definition of boarding kennels to which the regulations apply.

      . And, if a bailment is found, appellant would be, at the least, entitled to an accounting for the loss of her property. Whether such an accounting would disclose evidence of negligence, for which the bailee could be found liable under a theory of bailment, is for the factfinder to determine.

      . See, Miller v. Peraino, 426 Pa.Super. 189, 626 A.2d 637 (1993) (cause of action for intentional infliction of emotional distress cannot legally be founded on veterinarian's behavior toward an animal); Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988) (claim for intentional infliction of emotional distress will not lie for destruction of pet dog; proper measure of damage is value of property prior to destruction), appeal denied, 520 Pa. 605, 553 A.2d 967 (1989).


text:
    651 A.2d 553
    Derrick BERGER, Appellant v. Toni RINALDI.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Dec. 14, 1994.

      John W. Pollins, III, Greensburg, for appellant.
    Dennis J. Slyman, Greensburg, for appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Westmoreland County in favor of defendant/appellee Toni Rinaldi (Rinaldi) and against plaintiff/appellant Derrick Berger (Berger). We reverse the judgment and remand the case for a new trial consistent with this opinion.

This appeal stems from an automobile accident, which occurred on March 2, 1992. After pleadings were filed, the parties stipulated to the following facts:

1. On March 2, 1992, the Plaintiff (Berger) was the operator of a 1987 Buick, Pennsylvania registration XXN-596.
2. Said 1987 Buick was owned by and titled to Plaintiffs mother, Carolyn Berger.
3. Also on March 2, 1992, the Defendant (Rinaldi) was the operator of a 1991 Plymouth, Pennsylvania registration D41131.
4. On the date aforesaid, the Defendant drove her motor vehicle into the rear portion of a vehicle driven by one Lisa Shugars, causing that vehicle to collide with the rear of Plaintiffs vehicle which was stopped for a traffic signal on East Pittsburgh Street in Greensburg, Pennsylvania.
5. As a result of the accident, Plaintiff suffered physical injuries which are not considered “serious” injuries as that term is used in Act 6 of 1990, Section 8, 75 Pa.C.S.A. Section 1705(d).
6. At the time of the accident, Plaintiff and his mother were residents of the same household.
7. At the time of the accident, said 1987 Buick was covered by a Nationwide “Century II” policy of insurance issued to said Carolyn Berger (Plaintiffs mother), which carried a “full tort” option.
8. Under the terms of the policy, Plaintiff was an “insured.”
9. At the time of the accident, Plaintiff was the registered owner of a 1981 Buick which was uninsured.
10. As a result of his failure to maintain financial responsibility for his 1981 Buick motor vehicle, the Plaintiff was denied basic first party benefits under [75] Pa.C.S.A. Section 1714.

Based on the pleadings and joint stipulation, the Honorable Gary P. Caruso rendered a verdict in favor of Rinaldi. Judge Caruso found that Berger failed to carry insurance on his then “currently registered” 1981 Buick and, therefore, was deemed to have chosen the limited tort option. Consequently, Berger was barred from recovering non-economic damages. After the verdict was entered, the case was transferred to the Honorable Charles H. Loughran. Post-trial motions were filed and denied. Thereafter, judgment was entered in favor of Rinaldi and against Berger. This timely appeal followed. On appeal, Berger presents one issue for our consideration:

Does the Motor Vehicle Financial Responsibility Law (MVFRL) preclude the owner of an uninsured motor vehicle not involved in the accident from recovering non-economic loss from negligent third parties?

This issue is one of first impression in this Commonwealth. Initially we note our standard of review in this case. The role of an appellate court in reviewing the trial court’s final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law; findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992); Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991); Porter v. Kalas, 409 Pa.Super. 159, 597 A.2d 709 (1991). When this court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Short v. Metro politan Life Ins. Co., 339 Pa.Super. 124, 488 A.2d 341 (1985). Because this case was submitted on a joint stipulation, the role of this court is confined to determining whether the trial judge committed some error of law.

In response to the failures of Pennsylvania’s No-Fault Act, P.L. 489, No. 176 (1974), the Pennsylvania legislature replaced the No-Fault Act with the MVFRL in 1984. Among other things, the MVFRL reduced unlimited medical coverage to a mandatory $10,000.00 minimum, reduced the amount of income loss benefits from $15,000.00 to $5,000.00, required all policies to include uninsured/underinsured motorist coverage in specified amounts, and eliminated stacking of first party benefits. See 75 Pa.C.S.A. §§ 1711, 1717, 1734. By 1988, however, Pennsylvania automobile insurance rates were the fifth highest in the country.

In an attempt to reduce these spiraling insurance rates, the legislature passed a package of amendments to the MVFRL known as Act 6 of 1990. Act 6 made numerous changes to motor vehicle insurance law in Pennsylvania. These changes were made to redress what most observers believed were the root causes of the automobile insurance crisis — escalating health care costs and the increasing number of automobile tort lawsuits.

The MVFRL provides that “every motor vehicle of the type required to be registered ... which is operated or currently registered shall be covered by financial responsibility.” 75 Pa.C.S.A. § 1786(a). “Financial responsibility” is defined as:

The ability to respond to damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident....

75 Pa.C.S.A. § 1702. See 75 Pa.C.S.A. §§ 1781-1787 (proof of financial responsibility).

Some of the original provisions of the MVFRL, and many of the 1990 amendments to the MVFRL, speak directly to the legislative intent to deter owners of registered vehicles from failing to carry the requisite financial responsibility. See Henrich v. Harleysville Ins. Co., 533 Pa. 181, 184-85, 620 A.2d 1122, 1124 (1993). For example, the MVFRL requires a vehicle owner to provide proof of financial responsibility when the owner’s license is suspended, when the owner is convicted of a traffic offense, or when the vehicle is involved in an accident. 75 Pa.C.S.A. §§ 1783-85 (1990). In addition, section 1714 of the 1984 MVFRL provides that:

An owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.

75 Pa.C.S.A. § 1714.

The 1990 amendments to the MVFRL require proof of financial responsibility for registration and annual inspections. Id. at § 1305(d). Additionally, any owner who operates a motor vehicle or permits such operation upon a highway of this Commonwealth without the requisite financial responsibility commits a summary offense and shall be sentenced to pay a fine of $300.00. Id. at § 1786(f). Upon failing to carry the necessary financial responsibility, the Department of Transportation shall also suspend the owner’s vehicle registration and operating privilege. Id.

Pertinent to this case, Act 6 of 1990 added section 1705 to the Vehicle Code. 75 Pa.C.S.A. § 1705. Section 1705 provides for the election and application of the limited tort and full tort options. Id. To place the tort options into the context in this case, we find it necessary to set forth the text of both alternatives:

A. “Limited Tort” Option — The laws of the Commonwealth give you the right to choose a form of insurance that limits your right ... to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury”....
B. “Full Tort” Option — The laws of the Commonwealth also give you the right to choose a form of insurance under which you maintain an unrestricted right ... to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you ... may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages....

Id. at § 1705(a)(1) (emphasis added). Under these provisions, therefore, an insured who has affirmatively chosen the limited tort option and who has not sustained a “serious injury” will be precluded from recovering non-economic damages. “Non-economic loss” is defined as “pain and suffering and other nonmonetary detriment.” Id. at § 1702.

Here, the trial court relied upon section 1705(a)(5) of the MVFRL. That provision reads:

An owner of a currently registered private passenger motor vehicle who does not have financial responsibility shall be deemed to have chosen the limited tort alternative.

Id. at § 1705(a)(5). The trial court found that because Berger did not maintain the requisite financial responsibility on his “currently registered” 1981 Buick, he was deemed to have chosen the limited tort option. Based on this finding, coupled with Berger’s stipulation that his injuries were not “serious,” the trial court barred Berger from recovering any non-economic losses. See 75 Pa.C.S.A. § 1705(d). In so holding, the trial court quoted the following legislative history of the 1990 amendments to the MVFRL:

Q. Mr. Speaker, just a question, I guess, I am asked most often by Philadelphians and people within my district and [NJortheast Philadelphia. When they choose limited tort— and I read it as “This form of insurance limits your right ... to seek financial compensation for injuries caused by other drivers” — their question is this: They are in an accident with an uninsured motorist. What limits do we place on that uninsured motorist that has no insurance? From the way I read it, an uninsured motorist has full access to the courts. The only thing we do to an uninsured motorist is say, you have a $300 fine and you are suspended for 30 days. My constituents want to know, does an uninsured motorist in Philadelphia have full access to the courts, while someone who chooses limited tort options has limited access to the courts? Could you answer that, please?
A. Mr. Speaker, if you turn to page 24 of the Conference Committee Report, line 10, it says, “An owner of a currently registered ... vehicle who does not have financial responsibility shall be deemed to have chosen the limited tort alternative.” So in fact, what we are doing with this Bill is saying that at best, if you are an uninsured motorist, you are limited in your rights to recovery to cases of non-economic damages only in the event of serious injury, so we did roll back the rights of the uninsured motorist to have a full tort provision....
So what we are doing is that if you are an uninsured motorist, the best that you can do, is avail yourself of [the] limited tort alternative in your actions against someone else____

Trial Court Op. at 4-5 (citing House Legislative Journal pages 213-14, February 7, 1990) (emphasis added).

After studying the various provisions and legislative history of the MVFRL as a whole, and after considering the public policy concerns of this Commonwealth, we find that the Pennsylvania legislators did not intend for section 1705(a)(5) to apply to situations where, as here, the claimant was not operating his uninsured vehicle at the time of the accident. Respectfully, therefore, we must reverse the decision of the trial court.

The objective of all statutory construction is to ascertain and effectuate the legislative intent. 1 Pa.C.S.A. § 1921(a). See Hodges v. Rodriguez, 435 Pa.Super. 360, 645 A.2d 1340 (1994); Callahan v. Federal Kemper Ins. Co., 390 Pa.Super. 201, 568 A.2d 264 (1989); Key Savings & Loan v. Louis John, Inc., 379 Pa.Super. 226, 549 A.2d 988 (1988). The individual provisions of a statute are to be interpreted, whenever possible, in a manner that gives effect to the entire statute. Consulting Engineers v. Licensure Bd., 522 Pa. 204, 560 A.2d 1375 (1989). Furthermore, the legislature is presumed to have intended to avoid mere surplusage; thus, whenever possible, courts must construe a statute so as to give effect to every word contained therein. Key Savings, 379 Pa.Super. at 232, 549 A.2d at 991 (citing Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980)).

Subsection (b) of section 1705 concerns the application of the two tort options. Section 1705(b)(2) provides:

The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle-policy who are not named insureds under another private passenger motor vehicle policy. In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.

75 Pa.C.S.A. § 1705(b)(2) (emphasis added). As of this date, this section has not been interpreted by the appellate courts.

The trial court found that section 1705(b)(2) “only applies to a situation where the insured has a policy of insurance that conflicts with the insurance covering the vehicle in which the insured is an occupant at the time of the accident.” We must differ with this reading because such an interpretation only gives meaning and effect to the second sentence of the section, and ignores the meaning of the first.

We construe section 1705(b)(2) as describing two, mutually exclusive scenarios. Such an interpretation is necessary to avoid surplusage. Key Savings, supra. The latter portion of the section clearly applies to situations where there exists two insurance policies, containing conflicting tort options. In contrast, the former provision, the provision underscored above, applies to circumstances in which only one insurance policy is involved.

Applying section 1705(b)(2) to the facts of this case, we find that Berger is not precluded from pursuing recovery for any/all non-economic losses. The parties stipulated that: under the terms of his mother’s automobile policy, Berger was an “insured” for all intents and purposes; Berger’s mother elected the full tort alternative; and Berger was not a named insured under any other policy of insurance. Under the plain meaning of section 1705(b)(2), therefore, the full tort option elected by mother was imputed to Berger. At the time of the accident, Berger was financially responsible as a resident/relative insured under his mother’s policy. As such, it is not appropriate to apply the mandates of section 1705(a)(5) to situations where, as here, the vehicle involved in the accident is an “insured” vehicle and the driver is an insured and financially responsible individual. On the other hand, if Berger had been driving his currently registered, but uninsured, automobile at the time of the accident, section 1705(b)(2) would not apply, and section 1705(a)(5) would clearly prohibit him from recovering for any non-economic loss.

With respect to which tort option shall apply in any given case, Representative Hayden, who supported the enactment of the 1990 amendments to the MVFRL, stated that, “in virtually every circumstance where there is a question about [which] coverage will apply, there is a conscious attempt to rule in favor of the full tort alternative.” House Legislative Journal page 214, February 7, 1990. Based upon our review of the language and legislative intent of the 1990 amendments, we find that the trial court misapplied the law to the facts of this case. Stahli, supra.

Judgment reversed. Case remanded for a new trial consistent with this opinion. Jurisdiction relinquished.

      . Although the notice of appeal and caption provide that this is an appeal from the verdict rendered on March 30, 1994, judgment was not entered on the verdict until April 27, 1994. We will treat this appeal, therefore, as being from the judgment entered on April 27, 1994.

        . We note that Rinaldi has filed with this court a motion to dismiss Berger's appeal for failure to file post-trial motions. Although not titled "Post-trial Motions," Berger filed a motion for a new hearing within ten days after the entry of the verdict. The motion was entertained and disposed of by Judge Loughran. Via a separate order, therefore, this court denied Rinaldi’s motion to dismiss the appeal.

      . 75 Pa.C.S.A. §§ 1701-1799.7 (1990).

      . Michael deCourcy Hinds, Uninsured Drivers Create Other Kinds of Wreckage, N.Y. Times, Sept. 3, 1990, at 10.

      . Representative Freind, a sponsor of Act 6, stated during the final House debate:
      The beauty of this bill ... is that it attacks on a permanent basis the two root causes for rising rates — health care costs, and more importantly, the pain and suffering claims and lawsuits.

        House Legislative Journal pages 202, 223, February 7, 1990.

      . “First party benefits” are defined as “medical benefits, income loss benefits, accidental death benefits and funeral benefits.” 75 Pa.C.S.A. § 1702.

      . Section 1705 of the MVFRL was modeled after Michigan’s own "verbal threshold” or "limited tort option.” See Mich.Stat.Ann. § 24.13135(1) (Callaghan 1987); Nasser v. Auto Club Ins. Ass’n, 435 Mich. 33, 457 N.W.2d 637 (1990).

      . The MVFRL defines “serious injury” as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S.A. § 1702.

      . We note that section 1705(d) sets forth six exceptions to this general rule.


author: ROWLEY, President Judge:

text:
    651 A.2d 558
    COMMONWEALTH of Pennsylvania v. Thomas STACKFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 13, 1994.
    Filed Dec. 14, 1994.

      Timothy L. Clawges, Carlisle, for appellant.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   ROWLEY, President Judge:

Appellant Thomas Staekfield was convicted after a bench trial on May 20,1993, of two counts of unlawful possession of a controlled substance, 35 P.S. § 780 — 113(a)(16)(A) and § 780-113(a)(31)(i) and (ii)(B), and sentenced to five (5) to ten (10) months incarceration. On appeal, appellant claims that the trial court erred in admitting evidence seized from his pockets pursuant to a search that he alleges exceeded the scope permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in that the officer conducting the frisk of appellant admitted that he felt nothing resembling weapons in appellant’s pockets.

Appellant contends next that, as a matter of policy, admitting evidence seized in this fashion impermissibly creates a “plain feel” exception to the warrant requirement. We need not reach the question of whether Article I, Section 8 of the Pennsylvania Constitution would permit this exception to the warrant requirement, however, because we agree that the trial court erred in failing to suppress the evidence seized, and therefore we reverse.

The standard and scope of appellate review of a trial court’s denial of a motion to suppress is well established: we consider whether the record supports the suppression court’s factual findings, and the legal conclusions drawn therefrom, by reviewing the prosecution’s evidence and only so much of the defense’s evidence as remains uncontradicted within the context of the record as a whole. Commonwealth v. Brundidge, 583 Pa. 167, 170, 620 A.2d 1115, 1116 (1993); Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993). Factual findings unsupported by the evidence may be rejected, Burnside, 425 Pa.Super. at 429, 625 A.2d at 680; Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992), but if the record supports the suppression court’s factual findings, reversal of a suppression court’s actions is justified only if the inferences and legal conclusions drawn therefrom are erroneous, Commonwealth v. Fromal 392 Pa.Super. 100, 111-112, 572 A.2d 711, 717 (1990), appeal denied, 527 Pa. 629, 592 A.2d 1297 (1990).

We find the trial court’s findings of fact, as evidenced in its Opinion and Order, dated September 3, 1993, to be supported by the record and sufficient to justify appellant’s initial detention and subsequent pat-down. However, we find a significant factual finding made by the trial court to be unsupported by the record; the legal conclusion drawn therefrom is therefore erroneous.

The facts, as found by the trial court and supported by the record, are as follows. On May 29, 1992, members of the Carlisle Police force and the state Attorney General’s Office, Bureau of Narcotics, executed a search warrant issued for 111 North Hanover Street, Carlisle. The officers banged on the apartment door, announced that they were policemen and had a search warrant, waited thirty seconds, and, after hearing scurrying noises from within the apartment, proceeded to break down the door to the premises. One of the officers encountered appellant in the kitchen area and told him to get down on the floor; when appellant failed to obey, the officer “assisted him to the ground.” H.T., May 20,1993, at 22. The officer then handcuffed appellant’s hands behind his back “to secure him while the residence was being secured.” Id. at 24. After appellant was secured, the officer conducted a protective pat-down search of appellant’s body, rolling him over on the ground to search front and back, patting down appellant’s pockets in the process. The officer testified that:

A: When I had patted down his pockets I had felt some— what I knew was packaging material or zip-lock baggies, what it felt like from my experience from working drugs. I subsequently did reach in and pulled out numerous zip-lock baggies that had been in his pants pockets. I believe front and back. Some of them had marijuana. And the other one had suspected cocaine residue.

Id. at 25.

The contents of two of the zip-lock baggies field-tested positive for marijuana. The contents of the remaining baggies were not field tested “due to the small amount of the residue.” Affidavit of Probable Cause, June 8, 1992. The officer further testified:

BY THE COURT: There is almost nothing perceptible in them. Was there at least a whitish color to them or something ..
A: Yes. There was a small piece of substance in some of them.

N.T., May 20, 1993, at 40. Appellant was released and subsequently arrested more than a week later, on June 8, 1992.

It is well settled that the police may properly detain persons found on the premises during execution of a search warrant, in order to minimize the possibility of harm to officers and prevent concealment or destruction of evidence. Commonwealth v. Markovitch, 388 Pa.Super. 244, 250, 565 A.2d 468, 471 (1989). Appellant was present on premises that were the subject of a properly issued search warrant, and he does not challenge his detention in this regard. When the officers securing the premises ordered appellant to' fall to the floor, he failed to comply, with the result that he was subsequently placed on the floor, handcuffed by one of the officers, and subjected to a protective frisk for weapons. Appellant does not challenge the officer’s actions in conducting the pat-down, or frisk, of his person, nor would he prevail if he did. It is beyond question that a police officer has a narrowly drawn authority to conduct a reasonable search for weapons, or a protective pat-down, where, as here, the officer reasonably believes that criminal activity is afoot, Commonwealth v. Canning, 402 Pa.Super. 438, 440, 587 A.2d 330, 331 (1991), and that the suspect may be armed and dangerous, Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Because the officer found, or felt, nothing resembling a weapon in the course of the protective pat-down, however, appellant claims that the officer was not permitted to search through appellant’s pockets and seize what was found therein. For the following reasons, we agree.

Subject to certain exceptions, warrantless searches are presumed unreasonable. Commonwealth v. Lindsay, 406 Pa.Super. 638, 643, 595 A.2d 86, 88 (1991), appeal denied, 529 Pa. 647, 602 A.2d 857 (1991). The authority to conduct a warrantless stop and frisk under the rationale of Terry is one such exception. Seizure of contraband viewed by police officers from a lawful vantage point is another such exception, under the so-called “plain view” doctrine. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); see also In the Interest of S.D., 429 Pa.Super. 576, 582-583, 633 A.2d 172, 175 (1993). An additional exception to the warrant requirement was recently carved out by the United States Supreme Court in Minnesota v. Dickerson, — U.S.-, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), in which the Court determined that police may seize non-threatening contraband detected, by touch, during a protective pat-down search, so long as the official search stays within the bounds permitted by Terry. Dickerson, — U.S. at-, 113 S.Ct. at 2136. The Court analogized that where a “plain feel,” in the course of a lawful pat-down, reveals an “object whose contour or mass makes its identity immediately apparent,” a subsequent warrantless seizure is justified. Id., — U.S. at-, 113 S.Ct. at 2137. The Court reasoned that whether the identification of contraband occurs by virtue of an officer’s sight or feel, the probable cause required by the Fourth Amendment as a prerequisite to seizure will nonetheless prevent “excessively speculative seizures.” Id.

Since the Supreme Court’s decision in Dickerson, this Court has had two occasions to decide the propriety of a seizure of contraband resulting from a trained officer’s feeling an object during an otherwise lawful search. In Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993), a warrant-less seizure of contraband hidden in the suspect’s crotch was upheld because the “contour or mass” made itself immediately apparent to the officer conducting an otherwise lawful Terry search. Probable cause to conduct a more intrusive search than would otherwise be permissible under Terry arose when the officer felt a crunchy, anatomically unexpected mass in the suspect’s crotch. Johnson, 429 Pa.Super. at 168, 631 A.2d at 1340.

On the other hand, under the facts presented in S.D., supra, this Court reversed the trial court’s denial of a juvenile suspect’s motion to suppress, finding that while police officers had reasonable suspicion to stop and frisk the juvenile suspect under Terry, there was insufficient evidence to sustain a more intrusive search into the defendant’s pocket to seize fifty vials of cocaine, which the officer could feel during the pat-down. S.D., 429 Pa.Super. at 584-585, 633 A.2d at 176. This Court determined that the record failed to substantiate what the officer thought he felt on conducting the pat-down; in the absence of testimony that the officer felt a possible weapon or that he “recognized the vials as contraband,” the facts did not justify the intrusion into the defendant’s pockets. Id., 429 Pa.Super. at 585, 633 A.2d at 177. The search, therefore, exceeded the scope permissible under Terry and consequently violated the defendant’s constitutional rights. Id. Moreover, this Court, in reaching the foregoing conclusion, reaffirmed that “[ujnder the law of this Commonwealth, a more intrusive search of a suspect’s person following a protective pat-down search would only be justified under a Terry analysis where the officer reasonably believed he had felt what appeared to be a weapon.” Id., 429 Pa.Super. at 582, 633 A.2d at 175.

Under the facts presented in appellant’s case, the Commonwealth maintains that the initial detention, subsequent handcuffing, and pat-down of appellant is justified under Terry, as the officer involved had a reasonable suspicion that appellant could be armed and dangerous. We agree. Moreover, the Commonwealth argues, the subsequent search into appellant’s pockets and resulting seizure of the contents in this case were supported by probable cause, which arose when the officer conducting the patdown “felt what he knew was packaging material or zip-lock baggies from his experience working drugs.” Appellee Brief at 11.

We find the' record does not support the factual conclusion that the officer felt an item that he immediately recognized as contraband, as the Commonwealth and the trial court maintain. A zip-lock baggie is not per se contraband, although material contained in a zip-lock baggie may well be. A close reading of the record in appellant’s case does not support a factual finding that the officer conducting the Terry pat-down recognized a “contour or mass [that] ma[de] its identity immediately apparent[.]” Dickerson, — U.S. at -, 113 S.Ct. at 1237; Johnson, 429 Pa.Super. at 166, 631 A.2d at 1339. The record supports a factual finding that the officer felt a mass that he recognized as a baggie; it does not support a factual finding that the officer felt what he immediately recognized as contraband. Sight unseen, the contents of the baggies that the officer felt in appellant’s pants pockets could as easily have contained the remains of appellant’s lunch as contraband. The record discloses that it was only after the officer reached in and seized the baggies from appellant’s pockets that the contents in two of the baggies were identified, by sight, as a green, leafy material that subsequently field-tested positive for marijuana. Moreover, the residue found in the remaining baggies was not of sufficient quantity to field-test, and the officer did not provide the trial court with an indication of what he thought those baggies contained, as disclosed through the exercise of his tactile sense, prior to reaching into appellant’s pockets. H.T. at 25. See S.D., 429 Pa.Super. at 585, 633 A.2d at 176.

Because the record does not support the trial court’s factual finding that the officer knew by feel what was in the baggies that were in appellant’s pockets, the legal conclusion that sufficient probable cause existed to justify a more intrusive search is error. Under the circumstances of appellant’s case, probable cause may arise from those factors, as seen through the eyes of a trained police officer, that would give rise to a reasonable belief that a criminal offense has been or is being committed. Lindsay, 406 Pa.Super. at 643-644, 595 A.2d at 88. More specifically, the facts available to the officer conducting the search of appellant’s pockets must have been such that he could reasonably believe that the items he felt may have been contraband. Commonwealth v. Hoffman, 403 Pa.Super. 530, 543, 589 A.2d 737, 744 (1991), appeal denied, 530 Pa. 652, 608 A.2d 28 (1992).

This Court’s determination that sufficient probable cause existed to conduct a warrantless search under the facts presented by Lindsay, supra, does not support the Commonwealth’s contention with respect to appellant. Although, as here, the defendant in Lindsay was present on premises subject to a valid search warrant, the defendant in Lindsay was observed by police officers in the act of actively attempting to conceal evidence, which act is, in itself, a crime. Lindsay, 406 Pa.Super. at 644, 595 A.2d at 89. Here, appellant was subdued, placed on the floor and his hands handcuffed behind his back. Absent the officer’s feeling what he reasonably believed to be a weapon, and absent facts in the record to support the officer’s contention that what he was feeling was contraband, probable cause to conduct the more intrusive search through appellant’s pockets did not arise. Rather, the search exceeded the scope of a Terry frisk and patdown, and the evidence seized should have been suppressed.

The above disposition with respect to appellant’s first claim makes it unnecessary for us to reach the constitutional issue of whether the Supreme Court’s decision in Dickerson is applicable under the Pennsylvania Constitution. Commonwealth v. Mason, 483 Pa. 409, 411, 397 A.2d 408, 410 (1979); Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992); see also S.D., 429 Pa.Super. at 584, 633 A.2d at 176.

Judgment of sentence vacated. Case remanded for a new trial. Jurisdiction relinquished.

      . At the hearing held on appellant’s omnibus pre-trial motion, (hereinafter referred to by "H.T.”) held May 20, 1993, the officer conducting the search of appellant testified:
      Q: Now, you are not telling this court that when you conducted the search of Mr. Staekfield and patted him down from the outside that you believed that what you were feeling was any sort of weapon? A: That’s correct. I didn’t feel any weapons on him, no.
      H.T., 5/20/93, at 26.

      . The search warrant and affidavit identified the following items, inter alia, to be searched for and seized: “Cocaine (Schedule II), any item used to package, process, prepare, manufacture, store, or distribute Cocaine, and any items used to inhale, ingest, or inject Cocaine ... And any other controlled substances.” Search Warrant and Affidavit, May 29, 1992.

      . Bureau of Narcotics Agent James D. Tillman testified that "once they were put on the floor they are detained there and patted down to insure that they don’t have weapons on their person[s].” H.T. at 14.